        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 81
        [EPA-R09-OAR-2008-0467; FRL-8950-2]
        Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro Ozone Nonattainment Areas; Reclassification

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          Under the Clean Air Act, EPA is proposing to grant requests by the State of California to reclassify the following four areas designated as nonattainment for the 1997 8-hour ozone national ambient air quality standard: the San Joaquin Valley area from “serious” to “extreme,” the South Coast Air Basin area from “severe-17” to “extreme,” and the Coachella Valley and Sacramento Metro areas from “serious” to “severe-15.”
          In connection with the reclassifications, EPA is proposing to establish a deadline of no later than 12 months from the effective date of reclassification for submittal of revisions to the Coachella Valley and Sacramento Metro area portions of the California State Implementation Plan (SIP) to meet certain additional requirements for “severe-15” 8-hour ozone nonattainment areas. EPA has already received SIP revision submittals addressing most of the additional SIP requirements for these two areas and has received all of the related SIP revision submittals for San Joaquin Valley and the South Coast Air Basin. The Agency is not proposing a SIP revision schedule for any SIP requirements for which SIP submittals have already been received.
          A number of Indian tribes have Indian country 1
             located within the boundaries of the affected areas. The State of California is not approved to administer any Clean Air Act programs in Indian country, and the relevant Indian tribes have not applied for eligibility to administer programs under the Clean Air Act for their areas. In these circumstances, EPA implements relevant reclassification provisions of the Clean Air Act in these Indian country areas and is proposing that these areas be reclassified in keeping with the classifications of nonattainment areas within which they are located. In connection with this proposed action, EPA has notified the affected tribal leaders and has invited consultation with interested tribes.

              1 “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.”

          DATES:
          Written comments must be received on or before September 28, 2009.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R09-OAR-2008-0467, by one of the following methods:
          1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          2. E-mail: mays.rory@epa.gov.

          3. Fax: 415-947-3579.
          4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

            Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the http://www.regulations.gov or e-mail. http://www.regulations.gov is an anonymous access system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

            Docket: The index to the docket for this action 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., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed directly below.

          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.
        Table of Contents

          I. What is the subject matter of this proposed rule?
          II. What is the background for this proposed action?
          A. What are the National Ambient Air Quality Standards?
          B. What is the standard for 8-hour ozone?
          C. What is a SIP and how does it relate to the NAAQS for 8-hour ozone?
          D. What are the affected California 8-hour ozone nonattainment areas, what are their current classifications, and what is the status of their SIP submittals?
          1. Affected Areas and Their Current Classifications
          2. Status of SIP Submittals
          E. What are the consequences of reclassifications?
          III. What action is EPA proposing?
          A. Granting the State's Requests for Reclassification
          B. Reclassification of Indian Country
          1. Affected Tribes
          2. Evaluation
          3. Effects of Reclassifications on Indian Tribes
          C. Setting Deadlines for Submitting SIP Revisions
          IV. Proposed Action and Request for Public Comment
          V. Statutory and Executive Order Reviews

        I. What is the subject matter of this proposed rule?

        Today's proposed rule provides EPA's response to requests by a state for voluntary reclassifications, under section 181(b)(3) of the Clean Air Act (CAA or “Act”), for certain areas designated as nonattainment for the 1997 8-hour ozone national ambient air quality standard. Specifically, the State of California has requested reclassification to higher classifications for four 8-hour ozone nonattainment areas. These areas include San Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro. We are reviewing these requests under section 181(b)(3) of the Clean Air Act, which provides for “voluntary reclassification” and states: “The Administrator shall grant the request of any State to reclassify a nonattainment area in that State in accordance with Table 1 of subsection (a) of this section to a higher classification. The Administrator shall publish a notice in the Federal Register of any such request and of action by the Administrator granting the request.” See 40 CFR 51.903(b) (“A State may request a higher classification for any reason in accordance with section 181(b)(3) of the CAA”) and 40 CFR 51.903(a) Table 1.

        II. What is the background for this proposed action?
        A. What are the National Ambient Air Quality Standards?
        The CAA requires EPA to establish a National Ambient Air Quality Standard (NAAQS) for certain pervasive pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect public health with an adequate margin of safety and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the air quality levels an area must meet to comply with the CAA.
        B. What is the standard for 8-hour ozone?

        Ozone is a gas composed of three oxygen atoms. It is not usually emitted directly into the air, but at ground level is created by a chemical reaction between volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the presence of sunlight. On July 18, 1997, EPA promulgated an 8-hour ozone standard of 0.08 parts per million (ppm) to replace the less-protective 0.12 ppm 1-hour ozone standard that was established by EPA in 1979. We revoked the 1-hour ozone standard effective June 15, 2005. See 40 CFR 50.9(b) and 69 FR 23858 (April 30, 2004). Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). (See 69 FR 23858, April 30, 2004, for further information).2

            2 Today's proposed rule deals with the classifications and SIP obligations associated with the 8-hour ozone NAAQS promulgated in 1997. On March 27, 2008, EPA revised the level of the 8-hour ozone standard to 0.075 ppm. See 73 FR 16436 for further information. Designations, classifications, and SIP obligations under the 2008 revised ozone standard will be addressed separately in future EPA rulemakings.

        C. What is a SIP and how does it relate to the NAAQS for 8-hour ozone?
        Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the NAAQS established by EPA. Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable State Implementation Plan, or SIP. Each SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive. They may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
        We promulgated final rules to implement the 1997 8-hour ozone NAAQS in two phases. The Phase 1 rule, which was issued on April 30, 2004 (69 FR 23951), establishes, among other things, the classification structure and corresponding attainment deadlines, as well as the anti-backsliding principles for the transition from the 1-hour ozone standard to the 8-hour ozone standard.

        However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 rule. See South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 rule was vacated only with regard to those parts of the rule that had been successfully challenged. See South Coast Air Quality Management Dist. v. EPA, 489 F.3d 1245 (D.C. Cir. 2007). The provisions of the Phase 1 rule that are directly relevant for the purposes of this proposed rule were not among the provisions that were successfully challenged, and they remain effective. Such provisions include the classifications for areas under Title I, Part D, subpart 2 of the CAA and the related 8-hour ozone standard attainment dates.
        The Phase 2 rule, which was issued on November 29, 2005 (70 FR 71612), addresses the remaining SIP obligations for the 1997 8-hour ozone NAAQS, including the SIP elements associated with reasonably available control technology (RACT), reasonably available control measures (RACM), reasonable further progress (RFP), modeling and attainment demonstrations, new source review (NSR), vehicle inspection and maintenance programs (I/M), and contingency measures (for failure to meet RFP and the attainment date).
        In March 2008, EPA found that some ozone nonattainment areas in the nation had failed to submit attainment demonstrations, Reasonable Further Progress (RFP) plans, and Reasonably Available Control Technology (RACT) SIPs. See 73 FR 15416 (March 24, 2008). For three California 8-hour ozone nonattainment areas (Sacramento Metro, Ventura County and Western Mojave Desert), we found that the areas had not submitted, either in part or in full, the RFP plans that applied by virtue of their current ozone classification (i.e., prior to reclassification). See letter dated March 17, 2008 from Wayne Nastri, Regional Administrator, EPA-Region IX, to Mary D. Nichols, Chairman, California Air Resources Board.
        Since our March 17, 2008 findings (published in the Federal Register on March 24, 2008), the State of California has submitted the necessary RFP plans for all three areas (i.e., Sacramento Metro, Ventura County and Western Mojave Desert). By letters dated September 19, 2008, October 2, 2008, and October 2, 2008, respectively, we notified California that we had found the Sacramento Metro, Ventura County and Western Mojave Desert plans that were submitted on the dates listed above to be complete and that the related sanctions clocks begun on March 24, 2008 had been permanently stopped. See letters from Deborah Jordan, Director, Air Division, EPA-Region IX to James Goldstene, Executive Officer, California Air Resources Board, dated September 19, 2008, October 2, 2008, and October 2, 2008, respectively.
        D. What are the affected California 8-hour ozone nonattainment areas, what are their current classifications, and what is the status of their SIP submittals?
        1. Affected Areas and Their Current Classifications
        Effective June 15, 2004, we designated nonattainment areas for the 1997 8-hour ozone NAAQS. At the same time, we assigned classifications to many of these areas based upon their ozone “design value,” in accordance with the structure of Part D, subpart 2 of Title I of the Clean Air Act.3
           See 69 FR 23858 (April 30, 2004) and 40 CFR 51.903(a). The 8-hour ozone designations and classifications for California areas are codified at 40 CFR 81.305. Classifications for four of those 8-hour ozone nonattainment areas are affected by this proposal. As noted previously, these four areas (and their current classifications) are as follows: San Joaquin Valley (serious), South Coast Air Basin (severe-17), Coachella Valley (serious), and Sacramento Metro (serious).

            3 The design value for 8-hour ozone is defined at 40 CFR 51.900(d).

        2.  Status of SIP Submittals

        Table 1 presents the 1-hour ozone classification (i.e., at the time of designation for the 8-hour ozone NAAQS) for each of the four areas along with each area's corresponding current and requested 8-hour ozone classification. A comparison of each area's classification under the 1-hour ozone standard with the area's classification under the 8-hour ozone standard (i.e., when reclassified) shows that the affected areas would, upon reclassification, essentially be returning to their respective classifications under the 1-hour standard.4
           As a result, many SIP submittal requirements for these areas have already been met. Most ozone requirements for these areas were addressed in the 1990s in response to the CAA Amendments of 1990, as well as in response to previous ozone reclassifications under the 1-hour standard. In the paragraphs that follow Table 1, we discuss the status of relevant SIP submittals for each of the four areas. In this instance, the term, “relevant SIP submittals,” refers to those submittals made to satisfy the specific additional requirements triggered by reclassification, not those that already apply by virtue of an area's current classification.

            4 From the standpoint of SIP submittal requirements, there is no distinction between the “severe-15” classification and the “severe-17” classification.

          Table 1—Existing and Future Ozone Classifications

            8-Hour ozone nonattainment area
            1-Hour ozone classification
            Existing8-hour ozone classification

            Requested8-hour ozone classification

            San Joaquin Valley
            Extreme
            Serious
            Extreme.

            South Coast Air Basin
            Extreme
            Severe-17
            Extreme.

            Coachella Valley
            Severe-17
            Serious
            Severe-15.

            Sacramento Metro
            Severe-15
            Serious
            Severe-15.

          San Joaquin Valley. On November 16, 2007, the California Air Resources Board (CARB) requested that EPA reclassify the San Joaquin Valley 8-hour ozone nonattainment area from “serious” to “extreme”. This request was accompanied by a submittal of a SIP revision addressing certain additional SIP requirements that would apply to San Joaquin Valley by virtue of reclassification from “serious” to “extreme,” including RFP, attainment demonstration, contingency measures, and transportation control measures to offset emissions from growth in vehicle miles traveled (CAA section 182(d)(1)(A)). On June 18, 2009, CARB submitted a RACT SIP for San Joaquin Valley addressing stationary sources with potentials to emit 10 tons per year of VOC or NOX or more (i.e., the threshold for “major sources” in “extreme” ozone nonattainment areas). On March 17, 2009, CARB submitted NSR rules consistent with the proposed reclassification of this area to “extreme.” CARB has previously submitted SIP revisions for San Joaquin Valley addressing the clean fuels for boilers requirement under CAA section 182(e)(3) and the major stationary source fees requirement under CAA section 185. See 74 FR 33933, at 33945 (July 14, 2009) and 74 FR 33950 (July 14, 2009; reproposed August 19, 2009), respectively, for EPA proposed actions on those submittals.

          South Coast Air Basin. On November 28, 2007, CARB requested that EPA reclassify the South Coast Air Basin 8-hour ozone nonattainment area from “severe-17” to “extreme.” This request was accompanied by a submittal of a SIP revision addressing certain additional SIP requirements that would apply to the South Coast Air Basin by virtue of reclassification from “severe-17” to “extreme,” including RFP, attainment demonstration, and contingency measures. CARB submitted an “extreme” RACT SIP for the area on January 31, 2007. CARB has submitted NSR rules consistent with the proposed reclassification of this area to “extreme.” See 61 FR 64291 (December 4, 1996) for information regarding South Coast NSR rules. CARB has previously submitted SIP revisions for South Coast Air Basin addressing the clean fuels for boilers requirement under CAA section 182(e)(3). See 61 FR 57775 (November 8, 1996) for EPA's approval of the rule submitted to satisfy the CAA section 182(e)(3) requirement in the South Coast.

          Coachella Valley. In that same November 28, 2007 reclassification request and submittal, CARB requested that EPA reclassify the Coachella Valley 8-hour ozone nonattainment area from “serious” to “severe-15.” The state has made a submittal addressing certain additional SIP requirements that would apply to Coachella Valley by virtue of reclassification from “serious” to “severe-15,” including RFP, attainment demonstration, contingency measures, and transportation control measures to offset emissions from growth in vehicle miles traveled (CAA section 182(d)(1)(A)).5
           CARB submitted a “severe-15” RACT SIP for the area on January 31, 2007. CARB has submitted NSR rules consistent with the proposed reclassification of this area to “severe-15.” See 61 FR 64291 (December 4, 1996) for information regarding NSR rules that apply within Coachella Valley. CARB has not yet submitted a SIP revision addressing the CAA section 185 fees requirement for Coachella Valley.

            5 CARB's November 28, 2007 submittal included an attainment demonstration plan as a “severe-15” area for Coachella Valley, but included the RFP plan for informational purposes only, effectively withholding the “severe-15” RFP plan from submittal to EPA, due to concerns about litigation and EPA policy on use of out-of-area reductions in RFP plans. CARB subsequently withdrew this withholding request in a letter to EPA dated February 19, 2008. For administrative SIP completeness and final Agency action purposes, EPA intends to treat the RFP plan for Coachella Valley as having been submitted on February 19, 2008.

          Sacramento Metro. By letter dated February 14, 2008, CARB requested that EPA reclassify three California areas designated nonattainment for the 8-hour ozone standard: Ventura County,6

          Sacramento Metro,7
           and Western Mojave Desert.8

           With respect to Sacramento Metro, CARB requested reclassification from “serious” to “severe-15.” On April 17, 2009, CARB submitted a SIP revision for the Sacramento Metro nonattainment area addressing certain additional SIP requirements that would apply to the Sacramento Metro area by virtue of reclassification from “serious” to “severe-15,” including RFP, attainment demonstration, contingency measures, and transportation control measures to offset emissions from growth in vehicle miles traveled (CAA section 182(d)(1)(A)). CARB has also submitted “severe-15” area RACT SIPs (i.e., implementing RACT for sources with potential to emit 25 tons per year of VOC or NOX or more) for all air districts within the Sacramento Metro area. For New Source Review, CARB has submitted a “severe-15” area SIP only for the Yolo-Solano and El Dorado portions of the Sacramento Metro area, and CARB has submitted a SIP revision addressing the CAA section 185 fees requirement only for the Sacramento Metropolitan AQMD portion of the Sacramento Metro area. See 68 FR 51184 (August 26, 2003) for EPA's approval of Sacramento Metropolitan AQMD's fees rule.

            6 On May 20, 2008 (73 FR 29073), EPA took final action to grant the State's request to reclassify Ventura County from “moderate” to “serious,” effective June 19, 2008. See 73 FR 29073 (May 20, 2008). In our May 20, 2008 final rule, we stated that we will propose in a separate document a schedule for required plan submittals for Ventura County under the new classification. However, on June 27, 2008, CARB submitted a SIP revision for Ventura County addressing certain additional SIP requirements that apply to Ventura County by virtue of reclassification from “moderate” to “serious,” including RACT, RFP, attainment demonstration, and contingency measures. CARB has previously submitted SIP revisions for Ventura County addressing the enhanced monitoring requirement under CAA section 182(c)(1), the enhanced vehicle inspection and maintenance (I/M) requirement under CAA section 182(c)(3), and the clean-fuel vehicles requirement under CAA section 182(c)(4). See 62 FR 1150 (January 8, 1997) and 64 FR 46849 (August 27, 1999) for EPA's approvals related to the I/M program and the clean-fuel vehicles requirement, respectively. In addition, CARB has submitted NSR rules consistent with the reclassification of this area. See 66 FR 76567 (December 7, 2000) for EPA's approval of Ventura County's NSR rules. Since CARB has submitted SIP revisions addressing all of the additional requirements for Ventura County that apply by virtue of reclassification from “moderate” to “serious,” we will not be proposing a schedule for any additional SIP revisions for Ventura County as a “serious” area under the 1997 8-hour ozone standard.

            7 The Sacramento Metro 8-hour ozone nonattainment area includes all of Sacramento County and Yolo County, and portions of El Dorado, Placer, Solano, and Sutter Counties. The applicable air districts include Sacramento Metropolitan Air Quality Management District (AQMD), Yolo-Solano AQMD, El Dorado County AQMD, Placer County Air Pollution Control District (APCD), and Feather River AQMD.

            8 CARB has requested that the Western Mojave Desert 8-hour ozone nonattainment area be reclassified from “moderate” to “severe-17.” EPA will take action on CARB's reclassification request for Western Mojave Desert in a separate rulemaking.

        E. What are the consequences of reclassifications?

        By granting a state's request to reclassify an ozone nonattainment area to a higher classification, EPA must address submittal deadlines for SIP requirements that have become applicable to an area as a result of its higher classification. Such SIP requirements include submittals that demonstrate RACT level of control for all stationary sources with potentials to emit at lower “major source” emissions thresholds, RFP, and attainment. We note, however, that while the state is generally provided time to submit SIP revisions, there are certain requirements that would be triggered upon the effective date of the reclassification, such as lower applicability (or “de minimis”) thresholds under our General Conformity rule (see 40 CFR 93.153(b)(1)). For Federal actions proposed in San Joaquin Valley, the de minimis threshold under EPA's General Conformity rule would drop from 50 tons per year to 10 tons per year for VOC or NOX. In the South Coast, the de minimis threshold would drop from 25 to 10 tons per year. In Coachella Valley and Sacramento Metro, the de minimis threshold would drop from 50 to 25 tons per year. See 40 CFR 93.153(b)(1). Under EPA's General Conformity rule, Federal agencies bear the responsibility of determining conformity of actions in nonattainment and maintenance areas that require Federal permits, approvals, or funding.

        In regards to Title V operating permit programs and the requirements for SIPs regarding review of new or modified major stationary sources (“new source review”), the reclassifications proposed herein would not lower the “major source” applicability thresholds required in a revised SIP because the statutory thresholds that applied by virtue of the areas' classifications under the 1-hour ozone standard continue to apply as anti-backsliding measures for the 8-hour ozone standard (see South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) rehearing denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court granted the petitions for review)), and the new 8-hour ozone classification for each of the four subject areas, as reclassified, would be the same as the area's corresponding 1-hour ozone classification (see Table 1 above).9

            9 In EPA's phase 1 ozone implementation rule, EPA made NSR applicability thresholds dependent upon the status and classification of an area under the 8-hour ozone standard. The effect of the ruling in the South Coast Air Quality Management Dist. v. EPA case is to restore NSR applicability thresholds pursuant to the classifications previously in effect for areas designated nonattainment for the 1-hour ozone standard. See EPA memorandum from Robert J. Meyers, “New Source Review (NSR) Aspects of the Decision of the U.S. Court of Appeals for the District of Columbia Circuit on the Phase 1 Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standards (NAAQS),” dated October 3, 2007. As provided in CAA sections 501 and 502(a) and 40 CFR 70.2, 70.3(a), 71.2 and 71.3(a), the thresholds at which a source is required to apply for and operate a Title V operating permit are linked to the NSR “major source” applicability threshold.

        III. What action is EPA proposing?
        A. Granting the State's Requests for Reclassification
        We find that the plain language of section 181(b)(3) mandates that we approve voluntary reclassification requests,10
           and thus, EPA intends to take final action granting the State's request for the following voluntary reclassifications: the San Joaquin Valley area from “serious” to “extreme”; the South Coast Air Basin area from “severe-17” to “extreme”; and the Coachella Valley and Sacramento Metro areas from “serious” to “severe-15.” Upon the effective date of a final action granting the reclassifications, these four areas will be required to attain the 8-hour ozone NAAQS as expeditiously as practicable, but not later than the applicable maximum attainment period set forth in 40 CFR 51.903(a), Table 1: June 15, 2024 for San Joaquin Valley and the South Coast Air Basin; and June 15, 2019 for Coachella Valley and Sacramento Metro.11

            10 The reclassification requests submitted by CARB do not explicitly address Indian country located within the various ozone nonattainment areas. We assume that CARB's request relates only to the portions of the nonattainment areas that lie outside of Indian country.

            11 If today's action is finalized as proposed, the new attainment dates would apply area-wide to both State lands and Indian country located therein, but unlike the State of California, the Indian tribes located within the four subject areas would not be subject to specific plan submittal and implementation deadlines under the new ozone classifications, such as plan submittals discussed in subsection III.C of this document.

        B. Reclassification of Indian Country
        1. Affected Tribes

        Table 2 lists the tribes that have Indian country geographically located in the nonattainment areas at issue in this proposal. As shown in Table 2, 21 tribes are located within the four areas: seven in San Joaquin Valley, seven in South Coast, four in Coachella Valley, and three in Sacramento Metro.

          Table 2—Indian Tribes Located in Areas Subject to Reclassifications

            San Joaquin Valley
            South Coast
            Coachella Valley
            Sacramento Metro

            Big Sandy Rancheria of Mono Indians (including the Big Sandy Rancheria)
            Cahuilla Band of Indians (including the Cahuilla Reservation)
            Agua Caliente Band of Cahuilla Indians (including the Agua Caliente Indian Reservation)
            United Auburn Indian Community (including the Auburn Rancheria).

            Cold Springs Rancheria of Mono Indians (including the Cold Springs Rancheria)
            Morongo Band of Mission Indians (including the Morongo Reservation)
            Augustine Band of Cahuilla Mission Indians (including the Augustine Reservation)
            Rumsey Indian Rancheria of Wintun Indians (including the Rumsey Indian Rancheria).

            North Fork Rancheria of Mono Indians (including the North Fork Rancheria)
            Pechanga Band of Luiseño Mission Indians (including the Pechanga Reservation)
            Cabazon Band of Mission Indians (including the Cabazon Reservation)
            Shingle Springs Band of Miwok Indians [including the Shingle Springs Rancheria (Verona Tract)].

            Picayune Rancheria of Chukchansi Indians (including the Picayune Rancheria)
            Ramona Band of Cahuilla (including the Ramona Band)
            Torres Martinez Desert Cahuilla Indians (including the Torres-Martinez Reservation)

            Santa Rosa Rancheria Tachi Yokut Tribe (including the Santa Rosa Rancheria)
            San Manuel Band of Serrano Mission Indians (including the San Manuel Reservation)

            Table Mountain Rancheria (including the Table Mountain Rancheria)
            Santa Rosa Band of Cahuilla Mission Indians (including the Santa Rosa Reservation)

            Tule River Indian Tribe (including the Tule River Reservation)
            Soboba Band of Luiseño Mission Indians (including the Soboba Reservation)

        2. Evaluation

        We have considered the relevance of the State's reclassification requests to reclassification of these tribes' Indian country located within the various nonattainment areas. 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. CAA actions in Indian country would thus generally be taken either by EPA, or by an eligible Indian tribe itself under an EPA-approved program. In this instance, none of the affected tribes has applied under CAA section 301(d) for treatment-in-a-similar-manner-as-a-state for purposes of reclassification requests under section 181(b)(3), and none operates any relevant EPA-approved CAA regulatory program (e.g., a tribal implementation plan). In addition, the CAA does not require Indian tribes to develop and seek approval of air programs, and—pursuant to our authority in CAA section 301(d)—EPA has interpreted relevant CAA requirements for submission of air programs as not applying to tribes. See 40 CFR section 49.4. In these circumstances, EPA is the appropriate entity to administer relevant CAA programs in Indian country. EPA is proposing to directly administer CAA section 181(b)(3) and reclassify Indian country geographically located in the nonattainment areas that are the subject of the State's reclassification request, 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. Section 301(a) authorizes the Administrator “to prescribe such regulations as are necessary to carry out his functions under the [the Act.]” Further, section 301(d) provides:

          In any case in which the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provision so as to achieve the appropriate purpose.

        While tribes may choose to apply for eligibility to adopt implementation plans and seek reclassification of their areas in a manner similar to states, tribes need not do so. For the following reasons, EPA is proposing to directly administer section 181(b)(3) and reclassify these Indian country areas in order to avoid inappropriate and administratively infeasible results.12

            12 Consistent with this discretionary authority, EPA is also authorized to promulgate such federal implementation plan provisions as are necessary or appropriate to protect air quality in the absence of an approved tribal implementation plan. See 40 CFR section 49.11. EPA is continuing to evaluate air quality issues throughout Indian country located in these nonattainment areas. At this point, we do not believe that it is necessary or appropriate to promulgate an RFP, attainment, or RACT FIP for any of the Indian country areas located within the four nonattainment areas. EPA intends to consult with the relevant Indian tribes regarding this issue.

        Ground-level ozone continues to be a pervasive pollution problem in areas throughout the United States. Ozone and precursor pollutants that cause ozone can be transported throughout a nonattainment area. Therefore, boundaries for nonattainment areas are drawn to encompass both areas with direct sources of the pollution problem as well as nearby areas in the same airshed. Initial classifications of nonattainment areas are coterminous with, that is, they match exactly, their boundaries. EPA believes this approach best ensures public health protection from the adverse effects of ozone pollution. Therefore, it is generally counterproductive from an air quality and planning perspective to have a disparate classification for a land area located within the boundaries of a nonattainment area, such as the Indian country contained in the ozone nonattainment areas at issue here. Moreover, violations of the eight-hour ozone standard, which are measured and modeled throughout the nonattainment areas, as well as shared meteorological conditions, would dictate the same result. Furthermore, emissions changes in lower-classified ozone areas could hinder planning efforts to attain the NAAQS within the overall area through the application of less stringent requirements relative to those that apply in the areas with higher ozone classifications.

        Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified. With regard to the Indian country at issue in this proposal, EPA has also taken into account other factors. For example, the likelihood of attainment by the applicable deadline under the current classification is an appropriate consideration for reclassifying Indian country within the larger nonattainment areas.13
           If EPA believes it is likely that a given ozone nonattainment area will not attain the ozone NAAQS by the applicable attainment date, then it may be an additional reason why it is appropriate to maintain a uniform classification within the area and thus to reclassify the Indian country consistent with the State's request for the portion of the area within State jurisdiction. On the other hand, if meeting the attainment date were still a reasonable possibility, then it conceivably may be appropriate for EPA to decide to defer reclassification of Indian country notwithstanding the State's request for reclassification of the portion of the nonattainment area subject to State Clean Air Act programs and notwithstanding the generally weighty considerations discussed above that support the retention of a single uniformly-classified nonattainment area as opposed to the creation of islands of differently-classified nonattainment areas within the larger nonattainment area. Depending on the circumstances, other factors may also provide justifications for refraining from reclassifying Indian country in conjunction with granting a State's request for voluntary reclassification of State lands in the same nonattainment area.

            13 In this action, we are not reconsidering the boundaries of the nonattainment areas for the 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS, but we expect to continue to discuss boundary issues with Tribes that have expressed concerns about their inclusion within large nonattainment areas. To date, such Tribes include the Morongo Band of Mission Indians and the Pechanga Band of Luiseño Mission Indians whose concerns relate to their inclusion within the South Coast Air Basin. These two tribes have recently submitted boundary redesignation requests to EPA for which EPA is considering appropriate action.

        With respect to the areas that are the subject of this proposed action, we have evaluated the likelihood of attainment by the area's existing attainment deadline, based on information that is currently available. This evaluation was aided by the fact that CARB has already submitted attainment demonstrations for these four areas that are intended to support later attainment dates under a new, higher classification. In the discussion that follows, EPA is not determining which new attainment date is as expeditious as practicable nor whether these demonstrations are approvable.

          San Joaquin Valley. For San Joaquin Valley under the current classification (“serious”), the 8-hour ozone NAAQS attainment date is as expeditious as practicable but not later than June 15, 2013 (i.e., nine years from the effective date of designation). The San Joaquin Valley Unified Air Pollution Control District's San Joaquin Valley 2007 Ozone Plan (April 30, 2007) (“2007 Ozone Plan”) contains information on current ozone levels, emissions trends, and the attainment strategy, and provides a basis for assessing the likelihood of attainment prior to June 15, 2013.

        The 2007 Ozone Plan describes the meteorological and topographic factors that exacerbate ozone conditions within San Joaquin Valley and that make efforts to improve air quality particularly challenging. It shows that current ozone levels are well above the NAAQS at many locations within the Valley. It projects, based on the results of photochemical modeling, that attainment of the 8-hour ozone NAAQS throughout the Valley will require an additional decrease from existing levels of 75% in NOX emissions. Most of these reductions are expected to occur from regulatory measures already adopted or expected to be adopted in the relatively near future, but the emissions reductions benefits from many of the measures, particularly those related to mobile sources, rely on vehicle turnover and thus take years to reach their full potential. Thus, based on the information currently available, it appears likely that the area will not attain by June 15, 2013.
        The State has requested reclassification of San Joaquin Valley to “extreme,” which would extend the 8-hour ozone NAAQS attainment date by 11 years to no later than June 15, 2024. The plan indicates that attainment by June 15, 2019, the attainment date for the next higher classification (i.e., “severe-15”), is also unlikely given the magnitude of emissions reductions needed for attainment and the reliance on vehicle turnover.14
           In addition, it highlights the need for the highest level of air pollution control to attain the ozone NAAQS within the Valley, and for ozone, the highest level of control is triggered by a classification of “extreme.” Therefore, in light of the considerations outlined above that support retention of a uniformly-classified ozone nonattainment area, and additional circumstances arguing for an attainment date well beyond the date applicable under the current classification, we propose to reclassify the Indian country areas within the San Joaquin Valley nonattainment area to “extreme.”

            14 EPA has not yet taken action on the 2007 Ozone Plan, which was submitted to EPA on November 17, 2007 by the State of California as a revision to the California SIP. We will take action on the 2007 Ozone plan in a separate rulemaking. When we do take action on the plan, EPA will make a determination as to whether the plan provides for expeditious attainment and meets the other requirements for RFP, attainment, and contingency measures (and other measures required under the extreme classification).

          South Coast. For South Coast under the current classification (“severe-17”), the 8-hour ozone NAAQS attainment date is as expeditious as practicable but not later than June 15, 2021 (i.e., 17 years from the effective date of designation). We have reviewed the South Coast Air Quality Management District's Final 2007 Air Quality Management Plan (June 2007) (“2007 AQMP”) for information on current ozone levels, emissions trends, and the attainment strategy to assess the likelihood of attainment prior to June 15, 2021.

        The 2007 AQMP describes current ozone conditions and the magnitude of the emissions reductions that would be needed to attain the ozone NAAQS. Despite an extensive array of measures already adopted and implemented to reduce stationary, area and mobile emissions sources, the plan's modeling analysis projects that the South Coast would still need to reduce emissions by approximately 120 tons per year of VOC and 400 tons per year of NOX from new measures to attain the standard. Given the extent to which sources have already been regulated in the South Coast, the 2007 AQMP relies on new and advanced control technologies, referred to as “black box” measures, to reach the lower level of emissions needed for attainment, and such measures necessarily require more lead time than control technologies already in use. Thus, based on the information currently available, it appears likely that additional time beyond 2021 will be necessary to attain the standard.15

            15 The 2007 AQMP was submitted to EPA on November 28, 2007 as a revision to the California SIP. EPA is not making a determination in this document as to whether the plan provides for expeditious attainment and meets the other requirements for RFP, attainment, and contingency measures (and other measures required under the extreme classification) but will do so in a separate rulemaking when we take action on the 2007 AQMP as required under the CAA.

        The State has requested reclassification of South Coast to the next higher level, i.e., to “extreme,” which would extend the 8-hour ozone NAAQS attainment date by 3 years to no later than June 15, 2024. In light of the considerations outlined above that support retention of a uniformly-classified ozone nonattainment area, and the information supporting an attainment date beyond the date applicable under the current classification, we propose to reclassify the Indian country areas within the South Coast to “extreme.”

          Coachella Valley. For Coachella Valley under the current classification (“serious”), the 8-hour ozone NAAQS attainment date is as expeditious as practicable but not later than June 15, 2013 (i.e., nine years from the effective date of designation). We have reviewed chapter 8 (“Future Air Quality—Desert Nonattainment Areas”) of the South Coast Air Quality Management District's Final 2007 Air Quality Management Plan (June 2007) (“2007 AQMP”) for information on current ozone levels, emissions trends, and the likelihood of attainment prior to June 15, 2013.
        The 2007 AQMP describes the nature of the ozone problem in Coachella Valley as primarily a function of transport of ozone and ozone precursors in the Valley from the upwind South Coast. The modeling analysis conducted for the 2007 AQMP shows a gradual decline in ozone concentrations in the wake of declining emissions in the South Coast, but indicates that the pace of the reductions would not result in ozone concentrations that meet the NAAQS until after 2013.16

            16 The Coachella Valley 8-hour ozone plan is included within the 2007 AQMP, which was submitted to EPA on November 28, 2007 as a revision to the California SIP. EPA is not making a determination in this document as to whether the plan provides for expeditious attainment and meets the other requirements for RFP, attainment, and contingency measures (and other measures required under the severe-15 classification) but will do so in a separate rulemaking when we take action on the 2007 AQMP as required under the CAA.

        The State has requested reclassification of Coachella Valley to the next higher level, i.e., to “severe-15,” which would extend the 8-hour ozone NAAQS attainment date by 6 years to no later than June 15, 2019. In light of the considerations outlined above that support retention of a uniformly-classified ozone nonattainment area and the information supporting an attainment date beyond the date applicable under the current classification, we propose to reclassify the Indian country areas within Coachella Valley to “severe-15.”

          Sacramento Metro. For Sacramento Metro under the current classification (“serious”), the 8-hour ozone NAAQS attainment date is as expeditious as practicable but not later than June 15, 2013 (i.e., nine years from the effective date of designation). We have reviewed the Sacramento Regional 8-Hour Ozone Attainment and Reasonable Further Progress Plan (December 19, 2008) (“2008 Sacramento Ozone Plan”) for information on current ozone levels, emissions trends, and the likelihood of attainment prior to June 15, 2013.

        The 2008 Sacramento Ozone Plan presents emissions inventories for existing conditions and projects baseline emissions for various future years. These inventories show that mobile sources (on-road and non-road) contribute approximately 60% of the total VOC and 90% of the total NOX in this nonattainment area. Given the predominance of mobile source emissions in the overall inventory, the plan concludes that the region needs to rely on the longer term emission reductions strategies from state and federal mobile source control programs and that, as a result, the 2013 attainment date cannot be met.17

            17 The 2008 Sacramento Ozone Plan was submitted to EPA on April 17, 2009 as a revision to the California SIP. EPA is not making a determination in this document as to whether the plan provides for expeditious attainment and meets the other requirements for RFP, attainment, and contingency measures (and other measures required under the severe-15 classification) but will do so in a separate rulemaking when we take action on the 2008 Sacramento Ozone Plan as required under the CAA.

        The State has requested reclassification of Sacramento Metro to the next higher level, i.e., to “severe-15,” which would extend the 8-hour ozone NAAQS attainment date by 6 years to no later than June 15, 2019. In light of the considerations outlined above that support retention of a uniformly-classified ozone nonattainment area and the information supporting an attainment date beyond the date applicable under the current classification, we propose to reclassify the Indian country areas within Sacramento Metro to “severe-15.”
        3. Effects of Reclassifications on Indian Tribes
        For the Tribes whose Indian country lies within the four subject nonattainment areas, the effect of reclassification would be to lower the de minimis threshold under EPA's General Conformity rule (40 CFR part 53, subpart B) as described above in section II.E of this document. As also noted in section II.E of this document, under EPA's General Conformity rule, Federal agencies bear the responsibility of determining conformity of actions in nonattainment and maintenance areas that require Federal permits, approvals, or funding. Such permits, approvals or funding by Federal agencies for projects in these areas of Indian country may be more difficult to attain because of the lower de minimis thresholds.

        With respect to review of new or modified major stationary sources (“new source review”) and Title V operating permits, the proposed reclassifications would not lower the applicable “major source” thresholds because the thresholds for the purposes of NSR and Title V that had applied by virtue of the areas' classifications under the 1-hour ozone standard continue to apply as anti-backsliding measures under the 8-hour standard (see South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) rehearing denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court granted the petitions for review)), and the new 8-hour ozone classification for each of the four subject areas, as reclassified, would be the same as the area's corresponding 1-hour ozone classification (see Table 1 of this document).
        EPA implements NSR in Indian country areas located within designated nonattainment areas unless EPA has approved an NSR program for such areas. Where EPA is the implementing agency, EPA implements NSR through promulgation of a Federal Implementation Plan (FIP) establishing an NSR program in a given Indian country area. EPA has not promulgated an NSR FIP for any of the areas of Indian country in the four subject nonattainment areas. EPA could promulgate an NSR FIP for any given Indian country area within the four subject nonattainment areas if a new or modified major stationary source were to locate within these areas, but such a FIP would be based on the same major source applicability thresholds regardless of whether the Indian country areas are reclassified, as explained above.

        On August 21, 2006 (71 FR 48696), EPA proposed a FIP that would extend Appendix S (“Emission Offset Interpretive Ruling”) in 40 CFR part 51 to Indian country within nonattainment areas until replaced by an EPA-approved NSR implementation plan for a given area of Indian country. Extension of Appendix S to Indian country would alleviate the potential necessity for EPA to promulgate area-specific NSR FIPs for Indian country located within the four subject nonattainment areas. Please refer to our August 21, 2006 proposed rule for a detailed explanation of NSR in nonattainment areas of Indian country (71 FR 48696, at 48718-48719). Until EPA finalizes action to extend Appendix S to Indian country, EPA may find it necessary or appropriate to promulgate area-specific NSR FIPs for Indian country within the four subject nonattainment areas, depending upon the emissions potential of any proposed new or modified stationary sources in these Indian country areas.

        C. Setting Deadlines for Submitting SIP Revisions
        For the reasons discussed below for each area, we are proposing SIP submission deadlines for the areas and SIP revisions shown in Table 3.18

          Table 3—Summary of Sip Revision Submittal Deadlines

            8-Hour ozone nonattainment area
            Proposedclassification

            8-Hour ozone SIP element
            Submittal due date

            Coachella Valley
            Severe-15
            CAA Section 185 fees
            No later than 12 months from the effective date of reclassification.

            Sacramento Metro
            Severe-15
            NSR (Sacramento Metropolitan AQMD, Placer County APCD, Feather River AQMD only)
            No later than 12 months from the effective date of reclassification.

            CAA Section 185 fees (El Dorado County AQMD, Placer County APCD, Feather River AQMD, and Yolo-Solano AQMD only)
            No later than 12 months from the effective date of reclassification.

          San Joaquin Valley. As noted above in section II.D.2 of this document, CARB has submitted SIP revisions addressing all of the additional SIP requirements for San Joaquin Valley consistent with reclassification from “serious” to “extreme.” EPA therefore is not proposing a schedule for additional SIP revisions in response to the reclassification of this area.

            18 The deadlines proposed herein relate solely to specific additional requirements triggered by the reclassification for the 8-hour ozone NAAQS and should not be interpreted as relieving an area of any existing obligation that the area has based on its 1-hour ozone classification, or of existing obligations unrelated to attainment that are based on its current 8-hour ozone classification.

          South Coast Air Basin. As noted above in section II.D.2 of this document, CARB has submitted SIP revisions addressing all of the additional SIP requirements for the South Coast Air Basin consistent with reclassification from “severe-17” to “extreme.” EPA therefore is not proposing a schedule for additional SIP revisions in response to the reclassification of this area.

          Coachella Valley. As noted above in section II.D.2 of this document, CARB has submitted SIP revisions addressing all of the additional SIP requirements for Coachella Valley consistent with reclassification from “serious” to “severe-15,” except for the major stationary source fees requirement under CAA section 185. EPA is proposing to establish a deadline of no later than 12 months from the effective date of reclassification for submittal of a revision to the Coachella Valley portion of the SIP that meets the major stationary source fees requirement under CAA section 185.

          Sacramento Metro. As noted above in section II.D.2 of this document, CARB has submitted SIP revisions addressing all but two of the additional SIP requirements for the Sacramento Metro area consistent with reclassification from “serious” to “severe-15.” CARB has not submitted new source review rules for certain air districts within the Sacramento Metro area consistent with the “severe-15” ozone classification. EPA is proposing to establish a deadline of no later than 12 months from the effective date of reclassification for submittal of revisions to the Sacramento Metro portion of the SIP that meet the additional new source review requirements for a “severe-15” 8-hour ozone nonattainment area for Sacramento Metropolitan AQMD, Placer County APCD, and Feather River AQMD. CARB has also not submitted SIP revisions addressing the CAA section 185 fees requirement for four of the five districts within the Sacramento Metro area, including El Dorado County AQMD, Placer County APCD, Feather River AQMD, and Yolo-Solano AQMD. EPA is proposing the same deadline for the CAA section 185 fees requirement as for the “severe-15” NSR requirement discussed above.
        IV. Proposed Action and Request for Public Comment
        Pursuant to CAA section 181(b)(3) and 40 CFR 51.903(b), EPA proposes to grant the following reclassification requests by the State of California: the San Joaquin Valley area from “serious” to “extreme”; the South Coast Air Basin area from “severe-17” to “extreme”; and the Coachella Valley and Sacramento Metro areas from “serious” to “severe-15,” and to change the table for 8-hour ozone in 40 CFR 81.305 accordingly.
        In connection with the reclassifications, EPA is proposing to establish a deadline of no later than 12 months from the effective date of reclassification for submittal of revisions to the Coachella Valley portion of the SIP to meet the CAA section 185 fees requirement. EPA is also proposing the same deadline for submittal of revisions to the Sacramento Metro area portion of the SIP to meet the following additional SIP requirements for “severe-15” areas: new source review rules consistent with this classification (Sacramento Metropolitan AQMD, Placer County APCD, and Feather River AQMD only) and CAA section 185 fees (El Dorado County AQMD, Placer County APCD, Feather River AQMD, and Yolo-Solano AQMD only). EPA has already received SIP revision submittals addressing most of the additional SIP requirements for these two areas and has received all of the related SIP revision submittals for San Joaquin Valley and the South Coast Air Basin. EPA is not proposing a SIP revision schedule for any SIP requirements for which SIP submittals have already been received.
        Finally, consistent with our discretionary authority under CAA sections 301(a) and 301(d)(4), we propose to similarly reclassify Indian country within the four areas consistent with the reclassification requests for the surrounding non-Indian country lands and have invited consultation with interested tribes concerning this issue. We note that although eligible tribes may seek EPA approval of relevant tribal programs under the CAA, none of the affected tribes will be required to submit an implementation plan to address these reclassifications.
        EPA requests public comment on this proposal.
        V. Statutory and Executive Order Reviews

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to Executive Order 12866. Voluntary reclassifications under section 181(b)(3) of the CAA are based solely upon requests by the State, and EPA is required under the CAA to grant them. These actions do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by reclassification, reclassification does not impose a materially adverse impact under Executive Order 12866. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
        In addition, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and that this proposed rule does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), because EPA is required to grant requests by states for voluntary reclassifications and such reclassifications in and of themselves do not impose any federal intergovernmental mandate.
        Executive Order 13175, (65 FR 67249, November 6, 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” is 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.”
        Several Indian tribes have Indian country located within the boundaries of the four subject ozone nonattainment areas. EPA implements federal Clean Air Act programs, including reclassifications, in these areas of Indian country. EPA has concluded that this proposed rule might have tribal implications for the purposes of Executive Order 13175, but would not impose substantial direct costs upon the tribes, nor would it preempt Tribal law. As discussed in section III.B.3 of this document, the proposed rule would not affect implementation of new source review for new or modified stationary sources proposed in the Indian country areas proposed for reclassification, but might affect projects proposed in these areas that require Federal permits, approvals, or funding. Such projects are subject to the requirements of EPA's General Conformity rule, and Federal permits, approvals, or funding for the projects may be more difficult to attain because of the lower de minimis thresholds triggered by reclassification.
        Given the potential implications, EPA contacted tribal officials early in the process of developing this proposed rule to provide an opportunity to have meaningful and timely input into its development. On July 31, 2008, we sent letters to leaders of the 21 tribes with Indian country areas in the four subject nonattainment areas seeking their input on how we could best communicate with the tribes on the rulemaking effort. We received responses from nine tribes, of whom four indicated interest in face-to-face meetings, as one of several means of communication. We have met with two tribes that sought specific meetings on the reclassifications: Pechanga Band of Luiseño Mission Indians and Morongo Band of Mission Indians. We propose to continue with this process of communicating with the tribes until we promulgate the final rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
        This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, 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 proposed action does not alter the relationship or the distribution of power and responsibilities established in the CAA.
        This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed action is not subject to Executive Order 13045 because it grants a voluntary reclassification, and EPA's approval is mandatory.

        As discussed above, a voluntary reclassification under section 181(b)(3) of the CAA is based solely on the request of a State and EPA is required to grant such a request. In this context, it would be inconsistent with applicable law for EPA, when it grants a State's request for a voluntary reclassification, to use voluntary consensus standards. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) also do not apply. In addition, this proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
        Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. As stated earlier in this proposed rule, EPA is proposing action granting the State's requests for voluntary reclassifications. The plain language of section 181(b)(3) of the CAA mandates that we “shall” approve such a request if it is made in accordance with the requirements of the Act, and, as such, does not provide the Agency with the discretionary authority to address concerns raised outside the Act, including those contained in Executive Order 12898.

          List of Subjects in 40 CFR Part 81
          Environmental protection, Air pollution control, Intergovernmental relations, National parks, Ozone, Wilderness areas.

          Dated: August 18, 2009.
          Laura Yoshii,
          Acting Regional Administrator, Region IX.

      [FR Doc. E9-20732 Filed 8-26-09; 8:45 am]
      BILLING CODE 6560-50-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R06-OAR-2014-0205; FRL-9929-68-Region 6]
        Approval and Promulgation of Implementation Plans; New Mexico; Infrastructure for the 2010 Sulfur Dioxide National Ambient Air Quality Standards

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of New Mexico for the Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS). The submittal addresses how the existing SIP provides for implementation, maintenance, and enforcement of the 2010 SO2 NAAQS (infrastructure SIP or i-SIP). This i-SIP ensures that the State's SIP is adequate to meet the state's responsibilities under the Federal Clean Air Act (CAA).

          DATES:
          Written comments must be received on or before July 29, 2015.

          ADDRESSES:
          Submit your comments, identified by Docket ID Number EPA-R06-OAR-2014-0205, by one of the following methods:
          • www.regulations.gov. Follow the online instructions.
          • Email: Sherry Fuerst at fuerst.sherry@epa.gov.

          • Mail or delivery: Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal holidays. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2014-0205. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. 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 at either location (e.g., CBI).

          FOR FURTHER INFORMATION CONTACT:
          Sherry Fuerst, telephone 214-665-6454, fuerst.sherry@epa.gov. To inspect the hard copy materials, please schedule an appointment with her or Bill Deese at 214-665-7253.

        SUPPLEMENTARY INFORMATION:
        Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
        I. Background
        On June 22, 2010, EPA revised the primary SO2 NAAQS (hereafter the 2010 SO2 NAAQS) to establish a new 1-hour standard, with a level of 75 parts per billion, based on the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations (75 FR 35520). Each state must submit an i-SIP within three years after the promulgation of a new or revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific elements the i-SIP must meet. EPA issued guidance addressing the i-SIP elements for NAAQS.1
           The Secretary of the New Mexico Environmental Department (NMED) submitted an i-SIP revision to address this revised NAAQS.

            1 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

        EPA is proposing to approve the New Mexico i-SIP submittal for the 2010 SO2 NAAQS.2

            2 Additional information on: The history of SO2, its levels, forms and, determination of compliance; EPA's approach for reviewing i-SIPs; the details of the SIP submittal and EPA's evaluation; the effect of recent court decisions on i-SIPs; the statute and regulatory citations in the New Mexico SIP specific to this review; the specific i-SIP applicable CAA and EPA regulatory citations; Federal Register Notice citations for New Mexico SIP approvals; New Mexico's minor New Source Review program and EPA approval activities; and, New Mexico's Prevention of Significant Deterioration (PSD) program can be found in the Technical Support Document (TSD).

        II. EPA's Evaluation of New Mexico's i-SIP Submittal
        Below is a summary of EPA's evaluation of the New Mexico i-SIP for each applicable element of 110(a)(2) A-M.3

           New Mexico provided a demonstration of how the existing New Mexico SIP met all the requirements of the 2010 SO2 NAAQS on February 14, 2014. This SIP submission became complete by operation of law on August 14, 2014. See CAA section 110(k)(1)(B).

            3 A detailed discussion of our evaluation can be found in the TSD for this action. The TSD can be accessed through www.regulations.gov (e-docket EPA-R06-OAR-2014-0205).

          (A) Emission limits and other control measures: The SIP must include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each of the NAAQS.4
           New Mexico's Environmental Improvement Act (EIA) and Air Quality Control Act (AQCA) provide the Secretary, the NMED and the New Mexico Environmental Improvement Board (EIB) with broad legal authority. They can adopt emission standards and compliance schedules applicable to regulated entities; emission standards and limitations and any other measures necessary for attainment and maintenance of national standards; and, enforce applicable laws, regulations, standards and compliance schedules, and seek injunctive relief. This authority has been employed to adopt and submit multiple revisions to the New Mexico State Implementation Plan. The approved SIP for New Mexico is documented at 40 CFR part 52.1620, subpart GG.5

            4 The specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirements of section 172, not the timing requirement of section 110(a)(1). Thus, section 110(a)(2)(A) does not require that states submit regulations or emissions limits specifically for attaining the 2010 SO2 NAAQS. Those SIP provisions are due as part of each state's attainment plan, and will be addressed separately from the requirements of section 110(a)(2)(A). In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

            5 https://www.law.cornell.edu/cfr/text/40/52.1620.

          (B) Ambient air quality monitoring/data system: The SIP must provide for establishment and implementation of ambient air quality monitors, collection and analysis of monitoring data, and providing the data to EPA upon request.

        The AQCA provides the authority allowing EIB and NMED to collect air monitoring data, quality-assure the results, and report the data. New Mexico maintains and operates a SO2 network to measure ambient levels. All monitoring data is measured using EPA approved methods and subject to the EPA quality assurance requirements. NMED submits all required data to EPA, following the EPA rules. The statewide network was approved into the SIP and it undergoes recurrent annual review by EPA.6

           In addition, NMED conducts a recurrent assessment of its monitoring network every five years, which includes an evaluation of the need to conduct ambient monitoring for SO2, as required by EPA rules. The most recent of these 5-year monitoring network assessments was conducted by NMED and approved by EPA.7
           The NMED Web site provides the monitor locations and posts past and current concentrations of criteria pollutants measured in the State's network of monitors.8

            6 A copy of the 2014 Annual Air Monitoring Network Plan and EPA's approval letter are included in the docket for this proposed rulemaking.

            7 A copy of the 2010 5-year ambient monitoring network assessment and EPA's approval letter are included in the docket for this proposed rulemaking.

            8 See http://air.nmenv.state.nm.us.

          (C) Program for enforcement: The SIP must include the following three elements: (1) A program providing for enforcement of the measure in paragraph A above; (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the major source permitting requirements of the CAA (for areas designated as attainment or unclassifiable for the NAAQS in question).9

            9 As discussed in further detail in the TSD.

          (1) Enforcement of SIP Measures. As noted in (A), the state statutes provide authority for the Secretary, EIB and the NMED to enforce the requirements of the AQCA, and any regulations, permits, or final compliance orders. Its statutes also provide the Secretary, the NMED and the EIB with general enforcement powers. Among other things, they can file lawsuits to compel compliance with the statutes and regulations; commence civil actions; issue field citations; conduct investigations of regulated entities; collect criminal and civil penalties; develop and enforce rules and standards related to protection of air quality; issue compliance orders; pursue criminal prosecutions; investigate, enter into remediation agreements; and issue emergency cease and desist orders. The AQAC also provides additional enforcement authorities and funding mechanisms.

          (2) Minor New Source Review (NSR). The SIP is required to include measures to regulate construction and modification of stationary sources to protect the NAAQS. New Mexico's minor NSR permitting requirements are approved as part of the SIP.10

            10 EPA is not proposing to approve or disapprove New Mexico's existing minor NSR program to the extent that it may be inconsistent with EPA's regulations governing this program. EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element C (e.g., 76 FR 41076-41079, July 13, 2011). EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs.

          (3) Prevention of Significant Deterioration (PSD) permit program. New Mexico's PSD portion of the SIP covers all NSR regulated pollutants as well as the requirements for the 2010 SO2 NAAQS and has been approved by EPA.11

            11 As discussed further in the TSD.

          (D) Interstate and international transport: There are four requirements the SIP must include relating to interstate transport. These four requirements are referred to as prongs 1 through 4. Prongs 1 and 2 require adequate provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of any NAAQS in another state. Prong 3 and 4 prohibit interfering with measures required of any other state to prevent significant deterioration of air quality or to protect visibility. In addition, States must comply with requirements to prevent transport of international air pollution.
        New Mexico did not address Prongs 1 and 2 in this submission. EPA intends to develop guidance and additional information for the states to address these requirements. We expect that New Mexico will make a SIP submittal for prongs 1 and 2 at a later time.
        The necessary provisions for prong 3 are contained in the PSD portion of the SIP. The prong 4 requirement was met by our approval of the regional haze and visibility component of the SIP.
        New Mexico's SIP includes provisions that satisfy the CAA interstate pollution abatement requirements prongs 3 and 4. There are no final findings by EPA that New Mexico air emissions affect other countries. Therefore, New Mexico has no international obligations. If EPA makes such a finding, NMED will consult with EPA.

          (E) Adequate authority, resources, implementation, and oversight: The SIP must provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) will have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements relating to state boards; and (3) necessary assurances that the state has responsibility for ensuring adequate implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.
        Both elements A and E address the requirement that there is adequate authority to implement and enforce the SIP and that there are no legal impediments.
        This i-SIP submission for the 2010 SO2 NAAQS describes the SIP regulations governing the various functions of personnel within the EIB and NMED, including the administrative, technical support, planning, enforcement, and permitting functions of the program.
        With respect to funding, the AQCA requires NMED to establish an emissions fee schedule for sources in order to fund the reasonable costs of administering various air pollution control programs and authorizes NMED to collect additional fees necessary to cover reasonable costs associated with processing of air permit applications. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to among other things implement and enforce the SIP.
        As required by the CAA, the EIA and the SIP stipulate that any board or body, which approves permits or enforcement orders, must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders or who appear before the board on issues related to the CAA or AQCA. The members of the board or body, or the head of an agency with similar powers, are required to adequately disclose any potential conflicts of interest.
        With respect to assurances that the State has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, the EIA and the AQCA designate the NMED as the primary air pollution control agency. The statutes allow for local agencies to carry out some or all of the Act's responsibilities.
        There is one local air quality control agency, the Albuquerque/Bernalillo County Air Quality Control Board, which assumes jurisdiction for local administration and enforcement of the AQCA in Bernalillo County. There are Albuquerque/Bernalillo County SIP provisions which are part of the New Mexico SIP.12

            12 Albuquerque/Bernalillo County SIP http://yosemite.epa.gov/r6/Sip0304.nsf/home!OpenView&Start=1&Count=30&Collapse=4.4#4.4 or https://www.law.cornell.edu/cfr/text/40/52.1620.

          (F) Stationary source monitoring system: The SIP requires the establishment of a system to monitor emissions from stationary sources and to submit periodic emission reports. It must require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources, to monitor emissions from sources. The SIP shall also require periodic reports on the nature and amounts of emissions and emissions-related data from sources, and require that the state correlate the source reports with emission limitations or standards established under the CAA. These reports must be made available for public inspection at reasonable times.
        The AQCA authorizes the NMED to require persons engaged in operations which result in air pollution to monitor or test emissions and to file reports containing information relating to the nature and amount of emissions. There also are SIP state regulations pertaining to sampling and testing and requirements for reporting of emissions inventories. In addition, SIP rules establish general requirements for maintaining records and reporting emissions.
        The NMED uses this information, in addition to information obtained from other sources, to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with SIP regulations and additional EPA requirements. The SIP requires this information be made available to the public. Provisions concerning the handling of confidential data and proprietary business information are included in the SIP's regulations. These rules specifically exclude from confidential treatment any records concerning the nature and amount of emissions reported by sources.

          (G) Emergency authority: The SIP must provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment and to include contingency plans to implement such authorities as necessary.
        The AQCA provides NMED with authority to address environmental emergencies, and NMED has contingency plans to implement emergency episode provisions.
        Upon a finding that any owner/operator is unreasonably affecting the public health, safety or welfare, or the health of animal or plant life, or property, AQCA authorizes NMED to, after a reasonable attempt to give notice, declare a state of emergency and issue without hearing an emergency special order directing the owner/operator to cease such pollution immediately.

        The New Mexico “Air Pollution Episode Contingency Plan for New Mexico,” is part of the SIP. However, because of the low levels of SO2 emissions monitored statewide, New Mexico is not required to have contingency plans for this revised NAAQS. However, to provide additional protection, the State has general emergency powers to address any possible dangerous SO2 episode if necessary to protect the environment and public health.

          (H) Future SIP revisions: States must have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.
        The AQCA requires the NMED to revise its SIP, as necessary, to account for revisions of the NAAQS, new NAAQS, to attain and maintain the NAAQS, to abate air pollution, to adopt more effective methods of attaining the NAAQS, and to respond to EPA SIP calls.

          (I) Nonattainment areas: New Mexico presently does not have any non-attainment areas for SO2 and EPA believes that nonattainment area requirements should be treated separately from the i-SIP requirements.13
           If necessary, EPA will take action through a separate rulemaking process on the non-attainment area requirements.

            13 This infrastructure SIP rulemaking will not address the New Mexico program for provisions related to nonattainment areas, since EPA considers evaluation of these provisions to be outside the scope of infrastructure SIP actions.

          (J) Consultation with government officials, public notification, PSD and visibility protection: The SIP must meet the following three requirements: (1) Relating to interagency consultation regarding certain CAA requirements; (2) relating to public notification of NAAQS exceedances and related issues; and, (3) prevention of significant deterioration of air quality and visibility protection.
        (1) Interagency consultation: As required by the AQCA, there must be a public hearing before the adoption of any regulations or emission control requirements and all interested persons are given a reasonable opportunity to submit data, view, or arguments orally or in writing and to examine witnesses testifying at the hearing. In addition, the AQAC provides the NMED the power and duty to “advise, consult, contract with and cooperate with local authorities, other states, the federal government and other interested persons or groups in regard to matters of common interest in the field of air quality control . . .”. Furthermore, New Mexico's PSD SIP rules mandate that the NMED shall provide for public participation and notification regarding permitting applications to any other state or local air pollution control agencies, local government officials of the city or county where the source will be located, tribal authorities, and Federal Land Managers (FLMs) whose lands may be affected by emissions from the source or modification. Additionally, the State's PSD SIP rules require the NMED to consult with FLMs regarding permit applications for sources with the potential to impact Class I Federal Areas. The SIP also includes a commitment to consult continually with the FLMs on the review and implementation of the visibility program, and the State recognizes the expertise of the FLMs in monitoring and new source review applicability analyses for visibility and has agreed to notify the FLMs of any advance notification or early consultation with a major new or modifying source prior to the submission of the permit application. The State's Transportation Conformity SIP rules provide procedures for interagency consultation, resolution of conflicts, and public notification.
        (2) Public Notification: The i-SIP provides the SIP regulatory citations requiring the NMED to regularly notify the public of instances or areas in which any NAAQS are exceeded. Included in the SIP are the rules for NMED to advise the public of the health hazard associated with such exceedances; and enhance public awareness of measures that can prevent such exceedances and of ways in which the public can participate in the regulatory and other efforts to improve air quality. In addition, as discussed for infrastructure element B above, the NMED air monitoring Web site provides live air quality data for each of the monitoring stations in New Mexico.8 The Web site also provides information on the health effects of ozone, particulate matter, and other criteria pollutants.
        (3) PSD and Visibility Protection: The PSD requirements here are the same as those addressed under (C). The New Mexico SIP requirements relating to visibility and regional haze are not affected when EPA establishes or revises a NAAQS. Therefore, EPA believes that there are no new visibility protection requirements due to the revision of the NAAQS, and consequently there are no newly applicable visibility protection obligations pursuant to infrastructure element J after the promulgation of a new or revised NAAQS.

          (K) Air quality and modeling/data: The SIP must provide for performing air quality modeling, as prescribed by EPA, to predict the effects on ambient air quality of any emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

        The NMED has the power and duty, under the AQCA to investigate and develop facts providing for the functions of environmental air quality assessment. Past modeling and emissions reductions measures have been submitted by the State and approved into the SIP. Additionally, New Mexico has the ability to perform modeling for the primary and secondary SO2 standards and other criteria pollutant NAAQS on a case-by-case permit basis consistent with their SIP-approved PSD rules and with EPA guidance.
        The New Mexico AQCA authorizes and requires NMED to cooperate with the federal government and local authorities concerning matters of common interest in the field of air quality control, thereby allowing the agency to make such submissions to the EPA.

          (L) Permitting Fees: The SIP must require each major stationary source to pay permitting fees to the permitting authority, as a condition of any permit required under the CAA, to cover the cost of reviewing and acting upon any application for such a permit, and, if the permit is issued, the costs of implementing and enforcing the terms of the permit. The fee requirement applies until a fee program established by the state pursuant to Title V of the CAA, relating to operating permits, is approved by EPA.
        See element (E) above for the description of the mandatory collection of permitting fees outlined in the SIP.

          (M) Consultation/participation by affected local entities: The SIP must provide for consultation and participation by local political subdivisions affected by the SIP.
        See element J (1) and (2) for a discussion of the SIP's public participation process, the authority to advise and consult, and the PSD SIP's public participation requirements. Additionally, the AQCA also requires initiation of cooperative action between local authorities and the NMED, between one local authority and another, or among any combination of local authorities and the NMED for control of air pollution in areas having related air pollution problems that overlap the boundaries of political subdivisions, and entering into agreements and compacts with adjoining states and Indian tribes, where appropriate. NMED has a long history of successful cooperation with the local air quality authority in Albuquerque/Bernalillo County and tribal governments. The transportation conformity component of New Mexico's SIP requires that interagency consultation and opportunity for public involvement be provided before making transportation conformity determinations and before adopting applicable SIP revisions on transportation-related issues.
        III. Proposed Action

        EPA is proposing to approve the February 14, 2014, infrastructure SIP submission from New Mexico, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2010 SO2 NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements, or portions thereof: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is not proposing action on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions, nor on the visibility protection portion of section 110(a)(2)(J) as EPA believes these need not be addressed in the i-SIP. Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in New Mexico's SIP, EPA believes that New Mexico has the infrastructure in place to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 2010 SO2 NAAQS are implemented in the state.
        IV. Statutory and Executive Order 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 CAA. Accordingly, this action merely proposes to approve 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.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • 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 CAA; 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).
        EPA is not proposing to approve this infrastructure SIP certification to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this proposed approval of an infrastructure SIP certification does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Sulfur dioxide reporting and recordkeeping requirements.

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

          Dated: June 18, 2015.
          Ron Curry,
          Regional Administrator, Region 6.

      [FR Doc. 2015-15911 Filed 6-26-15; 8:45 am]
       BILLING CODE 6560-50-P