ENVIRONMENTAL PROTECTION AGENCY 

40 CFR part 52 

[EPA-R09-OAR-2011-0046; FRL-_________] 

Approval and Promulgation of Implementation Plans; State of 

California; Interstate Transport of Pollution; Significant 

Contribution to Nonattainment and Interference with Maintenance 

Requirements 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Under the Clean Air Act (“CAA” or “Act”), EPA is 

approving a State Implementation Plan (“SIP”) revision submitted 

by the State of California on November 16, 2007, for the purpose 

of addressing the interstate transport provisions of CAA section 

110(a)(2)(D)(i)(I) for the 1997 8-hour ozone National Ambient 

Air Quality Standards (“NAAQS” or “standards”) and the 1997 fine 

particulate matter (“PM2.5”) NAAQS. Section 110(a)(2)(D)(i) of 

the CAA requires that each State have adequate provisions to 

prohibit air emissions from adversely affecting air quality in 

other States through interstate transport. Specifically, EPA is 

finalizing approval of California’s SIP revision for the 1997 8-

hour ozone and 1997 PM2.5 NAAQS as meeting the requirements of 

CAA section 110(a)(2)(D)(i)(I) to prohibit emissions that will 

contribute significantly to nonattainment of these standards in 

any other State and to prohibit emissions that will interfere 
2 

with maintenance of these standards by any other State. EPA 

proposed to approve these SIP revisions on March 17, 2011 (76 FR 

14616). 

EFFECTIVE DATE: This rule is effective on [FEDERAL REGISTER 

OFFICE: Insert date 30 days after publication in the Federal 

Register]. 

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-

0046 for this action. The index to the docket is available 

electronically at http://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: Rory Mays, Air Planning Office 

(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 

972-3227, mays.rory@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” and “our” refer to EPA.
3 

TABLE OF CONTENTS 

I. Background 

II. Proposed Action 

III. Public Comments and EPA Responses 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated new standards for 8-hour 

ozone (62 FR 38856) and PM2.5 (62 FR 38652). We are taking this 

action in response to the promulgation of these standards (the 

1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS) to address the 

requirements of CAA section 110(a)(2)(D)(i)(I). This action does 

not address the requirements of the 2006 PM2.5 NAAQS or the 2008 

8-hour ozone NAAQS; those standards will be addressed in future 

actions. 

Section 110(a)(1) of the CAA requires States to submit SIPs 

to address a new or revised NAAQS within three years after 

promulgation of such standards, or within such shorter period as 

the EPA Administrator may prescribe. Section 110(a)(2) lists the 

elements that such new SIPs must address, as applicable, 

including section 110(a)(2)(D)(i), which pertains to interstate 

transport of certain emissions. On August 15, 2006, EPA issued a 
4 

guidance memorandum that provides recommendations to States for 

making submissions to meet the requirements of section 

110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 standards 

(2006 Guidance).1

On November 16, 2007, the California Air Resources Board 

(CARB) submitted the “Proposed State Strategy for California’s 

2007 State Implementation Plan” to attain the 1997 8-hour ozone 

and PM2.5 NAAQS (2007 State Strategy).2 Appendix C of the 2007 

State Strategy, as modified by Attachment A,3 contains 

California’s SIP revision to address the Transport SIP 

requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour 

ozone and PM2.5 NAAQS (2007 Transport SIP). The State based its 

submittal on EPA’s 2006 Guidance. As explained in the 2006 

Guidance, the “good neighbor” provisions in section 

110(a)(2)(D)(i) require each State to submit a SIP that contains 

adequate provisions to prohibit emissions from sources within 

 

1 Memorandum from William T. Harnett entitled “Guidance for State 

Implementation Plan (SIP) Submission to Meet Current Outstanding 

Obligations Under Section 110(a)(2)(D)(i) for the 8-hour ozone 

and PM2.5 National Ambient Air Quality Standards,” August 15, 

2006.

2 See transmittal letter dated November 16, 2007, from James N. 

Goldstene, Executive Officer, CARB, to Wayne Nastri, Regional 

Administrator, EPA Region 9, with enclosures, and CARB 

Resolution No. 07–28 (September 27, 2007). 

3 See “Technical and Clarifying Modifications to April 26, 2007 

Revised Draft Air Resources Board’s Proposed State Strategy for 

California’s 2007 State Implementation Plan and May 7, 2007 

Revised Draft Appendices A through G,” included as Attachment A 

to CARB’s Board Resolution 07-28 (September 27, 2007). 
5 

that State from adversely affecting another State in the ways 

contemplated in the statute. Section 110(a)(2)(D)(i) identifies 

four distinct elements related to the evaluation of impacts of 

interstate transport of air pollutants. In this rulemaking EPA 

is addressing the first two elements: (1) significant 

contribution to nonattainment of these NAAQS in any other State, 

and (2) interference with maintenance of these NAAQS by any 

other State. 

II. Proposed Action 

On March 17, 2011, EPA proposed to find that the California 

SIP is adequate to prevent significant contribution to 

nonattainment of, and interference with maintenance of, the 1997 

8-hour ozone NAAQS and the 1997 PM2.5 NAAQS in any other State, 

as required by CAA section 110(a)(2)(D)(i)(I). See 76 FR 14616. 

Our proposed action did not address the remaining two elements 

of CAA section 110(a)(2)(D)(i) regarding interference with 

measures required to prevent significant deterioration of air 

quality or to protect visibility in another State. We intend to 

evaluate and act upon these remaining elements of California’s 

SIP submittal in separate actions, subject to notice and comment 

and publication in the Federal Register. 
6 

For a more detailed discussion of the 2007 Transport SIP, 

the requirements of CAA section 110(a)(2)(D)(i), and the 

rationale for our proposed action, please see our March 17, 2011 

proposed rule (76 FR 14616) and related Technical Support 

Document, both of which can be found in the docket for today’s 

action. 

III. Public Comments and EPA Responses 

The publication of EPA’s proposed rule on March 17, 2011 

(76 FR 14616) started a 30-day public comment period that ended 

on April 18, 2011. During this period, we received a comment 

letter from the Morongo Band of Mission Indians (Morongo) and a 

comment letter from the Pechanga Band of Luiseño Mission Indians 

(Pechanga). We have summarized the comments from the Morongo and 

Pechanga (collectively the “Tribes” or “commenters”) and 

provided our responses below. 

Comment #1: The Tribes assert that neither California nor 

EPA analyzed potential impacts of transported ozone and PM2.5 air 

pollution on their respective reservations or on other Indian 

country immediately downwind of California nonattainment areas, 

and that EPA did not acknowledge their existence as affected, 

downwind governments. The Tribes assert that they are each 

“comparable to a state” with respect to the effect of upwind 
7 

emission sources in California, which contribute overwhelmingly 

to nonattainment in their reservations, and that they are both 

in the process of seeking “Treatment in the Same Manner as a 

State (TAS)” under the CAA. The Tribes also assert that they 

have either received TAS or completed the application process 

for TAS under the Clean Water Act. Finally, the Tribes claim 

that, if EPA were to require that the California SIP “treat the 

Tribe[s] equitably” in addressing the provisions of CAA section 

110(a)(2)(D)(i)(I), then additional control measures for the 

South Coast Air Basin would be needed to prohibit emissions that 

would contribute significantly to nonattainment of the 1997 8-

hour ozone and 1997 PM2.5 NAAQS or interfere with maintenance of 

these standards in their respective reservations, analogous to 

the prohibition against having such effect in any other State. 

Response #1: Section 110(a)(2)(D)(i)(I) of the CAA requires 

that each SIP contain adequate provisions to prohibit any source 

or other type of emissions activity within the State from 

“contribut[ing] significantly to nonattainment” of the NAAQS or 

“interfer[ing] with maintenance” of the NAAQS in “any other 

State.”4 The commenters provide no specific factual or 

 

4 The term “State” is defined in the Clean Air Act as “a State, 

the District of Columbia, the Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, and American Samoa and includes the 

Commonwealth of the Northern Mariana Islands.” CAA section 

302(d). 
8 

analytical support for their claim that emissions from 

California sources contribute significantly to nonattainment or 

interfere with maintenance of the 1997 8-hour ozone or 1997 PM2.5

NAAQS in their respective reservations or other Indian country, 

nor do they provide any support for their assertion that 

evaluation of such impacts under CAA section 110(a)(2)(D)(i) for 

these standards would have resulted in a requirement for 

California to adopt additional control measures for sources in 

the South Coast Air Basin.5 Nevertheless, in response to these 

comments, EPA has considered whether emissions from California 

sources could have the prohibited adverse impacts in the Morongo 

or Pechanga reservations in accordance with the methodologies we 

use to evaluate SIP submittals for these standards under section 

110(a)(2)(D)(i) with respect to transport impacts on states. 

Based on this evaluation, we conclude that California’s SIP 

 

5 Both Tribes acknowledge that they do not currently have TAS 

status under the CAA. As described below, however, EPA has 

evaluated the sufficiency of the State’s SIP submission in light 

of potential impacts on the Tribes’ reservations from sources 

located in surrounding State areas. Thus, we do not need to 

address in this action the question whether CAA section 

110(a)(2)(D)(i)(I) requires that a SIP address impacts on Indian 

country geographically located within the submitting State or 

how the TAS status of the potentially-affected tribe(s) may be 

relevant to that issue. Similarly, we also do not need to 

address the Tribes’ comment regarding TAS under the Clean Water 

Act as that does not affect the analysis of CAA requirements EPA 

conducted for this action. 
9 

currently contains adequate provisions to prohibit such impacts 

for the 1997 8-hour ozone and 1997 PM2.5 NAAQS. 

We began our analysis by reviewing the ozone and PM2.5 air 

quality monitors that we identified as “receptor” locations for 

purposes of evaluating SIPs submitted to address the 

requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour 

ozone or 1997 PM2.5 NAAQS. As described in our proposed rule (76 

FR 14616), EPA evaluated data from existing monitors over three 

overlapping 3-year periods (i.e., 2003-2005, 2004-2006, and 

2005-2007), as well as air quality modeling data, to determine 

which areas are predicted to be violating these NAAQS in 2012, 

and which areas are predicted potentially to have difficulty 

maintaining attainment as of that date. 76 FR 14616 at 14618. 

We identified as “nonattainment receptors” those monitoring 

sites that are projected to be violating the NAAQS in 2012, 

based on the average of these three overlapping periods. Id. 

Separately, we identified as “maintenance receptors” those 

monitoring sites that were violating the NAAQS based on the 

highest single three-year period during 2003-2007, but not over 

the average of the three periods. Id. at 14619, 14623. We 

described these “maintenance receptors” as those monitoring 

sites that remain at risk of slipping into nonattainment in 2012 
10 

if there are adverse variations in meteorology or emissions. 

Id. 

These methodologies for identifying “nonattainment 

receptors” and “maintenance receptors” take into account 

historic variability of emissions at specific monitoring sites 

to analyze whether or not the relevant areas are expected to be 

violating or attaining the NAAQS in 2012. In both the 1998 NOx 

SIP Call6 and the 2005 Clean Air Interstate Rule,7 EPA evaluated 

significant contribution to nonattainment as measured or 

predicted at monitors in a comparable fashion. EPA believes 

that this approach to evaluating significant contribution is 

correct under CAA section 110(a)(2)(D), and EPA’s general 

approach to this threshold determination has not been disturbed 

by the courts.8 As explained in the proposal, EPA is addressing 

interference with maintenance separately in order to address 

concerns that the Agency had not previously given sufficient 

independent meaning to that requirement. 

 

6 See “Finding of Significant Contribution and Rulemaking for 

Certain States in the Ozone Transport Assessment Group Region 

for Purposes of Reducing Regional Transport of Ozone,” 63 FR 

57356, 57371-57372 (October 27, 1998) (“NOx SIP Call”). 

7 See “Rule to Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 

25162 at 25167 (May 12, 2005) (“CAIR”). 

8 Michigan v. U.S. EPA, 213 F. 3d 663, 674-681 (D.C. Cir. 2000); 

North Carolina v. EPA, 531 F.3d 896, 913-916 (D.C. Cir. 2008) 

(upholding EPA approach to determining threshold despite 

remanding other aspects of CAIR). 
11 

Consistent with these methodologies, to determine whether 

emissions from California sources contribute significantly to 

nonattainment or interfere with maintenance of the 1997 8-hour 

ozone or 1997 PM2.5 NAAQS in any other State, EPA evaluated air 

quality monitoring data from the eastern portion of the U.S. 

under consideration in EPA’s Transport Rule Proposal (75 FR 

45210) without regard to the jurisdictional status of different 

areas within each State. See 76 FR 14616 at 14618-14619. EPA 

conducted a similar analysis of air quality data for the western 

U.S. not covered by the Transport Rule Proposal. Id. This 

analysis for western States is embodied in the “Timin Memo.”9,10 

Although by its terms CAA section 110(a)(2)(D)(i)(I) 

explicitly addresses impacts on States, in response to the 

commenters’ concerns, EPA reviewed air quality monitoring data 

 

9 See Memorandum from Brian Timin, EPA Office of Air Quality 

Planning and Standards, “Documentation of Future Year Ozone and 

Annual PM2.5 Design Values for Monitors in Western States,” 

August 23, 2010 (Timin Memo). 

10 In addition to relying upon these methodologies for 

identifying “nonattainment receptors” and “maintenance 

receptors” based on 2003-2007 monitoring data, EPA reviewed more 

recent, preliminary monitoring data for the 2007-2009 period 

available in EPA’s Air Quality System (AQS) database from all 

ozone and PM2.5 monitoring sites in Oregon, Nevada, and Arizona 

and found no violations of the 1997 8-hour ozone or 1997 PM2.5 

standards in these adjacent States during this period. See 76 

FR 14616 at 14621, 14623, and 14625. These data further support 

our findings but are not a necessary basis for our conclusion 

that emissions from California sources do not have the 

prohibited adverse impacts on any other State for the 1997 8-

hour ozone or 1997 PM2.5 NAAQS. 
12 

from monitors located on the Morongo Reservation and on the 

Pechanga Reservation. For both reservations, EPA found that 

ozone and PM2.5 air quality monitoring data is not available for 

the full 2003-2007 period, the time period that provided the 

basis for our evaluation methodology under CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.11 

Thus, neither reservation has a monitor for ozone or for PM2.5

that EPA projected to be violating either NAAQS in 2012, based 

on the average of the three overlapping periods that EPA 

evaluated for these purposes (i.e., 2003-2005, 2004-2006, and 

2005-2007). Additionally, neither reservation has a monitor 

that EPA projected to remain at risk of slipping into 

nonattainment of either NAAQS in 2012, based on the highest 

single three-year period during 2003-2007. Id. EPA therefore 

did not identify any “nonattainment receptors” or “maintenance 

receptors” for these standards on either reservation.12,13 

 

11 For the Morongo Reservation, EPA’s AQS database contains ozone 

monitoring data starting in 2006. See U.S. EPA AQS, Quick Look 

Report for 8-hour ozone, Site ID TT-582-1016 (2003-2011). For 

the Pechanga Reservation, EPA’s AQS database contains ozone 

monitoring data starting in 2008 and PM2.5 monitoring data 

starting in 2010. See U.S. EPA AQS, Quick Look Report for 8-hour 

ozone and PM2.5, Site ID TT-586-0009 (2003-2011). 

12 See Timin Memo at Appendix A and Appendix B. 

13 We note that data from the ozone monitor on the Morongo 

Reservation during the more recent 2006-2011 period appear to 

indicate that the area is violating the 1997 8-hour ozone NAAQS 

(see U.S. EPA AQS, Quick Look Report for 8-hour ozone, Site ID 

TT-582-1016 (2003-2011)). However, EPA has not yet verified the 
13 

Because neither the Morongo Reservation nor the Pechanga 

Reservation contains any “nonattainment receptor” or 

“maintenance receptor” appropriate for purposes of evaluating 

California’s 2007 Transport SIP in accordance with the 

requirements of CAA section 110(a)(2)(D)(i)(I) and the 

analytical approach that EPA is using to evaluate potential 

transport impacts between states, we do not have a basis for 

concluding that emissions from California sources “contribute 

significantly to nonattainment” or “interfere with maintenance” 

of the 1997 8-hour ozone or 1997 PM2.5 NAAQS in either 

reservation at this time. The Tribes’ comments provide no 

specific information to support such a conclusion. 

Furthermore, we note that the Morongo Reservation and most 

of the Pechanga Reservation are located within the geographic 

borders of the Los Angeles-South Coast Air Basin in southern 

California, which is currently designated and classified as an 

“extreme” nonattainment area for the 1997 8-hour ozone NAAQS. 

See 40 CFR 81.305; see also 75 FR 24409 (May 5, 2010) 

(reclassifying South Coast Air Basin from “severe-17” to 

 

validity of these data for regulatory purposes in accordance 

with section 2.5 of 40 CFR part 58, Appendix A. In the event 

that EPA confirms this data is valid and this monitor continues 

to show violations of the 1997 8-hour ozone NAAQS in the future, 

EPA may evaluate whether additional actions are appropriate or 

necessary under the CAA to bring this area into attainment, 

based upon subsequently available data and analyses. 
14 

“extreme” nonattainment for 8-hour ozone NAAQS but deferring 

reclassification of Indian country pertaining to Morongo and 

Pechanga).14 As such, California is already subject to the most 

stringent air quality planning and control requirements for 

ozone nonattainment areas under subpart 2 of part D, title I of 

the CAA. For example, “extreme” ozone nonattainment areas are 

subject to the most stringent New Source Review regulatory 

threshold and offset ratio (CAA sections 182(e), 182(f)) and 

must require that certain electric utility and industrial and 

commercial boilers either primarily burn low-polluting fuels or 

use advanced control technology to reduce emissions of NOx (CAA 

section 182(e)(3)). 

The Los Angeles-South Coast Air Basin is also designated as 

nonattainment for the 1997 PM2.5 NAAQS and, therefore, subject to 

stringent air quality planning and control requirements for PM2.5 

nonattainment areas under subpart 1 of part D, title I of the 

CAA. For example, CAA section 172(c)(1) requires that 

California adopt and implement all reasonably available control 

measures (including, at a minimum, reasonably available control 

technology for stationary sources) that will provide for 

attainment of the PM2.5 NAAQS in this area as expeditiously as 

 

14 The entire Los Angeles-South Coast Air Basin, including Indian 

country located within its borders, is also designated and 

classified as “extreme” nonattainment for the 1-hour ozone 

NAAQS. 40 CFR 81.305. 
15 

practicable. See 40 CFR 51.1010. EPA is currently evaluating 

the nonattainment plans for the Los Angeles-South Coast Air 

Basin submitted by the State of California and the South Coast 

Air Quality Management District to meet these requirements of 

part D, title I of the CAA for the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS. 

Although the fact that areas adjacent to the Morongo 

Reservation and Pechanga Reservation are subject to stringent 

planning and control requirements does not eliminate the 

possibility of pollution transport from these areas, the 

stringency of the control requirements in this particular 

geographic area would be an important element of EPA’s analysis 

under CAA section 110(a)(2)(D)(i)(I). EPA evaluates 

“significant contribution to nonattainment” and “interference 

with maintenance” under section 110(a)(2)(D)(i)(I) by 

considering not only the potential for pollution transport and 

the amount of such transport if it exists, but also the level 

and cost of control in an upwind area that would be necessary to 

prohibit such transport to the downwind area. See Transport 

Rule Proposal, 75 FR 45210 at 45273-45274 (August 2, 2010) 

(citing North Carolina v. EPA, 531 F.3d 896 at 908, 917-920 

(D.C. Cir. 2008), in which the court confirmed that EPA may use 

cost of control as a factor in evaluating interstate transport). 
16 

Thus, a technical finding that pollutants from an upwind area 

are transported to a downwind area does not, in itself, 

constitute a finding of “significant contribution to 

nonattainment” or “interference with maintenance” for regulatory 

purposes under section 110(a)(2)(D)(i)(I) of the CAA. Given 

these considerations, even if we were to conclude that emissions 

from California sources adversely impact air quality at monitors 

suitable for treatment as nonattainment receptors or maintenance 

receptors in the Pechanga or Morongo Reservations, section 

110(a)(2)(D)(i)(I) of the CAA would not necessarily require that 

California adopt additional control measures to address such 

pollution impacts. We could not disapprove California’s SIP 

submission without having completed that analysis and concluded 

that the state needed to impose additional controls in order to 

eliminate significant contribution or prevent interference with 

maintenance, which is a determination which is partially 

dependent upon the cost of control. 

In sum, although by its terms section 110(a)(2)(D)(i)(I) 

explicitly addresses States, in response to these specific 

comments from Morongo and Pechanga, we have conducted a 

preliminary evaluation of potential impacts on the Tribes’ 

reservations based on our current methodology for evaluating 

SIPs submitted to address the requirements of CAA section 
17 

110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and 1997 PM2.5

NAAQS. Based on this evaluation and available air quality 

monitoring data, we have determined that California’s SIP 

contains provisions adequate to satisfy the requirements of CAA 

section 110(a)(2)(D)(i)(I) for these NAAQS. This determination 

does not, however, apply to California’s obligations to address 

interstate transport of pollution under CAA section 

110(a)(2)(D)(i)(I) for other NAAQS, which EPA intends to 

evaluate in separate actions, in accordance with applicable 

requirements and available air quality monitoring data, as 

appropriate. Moreover, if subsequent facts or analyses indicate 

that further action is necessary in this area to address 

nonattainment throughout the South Coast Air Basin, EPA can act 

at a later time after the initial section 110(a)(2)(D) 

submissions to call for revisions of the SIP to provide for 

additional emissions controls if such action is warranted. EPA 

recognizes the commenters’ concerns about the impacts of air 

pollutant emissions throughout the South Coast Air Basin and is 

committed to working with the Tribes and the State to address 

these air quality concerns. 

Comment #2: The Tribes assert that EPA failed to consult 

with them regarding potential impacts on their reservations or 

other federally recognized tribal lands immediately downwind of 
18 

California nonattainment areas, referencing EPA’s “Proposed 

Final Policy on Consultation and Coordination With Indian 

Tribes,” 75 FR 78198 (December 15, 2010) in support of this 

comment. The Tribes assert that this failure to consult or to 

consider the Tribes as “affected ‘state[s]’ subject to 

overwhelming transport emissions from California” is a major 

flaw in EPA’s proposed rulemaking. 

Response #2: EPA endeavors to consult with federally 

recognized tribal governments when Agency actions and decisions 

may have “tribal implications” or affect tribal interests, 

pursuant to long-standing EPA policy on consultation and 

coordination with Indian tribes. See “EPA Policy for the 

Administration of Environmental Programs on Indian Reservations” 

(November 8, 1984); Executive Order 13175, “Consultation and 

Coordination With Indian Tribal Governments,” 65 FR 67249 

(November 9, 2000); “EPA Policy on Consultation and Coordination 

with Indian Tribes” (May 4, 2011). 

Because the California SIP is not approved to apply in 

Indian country located in the State, this action has no 

regulatory consequences for emission sources in Indian country 

and will not impose substantial direct costs on tribal 

governments or preempt tribal law. We note, however, that EPA 

is currently consulting with both Morongo and Pechanga in 
19 

response to their requests for boundary changes to establish 

separate nonattainment areas or, in the alternative, to extend 

the boundaries of adjacent, lower-classified nonattainment areas 

to include the Tribes’ Indian country. See 75 FR 24409, 24411 

(May 5, 2010) (deferring reclassification of the Morongo and 

Pechanga Reservations within the South Coast Air Basin pending 

EPA’s final decisions on the Tribes’ boundary change requests). 

EPA has also initiated a process to consult with interested 

Indian tribes on issues related to the Transport Rule Proposal 

(75 FR 45210, August 2, 2010) and will conclude this 

consultation before making final decisions on those issues. See 

76 FR 1109 at 1118 (January 7, 2011) (requesting comment on 

options for allocating allowances to covered units that might in 

the future be constructed in Indian country located within the 

Transport Rule region). 

Due to a court-ordered deadline to take final action on 

California’s 2007 Transport SIP by May 10, 2011,15 we are 

proceeding with this rulemaking action at this time. We 

encourage both Tribes, however, to participate in other 

processes that are already underway to address their concerns 

regarding cross-boundary air pollution impacts. 

 

15 See WildEarth Guardians v. U.S. EPA (Case No. 4:09-CV-02453-

CW), Consent Decree dated November 10, 2009. 
20 

As to the Tribes’ assertion that EPA’s failure to consider 

them affected “states” subject to overwhelming transport of 

emissions from California is a major flaw in our proposed rule, 

we disagree for the reasons discussed above in Response #1. 

IV. Final Action 

Under CAA section 110(k)(3), EPA is fully approving the 

2007 Transport SIP submitted by CARB on November 17, 2007, as 

adequate to prohibit emissions from California sources that will 

contribute significantly to nonattainment of the 1997 8-hour 

ozone or 1997 PM2.5 NAAQS in any other State, as required by CAA 

section 110(a)(2)(D)(i)(I). EPA is also approving the 2007 

Transport SIP as adequate to prohibit emissions from California 

sources that will interfere with maintenance of these NAAQS by 

any other State, as required by section 110(a)(2)(D)(i)(I). 

Accordingly, we find that the California SIP contains provisions 

adequate to prevent significant contribution to nonattainment 

of, and interference with maintenance of, these NAAQS. 

EPA will address in separate actions, subject to notice and 

comment and publication in the Federal Register, the remaining 

two elements of CAA section 110(a)(2)(D)(i) regarding 

interference with measures required to prevent significant 
21 

deterioration of air quality or to protect visibility in any 

other State. 

V. Statutory and Executive Reviews 

Under the Clean Air Act, the Administrator is required to 

approve a SIP submission that complies with the provisions of 

the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role 

is to approve State choices, provided that they meet the 

criteria of the Clean Air Act. Accordingly, this action merely 

approves State law as meeting Federal requirements and does not 

impose additional requirements beyond those imposed by State 

law. For that reason, this action: 

• is not a "significant regulatory action" subject to 

review by the Office of Management and Budget under 

Executive Order 12866 (58 FR 51735, October 4, 1993); 

• does not impose an information collection burden under 

the provisions of the Paperwork Reduction Act (44 U.S.C. 

3501 et seq.); 

• is certified as not having a significant economic impact 

on a substantial number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 
22 

• does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Public Law 104-4); 

• does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999); 

• is not an economically significant regulatory action 

based on health or safety risks subject to Executive 

Order 13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action subject to 

Executive Order 13211 (66 FR 28355, May 22, 2001); 

• is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air 

Act; and 

• does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 

7629, February 16, 1994). 

In addition, this final rule does not have tribal implications 

as specified by Executive Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved to apply in Indian 
23 

country located in the State and EPA notes that it will not 

impose substantial direct costs on tribal governments or preempt 

tribal law. 

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

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, generally provides that before a rule may take 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 action 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. 804(2). 

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 action for the purposes of judicial 
24 

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. 

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

List of Subjects in 40 CFR Part 52

Air pollution control, Environmental protection, 

Intergovernmental relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and recordkeeping requirements, 

Volatile organic compounds. 

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

___May 10, 2011______ ___/s/________________ 

Date Jared Blumenfeld, 

 Regional Administrator, 

Region IX 

 
25 

Part 52, Chapter I, Title 40 of the Code of Federal Regulations 

is amended as follows: 

PART 52 [AMENDED] 

1. The authority citation for Part 52 continues to read as 

follows: 

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

Subpart F - California 

2. Section 52.220 is amended by adding paragraph 

(c)(386)(i)(ii)(A)(3) to read as follows: 

Section 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(386) * * * 

(i) * * * 

(ii) * * * 

(A) * * * 

(3) 2007 Transport SIP at pages 19-20 (Attachment A) 

(“Evaluation of Significant Contribution to Nonattainment or 

Interference with Maintenance of Attainment Standards in Another 

State”). 

* * * * * 

Section 52.283 Interstate Transport. 

* * * 
26 

(2) The requirements of CAA section 110(a)(2)(D)(i)(I) 

regarding significant contribution to nonattainment of the 1997 

standards in any other State and interference with maintenance 

of the 1997 standards by any other State. 

* * * * *