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Nov. 13 --The South Coast Air Quality Management District has challenged an Environmental Protection Agency decision to remove the Morongo Band of Mission Indians tribal lands from within the air district's planning boundaries (S. Coast Air Quality Mgmt. Dist. v. EPA, 9th Cir., No. 13-73936, 11/12/13).
The petition for review was filed Nov. 12 in the U.S. Court of Appeals for the Ninth Circuit, targeting a final rule the EPA issued Sept. 24.
In the rule published Sept. 23, the EPA said the decision corrects an error in a 2003 rulemaking that designated, at the state's request, the Indian lands as part of the air district's planning area for the one-hour and 1997 eight-hour ozone standards (78 Fed. Reg. 58,189).
Only the federal government or the tribe has the authority to ask that the reservation become part of the South Coast air basin, the EPA said.
The Morongo tribe petitioned the EPA for the change in 2009, according to EPA's final rule.
By redrawing the SCAQMD's boundaries, the Morongo reservation ozone nonattainment status is reclassified from extreme to severe-17, a move that comes with less-restrictive air quality standards.
In its Jan. 25 written comments to EPA, the SCAQMD said creating a separate planning area for the reservation could “unfairly provide advantages to sources located on or seeking to locate on Morongo land as compared to sources in the adjacent’’ South Coast basin.
SCAQMD counsel Barbara Baird told Bloomberg BNA Nov. 13 that EPA failed to look at the final rules' potential impact on downwind sources that are subject to stricter air quality standards.
Major stationary sources in extreme nonattainment areas are those that emit 10 tons or more a year of volatile organic compounds or nitrogen oxides, Baird said. In severe-17 nonattainment areas, that threshold increases to 25 tons a year, she said.
Baird said she was unaware of any specific plans to build any new facilities on the reservation.
Any future new sources of air pollution on the reservation could adversely affect efforts to bring the South Coast air basin into attainment with federal clean air standards, according to the SCAQMD.
The SCAQMD's opening brief is due in the Ninth Circuit by Jan. 31. The EPA's response is due March 31.
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