July 18, 2000
MEMORANDUM
SUBJECT: Guidance on 8-Hour Ozone Designations
for Indian Tribes
FROM: John S. Seitz, Director
Office of Air Quality Planning and Standards (OAQPS), MD-10
TO: Air Directors, Regions I-X
The attached document, "Guidance on 8-Hour Ozone Designations
for Indian Tribes," supplements the Boundary Guidance on
Air Quality Designations for the 8-Hour Ozone National Ambient Air
Quality Standards and 8-Hour Designation, issued March
28, 2000, by the Environmental Protection Agency (EPA). This document
offers Tribes additional information on recommendations for designating
areas as attainment/unclassifiable or nonattainment for the 8-hour
ozone standard, if they choose to make recommendations to EPA. Its
purpose is: (1) to provide Tribes an explanation of the Clean Air
Act section 107 designation process and how it applies to them;
(2) to describe the factors a Tribe should consider when recommending
a designation for lands or areas within the Tribe's jurisdiction;
and (3) to explain how EPA will consult with Tribes.
The accompanying guidance offers flexibility to each Regional Office
to tailor outreach efforts to the Tribes in your region in a manner
consistent with the relationships you have developed and the structures
of Tribal governments in your Region. The time line for making designation
recommendations and for EPA to promulgate designations is potentially
very short for both States and Tribes. However, due to the time
needed for EPA to communicate this guidance and to provide assistance
to the Tribes, you should allow Tribes until September 30, 2000,
to recommend designations for the 8-hour ozone standard.
I want to underline the importance of giving Tribes the opportunity
to learn about and to give input to this designation process. Regional
Offices should begin now to contact Tribes, send out this guidance,
encourage discussion, and provide assistance for those Tribes interested
in making a designation recommendation by September 30, 2000. Regional
offices should also start to review available data and develop preliminary
designations for lands or areas within their Tribes' jurisdiction.
This document reflects the contributions from six regional offices
who worked with an OAQPS team, and OAQPS appreciates their willingness
to help produce this guidance. Tribal representatives gave input
to this document on June 20. Questions on this guidance may be directed
to Sharon Reinders at 919-541-5284, or Julie McClintock at 919 541-5339.
Please share this Guidance with your States, as well as the Tribes.
cc: Deputy Regional Administrators, Regions I-X
Margo Oge, OTAQ
Guidance on 8-Hour Ozone Designations for
Indian Tribes
The Boundary Guidance on Air Quality Designations for the 8-Hour
Ozone National Ambient Air Quality Standards, issued March 28,
2000 to State and local air pollution control agencies and Tribes
provides the basis for this document. (This is available on EPA
website http://www.epa.gov/airlinks/).
The purpose of this document is threefold: (1) to provide an explanation
of the process for designating areas under §107(d) of the Clean
Air Act (CAA) for the 8-hour ozone standard and how it applies to
Tribes; (2) to describe the factors Tribes should consider when
recommending a designation for lands within their jurisdiction;
and (3) to explain how the Environmental Protection Agency (EPA)
will consult with Tribes.(1) Throughout
this document EPA will refer to Tribal lands or areas as "Indian
country".(2)
The EPA promulgated a revised 8-hour ozone National Ambient Air
Quality Standard (NAAQS) in July 1997. The requirement for EPA to
designate whether an area is attainment/unclassifiable or nonattainment
following promulgation of a NAAQS, and the time line for making
such designations is contained in section 107(d)(1) of the Clean
Air Act (CAA or Act) and §6103 of the Transportation Equity Act
for the 21st Century (TEA-21§6103(a)). Under these statutory provisions,
EPA is required to designate areas for the revised standard by July,
2000. The EPA, with this memorandum, provides guidance for Tribes
describing the criteria for drawing boundaries for nonattainment
areas and setting deadlines for the steps in the designation process.
EPA invites all eligible Tribes to submit designation recommendations,
and in any event, will consider all Tribal designation recommendations,
whether or not a Tribe has been determined to be eligible for this
purpose. Interested Tribes should submit their recommendations for
area designations and boundaries with supporting documentation as
described in the March Boundary Guidance to EPA by September
30, 2000. This timing was selected because EPA recognizes that it
is unreasonable for Tribes to meet the deadlines for the States,
since EPA is only now issuing this guidance and needs to provide
adequate time for consultation between EPA and the Tribes on their
specific recommendations. Even so, a rapid response is needed if
a Tribe wishes to make a recommendation to EPA on a designation
for the 8-hour ozone standard by September 30. However, it should
be noted that Tribes are not required to recommend designations(3).
The EPA intends to review and respond to the Tribal recommendations
by late fall. From October until March 2001, EPA will consult with
affected Tribes if EPA wishes to modify a designation recommendation.
The EPA will not issue final designations prior to late March 2001
because, pursuant to the CAA, it must provide Tribes with 120 days
to consider any modifications that EPA may propose to make to each
Tribe's designation recommendation. The EPA will promulgate the
designation it deems appropriate in cases where Tribes do not make
their own recommendations as it would for States.
The following questions and answers explain the criteria for drawing
boundaries for nonattainment areas and the steps in the designation
process.
1. What is ozone and how is it regulated?
Ground-level ozone, the primary constituent of smog, continues
to be a pervasive pollution problem in areas throughout the United
States. Ozone is not emitted directly into the air but is formed
by the reaction of volatile organic compounds (VOCs) and nitrogen
oxides (NOx) in the presence of heat and sunlight. Ground-level
ozone forms readily in the atmosphere, usually during hot summer
weather. VOCs are emitted from a variety of sources, including motor
vehicles, chemical plants, refineries, factories, manufacturing
consumer and commercial products, and other industrial sources.
Nitrogen oxides are emitted from motor vehicles, power plants, and
other sources of combustion. Ozone and the precursor pollutants
that cause ozone also can be transported into an area from pollution
sources found hundreds of miles from the area.
Increased hospital admissions and emergency room visits for respiratory
causes have been associated with ambient ozone exposures. Repeated
exposures to ozone can make people more susceptible to respiratory
infection, result in lung inflammation, and aggravate pre-existing
respiratory diseases such as asthma. Ozone also affects vegetation
and ecosystems, leading to reductions in agricultural and commercial
forest yields, reduced growth and survivability of tree seedlings,
and increased plant susceptibility to disease, pests, and other
environmental stresses (e.g., harsh weather). In long-lived species,
these effects may become evident only after several years or even
decades, thus having the potential for long-term effects on forest
ecosystems.
Ozone is regulated under the CAA. Under the CAA, EPA is required
to set NAAQS for pollutants considered harmful to public health
and the environment. EPA adopted the 8-hour ozone NAAQS in July,
1997. In May 1999, and as modified in October 1999, the U.S. Court
of Appeals for the D.C. Circuit remanded the 8-hour ozone standard
and determined that the CAA limits the manner in which EPA can implement
it. However, the court affirmed EPA's authority to make designations
for the standard.
2. What are air quality designations?
The EPA is required to designate geographic areas as attainment,
unclassifiable, or nonattainment under section 107 of the CAA after
promulgating a new or revised NAAQS. Section 107(d)(1)(A) of the
CAA states that areas should be designated as follows:
1. Nonattainment if the area does not meet the NAAQS, or
has sources that contribute to ambient air quality in a nearby area
that does not meet the NAAQS,
2. Attainment if the area meets the NAAQS (unless the area
contributes to ambient air quality in a nearby nonattainment area
that does not meet the NAAQS), and
3. Unclassifiable if the area cannot be classified as meeting
or not meeting the NAAQS on the basis of available information.
The designation of an area affects what must be done to implement
the ozone NAAQS. After the effective date of designation, areas
designated as attainment/unclassifiable are required to maintain
and prevent significant deterioration of their good air quality.
Areas designated as nonattainment are required to prepare a plan,
and submit it to EPA for approval to reduce the 8-hour average concentration
of ozone in the area to a level at or below the level of the NAAQS.
Due to the uncertainty created by the litigation regarding how the
8-hour ozone standard may be implemented, EPA will issue guidance
on implementing the 8-hour ozone NAAQS at a future date.
Section 107 of the CAA requires all areas to be designated nonattainment
if they do not meet the standard or contribute to ambient air quality
in a nearby area that does not meet the standard. When an air monitor
shows that air quality in an area is in violation of the ozone NAAQS,
EPA's policy is to designate an area around the monitor that includes
the nearby area sources that may be contributing to the violation
as nonattainment. For ozone, this area may be large. EPA takes this
approach because of the way ozone is formed and transported into
surrounding areas. It takes time and sunlight to make ozone, and
the winds move the air during the time between the emission of precursors
and the subsequent formation of ozone. Our goal is to protect public
health and welfare by defining a nonattainment area that encompasses
the area where air quality is worse than the NAAQS, and the area
where the sources of ozone precursors are located. EPA also believes
that designating large areas facilitates a coordinated response
in developing plans to reduce emissions. Therefore, EPA's Boundary
Guidance document encourages states and Tribes to base attainment
and nonattainment boundaries on Metropolitan Statistical Areas (MSAs)
or Consolidated Metropolitan Statistical Areas (CMSAs)(4).
These are large, county-based areas defined by the Office of Management
and Budget based on information supplied by the U.S. Department
of Commerce, Bureau of the Census. Tribal lands encompassed within
these areas are considered to be part of the C/MSA. In the past,
areas within C/MSAs have generally experienced higher levels of
ozone precursor emissions and ozone concentrations than areas outside
of C/MSAs. Therefore, EPA recommends that the entire area within
the C/MSA, as well as nearby areas contributing to the nonattainment
problem, i.e. the airshed, be designated as nonattainment to best
protect public health and ensure that all the sources of precursor
emissions will be controlled to emission levels that protect the
NAAQS.
The EPA's approach recognizes the pervasiveness of ozone by looking
at cross-boundary and multi-jurisdictional areas to control ozone
precursors. The EPA believes that, in most cases, Indian country
within C/MSAs should have the same designation as the surrounding
area. However, based on the factors outlined in question 4, below
(and in question 5 of the March 28 Boundary Guidance document),
there may be situations where a different designation is appropriate.
3. How does the designation process affect Tribes?
A State recommendation for a designation of an area that surrounds
Indian country does not dictate the designation for Indian country.
However, the conditions that support the State's designation recommendation,
such as air quality data and the location of sources, may indicate
the likelihood that similar conditions exist in Indian country.
Designating an area under the CAA is accomplished by EPA through
a formal rulemaking process. The EPA will follow the process outlined
in Section 107(d) and the March Boundary Guidance. These
are the general steps:
1. EPA will send individualized letters to the Tribes with a request
that any interested Tribe make a designation recommendation for
Indian country areas accompanied by supporting documentation to
the EPA Regional office by September 30, 2000.(5)
Tribes are not required to recommend designations. (Tribes not making
a designation recommendation, please skip to #4).
2. EPA will consult with each Tribe (regardless of whether or not
a Tribe has received an eligibility determination to implement Section
107 of the CAA) throughout the designation process, and EPA will
facilitate discussions among States and Tribes when several jurisdictions
are involved in an area designation. Information about designation
recommendations by States (including lands adjacent to Indian country)
will be made available on an EPA web site, www.epa.gov/ttn/naaqs/ozone/rto/.
3. EPA intends to review and respond to a Tribe's designation recommendations
by late fall, 2000. After consulting with each affected Tribe, EPA
may make modifications it believes are appropriate to the recommendation.
Whenever EPA disagrees with any designation recommendation, EPA
is required under section 107 to notify the Tribe (or State) of
any modifications it intends to make to the recommended designation
at least 120 days prior to promulgating the designation.
4. In cases where Tribes do not make designation recommendations,
then EPA, in consultation with the Tribes, will promulgate the designation
it determines is appropriate. It is agency policy that EPA ".
. . in keeping with the Federal trust responsibility, will assure
that tribal concerns and interests are considered whenever EPA's
actions and/or decisions may affect reservation environments."
(EPA 1984 Indian Policy).
5. EPA will make final decisions on designations. These decisions
will be published in the Federal Register, along with a date by
which these decisions will become effective.(6)
Historically, the effective date is usually 30 to 60 days after
publication, but it may be later. Given this process, designations
would not become effective prior to early 2001 at the earliest,
nor would the requirements that are a consequence of the designation.
4. What factors should a Tribe consider when recommending
a designation?
The EPA has established the following criteria (based on section
107, and described in the March Boundary Guidance) for designating
areas as nonattainment for the 8-hour ozone NAAQS. Areas that meet
these criteria should be designated as nonattainment.
- Any area with an ozone monitor that measures a violation of the
NAAQS
- Any area located within a Metropolitan Statistical Area (MSA)
or Consolidated
Metropolitan Statistical Area (C/MSA) where a violation of the
NAAQS has been measured. However, see the list of 11 mitigating
factors below.
- Any area with sources of ozone precursors that contribute to
ambient air quality in a nearby nonattainment area (an area that
does not meet the NAAQS). However, see the list of 11 mitigating
factors below.
- Any area located within an area previously designated as nonattainment
for the 1-hour ozone NAAQS
Considering the above criteria, the following examples generally
illustrate the designation that may be appropriate for areas in
Indian country that match the situations described:
- Indian country with an air quality monitor showing that the 8-hour
ozone NAAQS is not being met should be designated nonattainment.
- Indian country with an air quality monitor showing that the NAAQS
is being met generally should be designated attainment. However,
it should be designated nonattainment when: (1) a portion of Indian
country is located within a C/MSA with a violating monitor(7),
or (2) existing sources of ozone precursors or expected growth(8)
contribute to air quality in a nearby ozone nonattainment area,
or (3) air quality modeling shows that the NAAQS is being violated
in Indian country.
- Indian country without a monitor, but located within a C/MSA
with a violating monitor, should generally be designated nonattainment
based on presumptions that: (1) 8-hour ozone concentrations within
the MSA violate the NAAQS, and/or (2) existing sources or expected
growth contribute to the bad air quality in the C/MSA.
- Indian country without a monitor, that is located nearby or adjacent
to a C/MSA with a violating monitor, will generally be designated
unclassifiable. However, it should be designated nonattainment when:
(1) existing sources or expected growth contribute to air quality
in the nonattainment area, or (2) air quality modeling shows that
the NAAQS is being violated in Indian country.
In addition to the criteria listed above, EPA will consider the
following 11 factors to determine whether areas located within a
nonattainment C/MSA (including those in Indian country) should be
excluded from the nonattainment designation, and/or whether areas
located nearby or adjacent to a nonattainment C/MSA should be included
in the nonattainment designation. Tribes that wish to justify designations
other than those suggested in the examples above should explain
how each of the following factors affect specific designations in
Indian country and how the resulting recommendation is consistent
with §107(d)(1) of the CAA.
- Emissions and air quality in adjacent areas (including adjacent
C/MSAs)
- Population density and degree of urbanization including commercial
development in Indian country (e.g., shows a significant difference
from surrounding areas)
- Monitoring data representing ozone concentrations in local areas
and larger areas (i.e., urban or regional scale)
- Location of emission sources (emission sources and nearby receptors
should generally be included in the same nonattainment area)
- Traffic and commuting patterns
- Expected growth (including extent, pattern and rate of growth)
- Meteorology (whether/transport patterns)
- Geography/topography (e.g., mountain ranges or other air basin
boundaries)
- Jurisdictional boundaries (e.g., counties, air districts, existing
1-hour nonattainment areas, reservations, etc.)
- Level of control of emission sources
- Regional emission reductions impacts (e.g., NOx SIP call or other
enforceable regional strategies)
5. How does ozone transport apply?
Local ozone concentrations may be affected by long-range transport
of ozone and its precursors, and in addition, by emissions from
sources in nearby areas that contribute to nonattainment. Ozone
is a widespread problem in some areas. Tribes should evaluate the
impact of long-range transport when air quality monitors on lands
that are not adjacent to a C/MSA show that the 8-hour ozone standard
is being violated. The evaluation should include a review of the
amount of VOC and NOx emissions from sources in Indian country,
emissions from sources in up-wind areas, the meteorology of the
area, and the times when peak ozone concentrations occur, among
other things.
Regional strategies are needed to address emissions from sources
that contribute to the long-range transport component of ozone nonattainment.
Tribes are encouraged to participate in regional planning organizations
that will address these long-range transport issues. Emissions for
sources in Indian country in areas that are designated nonattainment
may be addressed in Federal or Tribal implementation plans (FIPs
or TIPs), as discussed below.
6. What are the consequences of a given designation once
effective(9)?
Since Tribes are not required by the CAA or TAR to develop implementation
plans, the explanations that follow should be understood in that
context.
Nonattainment: In a nonattainment area the goal is to implement
a strategy that will meet the standards by reducing specific pollutants
below the levels of the NAAQS. A FIP or TIP should generally contain:
(a) an emissions inventory to identify the sources of air pollution,
their location, and the types of pollutants emitted; (b) enforceable
emission limits that will require application of at least Reasonably
Available Control Measures or Reasonably Available Control Technology
(RACM or RACT); (c) evidence that the emission limits will reduce
emissions enough to prevent NAAQS violations in Indian country and
in other jurisdictions (i.e., an attainment demonstration); and
(d) a new source review preconstruction permit program to ensure
that new and modified sources of pollution do not impede progress
toward cleaner air.
Currently, there are no EPA regulations setting forth general requirements
for a New Source Review (NSR) permitting program applicable to any
new or modified major stationary sources located either on State
lands or in Indian country in areas that would be designated nonattainment
for the 8-hour standard. However, the statutory requirements for
nonattainment NSR in section 173 could be adapted in order to regulate
emissions from new major sources and major modifications to existing
sources. In the future, when EPA establishes Federal nonattainment
NSR regulations, Tribes may choose to adopt EPA's regulations. When
EPA determines that it is necessary or appropriate (e.g., when a
Tribe lacks an approved TIP with a preconstruction permitting program),
EPA may regulate the construction of new or modified major stationary
sources in Indian country by developing a FIP. Tribes should contact
the appropriate EPA Regional office if they are interested in additional
information on the process for regulating emissions from major stationary
sources that plan to construct or make modifications in Indian country,
especially if such construction will occur in an area that becomes
designated as either attainment/unclassifiable or nonattainment
for the 8-hour ozone standard.
Activities in areas that are designated nonattainment for the 8-hour
ozone standard that are conducted or supported by Federal agencies
must "conform" to the purpose of an applicable implementation
plan, as required by section 176(c) of the CAA. The EPA's conformity
rules apply to Federal activities within nonattainment areas and
areas that have moved from nonattainment to maintaining the standards,
i.e., areas that are redesignated as attainment. A Federal agency
must demonstrate, prior to initiating a project, that its action
conforms to all applicable requirements in an implementation plan
and will not cause or contribute to NAAQS violations. Transportation
conformity rules govern Federal/State highway and transit-related
activities, and all other types of Federal activities are governed
by general conformity rules. The transportation conformity rule
requires transportation agencies to estimate the total motor vehicle
emissions that would result from the area's transportation system
if the proposed improvements were built. These emissions must be
within levels that the applicable implementation plan predicts are
consistent with attainment. It should be noted that under the Federal
Lands Highways Program, 23 US.C §§202(d), 204, as amended by the
Transportation Equity Act for the 21st Century (TEA-21)
authorization to promulgate and implement regulations regarding
planning and construction, as well as transit-related improvement
projects on Indian reservation roads are entrusted to the Secretary
of the Interior through the assistance of the Bureau of Indian Affairs.
The general conformity rules provide Federal agencies with the
following options for demonstrating conformity in ozone nonattainment
areas: (1) obtaining emission reductions that offset the emissions
from the new project, (2) showing that the project's emissions are
already included in, or accommodated by, the emissions inventory
for the area, or (3) obtaining an agreement to include the project's
emissions in the applicable implementation plan.
Attainment/unclassifiable: In an attainment or unclassifiable
area the goal is to maintain air quality that is cleaner than the
NAAQS. A Tribal or Federal program in such areas will generally
contain enforceable emission limits for existing emission sources,
a program to limit the impacts of emissions from new and modified
major stationary sources, and provisions to prevent significant
contribution by sources located in Indian country to NAAQS violations
in other jurisdictions.
Major sources, locating in Indian country that is designated attainment/unclassifiable
for any pollutant, such as the 8-hour ozone standard, would be subject
to the Federal program for the Prevention of Significant Deterioration
(PSD) upon the date that designations under the 8-hour standard
become effective.(10)
1. This document contains EPA policy and does
not establish a binding norm nor finally determine the issues addressed.
This guidance is not binding on States, Tribes, the public, or EPA.
When EPA approves a designation, it become binding on Tribes, the
public, and EPA as a matter of law.
2. For definition of "Indian country"
see 18 U.S.C. § 1151.
3. The CAA, §301(d), authorizes EPA to treat
eligible Indian Tribes in the same manner as States. Pursuant to
§301(d)(2), EPA promulgated regulations known as the "Tribal
Authority Rule" (TAR) on February 12, 1998 that specifies those
provisions of the Act for which it is appropriate to treat Tribes
as States, 63 FR 7254, codified at 40 CFR §49(1999). The TAR also
establishes procedures and criteria by which Tribes may receive
from EPA a determination of eligibility which is a requirement for
Tribes to manage CAA and other Federal programs. Under the TAR,
Tribes may choose to develop and implement their own CAA programs,
but are not required to do so. The designations process contained
in §107(d)(1) of the Act is included among those provisions determined
appropriate by EPA for treatment of Tribes in the same manner as
States. Under the TAR, Tribes generally are not subject to the same
submission schedules imposed by the CAA on States.
4. Henceforth in this Guidance, the term C/MSA
will refer to both CMSAs and MSAs.
5. Documentation described in the March Boundary
Guidance, page 7.
6. In the process of determining when to finalize
the proposed designations and make them effective, EPA will carefully
consider the time needed to prepare for any applicable requirements,
as well as the status of ongoing litigation and administrative proceedings.
7. There are often several air quality monitors
within a C/MSA, some measuring ozone concentrations above the standard
and some measuring concentrations below the standard. It is EPA's
policy to use data from the monitor measuring the highest ozone
concentrations as the basis for designating the whole area.
8. This term refers to potential new stationary
and mobile sources of air pollution that, based on factors such
as population trends, and commercial, industrial, transportation,
and economic forecasting, may reasonably be expected to occur in
an area.
9. See draft of "Explanation of Tribal
Authority to Develop a Tribal Implementation Plan" for more
details on developing a Tribal program under the CAA on web site:
http://www.epa.gov/air/tribal/airprogs.html.
10. See Title 40 Code of Federal Regulations
Part 52.21 (40 CFR 52.21).
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