Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington, 18074-18134 [05-6367]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 67 (Friday, April 8, 2005)]
[Rules and Regulations]
[Pages 18074-18134]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6367]



[[Page 18073]]

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Part II





Environmental Protection Agency





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40 CFR Parts 9 and 49



Federal Implementation Plans Under the Clean Air Act for Indian 
Reservations in Idaho, Oregon and Washington; Final Rule

Federal Register / Vol. 70, No. 67 / Friday, April 8, 2005 / Rules 
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 49

[Docket No: OAR-2004-0067; FRL-7893-8]
RIN 2012-AA01


Federal Implementation Plans Under the Clean Air Act for Indian 
Reservations in Idaho, Oregon and Washington

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on these Federal Implementation Plans (FIPs) under the Clean Air 
Act (CAA) for Indian reservations in Idaho, Oregon, and Washington. The 
FIPs put in place basic air quality regulations to protect health and 
welfare on Indian reservations located in the Pacific Northwest.

DATES: This regulation is effective June 7, 2005. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of June 7, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2004-0067. All documents in the docket are listed in the 
EDOCKET index at https://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the EPA Air and Radiation Docket and 
Information Center, located at 1301 Constitution Avenue, NW., Room 
B102, Mail Code 6102T, Washington, D.C. 20004 (mailing address is 1200 
Pennsylvania Avenue, NW., Mail Code 6102T, Washington, D.C. 20460). The 
EPA Air and Radiation Docket and Information Center is open from 8:30 
a.m. to 4:30 p.m. Eastern Time, Monday through Friday, excluding legal 
holidays. The phone number for the Docket's Public Reading Room is 
(202) 566-1744. The docket is also available for public inspection and 
copying at the EPA Region 10 office, Office of Air, Waste, and Toxics, 
10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101, between 8:30 
a.m. and 3:30 p.m. Pacific Time, Monday through Friday, excluding legal 
holidays. EPA Region 10 requests that, if at all possible, you contact 
the person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. A reasonable fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT: David Bray, Office of Air, Waste and 
Toxics (AWT-107), U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA 
98101-1128, (206) 553-4253, or e-mail address: bray.dave@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background of the Final Rules
II. Major Issues Raised by Commenters
    A. EPA's Authority under the CAA
    B. Open Burning Rule
    C. Economic Impacts
    D. Delegation of Authority to Tribes
    E. Public Participation in the Rulemaking
    F. Implementation of the Rules
    G. Applicability of the Rules to Specific Source Categories
III. Summary of the Final Rules and Significant Changes from the 
March 2002 Proposal
IV. Statutory and Executive Order Reviews

I. Background of the Final Rules

    On March 15, 2002, the Environmental Protection Agency (EPA, 
Agency, or we) proposed to establish Federal Implementation Plans 
(FIPs) under the Clean Air Act (CAA or Act) (42 U.S.C. 7401 to 7671q) 
for 39 Indian reservations in Idaho, Oregon, and Washington. 67 FR 
11748-11801, March 15, 2002 and 67 FR 51802-51803, August 9, 2002. EPA 
stated that the proposed rules would be an important step in ensuring 
that basic air quality protection is in place to protect health and 
welfare on Indian reservations located in the Pacific Northwest. The 
proposal was widely publicized, and residents of the reservations, as 
well as affected Tribes, local governments, and States commented on the 
proposed rules. During the comment period that ended on October 10, 
2002, EPA also held a public hearing in Toppenish, Washington on 
September 10, 2002. We received 155 written comments during the comment 
period and 28 people provided oral testimony at the public hearing. 
Today's Federal Register action announces EPA's final action on all of 
the proposed regulations, except for Sec.  49.136 Rule for emissions 
detrimental to persons, property, cultural or traditional resources. We 
have not made a final determination on the proposed Sec.  49.136.
    In promulgating today's rules, EPA is exercising its discretionary 
authority under sections 301(a) and 301(d)(4) of the CAA to promulgate 
such implementation plan provisions as are necessary or appropriate to 
protect air quality within the Indian reservations that are 
specifically identified in 40 CFR part 49, subpart M Implementation 
Plans for Tribes--Region X.
    After evaluating air quality issues for the Indian reservations in 
Idaho, Oregon, and Washington, EPA continues to be concerned that there 
is a gap in air quality requirements in these areas under the CAA. Many 
Tribes in the Region are in the process of developing air quality 
management programs under the CAA; however, as of December 2004, no 
Tribe in Region 10 has submitted Tribal regulations for EPA approval as 
a Tribal Implementation Plan (TIP). Furthermore, States generally lack 
the authority to regulate air quality in Indian country. EPA is 
promulgating these rules today because we have concluded that they are 
appropriate for protecting air quality on Indian reservations in the 
Pacific Northwest. The rules will apply to any person who owns or 
operates an air pollution source within the exterior boundaries of an 
Indian reservation in Idaho, Oregon, or Washington, as set forth in 40 
CFR part 49, subpart M.
    The gap-filling rules EPA proposed in March 2002 were generally 
based upon the aspects of neighboring State and local rules most 
relevant to the air polluting activities on reservations in the Pacific 
Northwest, and follow a level of control of a typical air quality 
control program. EPA does not intend, nor does it expect, these gap-
filling regulations to impose significantly different regulatory 
burdens upon industry or residents within reservations than those 
imposed by the rules of State and local air agencies in the surrounding 
areas. As a general matter, these regulations are not as restrictive as 
the most stringent State and local rules for the same class of sources 
or activities; likewise, they are not as lenient as the least stringent 
of the State and local rules. Included in the docket for the proposed 
rulemaking were copies of all the State and local rules that EPA 
considered in this process, as well as a technical support document 
with summary tables showing the State and local agency levels of 
control as compared with the proposed regulations and a description of 
why EPA believed the proposed rules were appropriate.
    During the comment period, a number of Tribal governments, the 
States of Idaho, Oregon, and Washington, and many local air agencies in 
Washington submitted comments supporting the rules proposed by EPA and 
offered suggestions for improving the proposed rules. These commenters 
urged EPA to finalize the rules. Several Tribes also

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urged EPA to continue assisting Tribes to build and implement their air 
quality management programs that will operate in coordination with 
EPA's rules.
    A number of comments were submitted that objected to the proposal 
generally or to particular provisions, EPA's reasons for proposing the 
rules, or how the proposal was developed. As discussed in detail below, 
many commenters objected to the rules because they misunderstood the 
proposal as authorizing Tribal governments to regulate the activities 
of nonmembers of the Tribe on privately deeded land within the 
reservation. Many of those commenters also disagreed with EPA that 
there is a regulatory gap under the CAA on Indian reservations. The 
commenters asserted that nonmember reservation residents and their 
private property within a reservation are under State jurisdiction, and 
that the proposed rules usurp the rights of State and local air 
authorities to manage, control, and enforce air quality requirements on 
non-trust parcels within the exterior boundaries of the reservation. 
Several comments criticized EPA for failing to follow its own public 
participation requirements for early involvement prior to publishing 
the proposed rules. In addition, EPA was criticized for consulting with 
Tribal governments for a number of years during the development of the 
proposed rules, but not providing adequate time for local governments 
to participate.
    The proposal to regulate open burning drew many comments. While the 
commenters generally supported EPA's proposal to regulate open burning, 
there was a great deal of concern about the proposal to allow the 
burning of combustible household wastes in burn barrels. A number of 
commenters also misunderstood the proposal as banning agricultural 
field burning and wrote about the economic importance of field burning 
to the agricultural community.
    Commenters also wrote that EPA should ensure it has adequate 
resources, both personnel and financial, to support implementation of 
the rules. Several Tribes urged EPA to provide sufficient resources for 
implementation, such as for responding to complaints and taking 
enforcement actions where there are violations of the rules. As 
mentioned above, Tribes also want EPA to continue to support capacity 
building by Tribes for Tribal air programs and to provide adequate 
resources so the Tribes can assist EPA in administering the rules.
    After evaluating all the comments that were received, EPA is moving 
forward with final rules for the 39 reservations. In these final rules, 
also referred to as the Federal Air Rules for Indian Reservations in 
Idaho, Oregon, and Washington (FARR), we are making certain 
modifications that reflect what EPA has learned from the extensive 
information provided by commenters and from consultation with the 
affected Tribal governments. This preamble to the final rules responds 
to the major issues raised by commenters and describes the final rules 
and significant changes from the proposal. All other comments are 
addressed in a document entitled ``Response to Comments'' that can be 
found in the docket for this rulemaking cited above.

II. Major Issues Raised by Commenters

A. EPA's Authority Under the CAA

    Several commenters wrote that the new Federal rules would duplicate 
State and local government rules, and therefore subject sources to 
another set of regulations for the same activity. Some commenters wrote 
that EPA has erroneously determined that the State of Washington does 
not have authority to administer environmental laws for non-trust lands 
in the State under an approved program. Other commenters wrote that EPA 
has not properly determined that the State does not have such 
jurisdiction as required, in their view, by State of Michigan v. EPA, 
268 F.3d 1075 (D.C. Cir. 2001). A State environmental agency disagreed 
with EPA's position that States generally lack the authority to 
regulate air quality in Indian country, and cited section 116 of the 
CAA as specifically preserving State law from preemption with respect 
to air emission standards. Commenters expressed a variety of other 
views as to why they believe States, not the Federal government, have 
jurisdiction for air quality programs in Indian country. One commenter 
wrote that Congress has given too much power to EPA, and that EPA has 
exceeded its delegation of responsibility. One citizen stated that the 
regulatory gap referred to in the proposed rules is a jurisdictional 
gap created by EPA, and that EPA has redefined a reservation to include 
all properties, regardless of their ownership. The commenter stated 
that such a gap does not exist, and that nonmember residents and their 
private property within a reservation are regulated by applicable State 
and county authorities in charge of air quality. Some commenters also 
expressed concern that EPA would extend the Federal regulatory program 
to include areas in an airshed that lie outside of the reservation 
boundaries. One commenter also asked EPA to describe how it will 
determine the reservation status of a source and whether there is a 
question of the Indian country status of the source.
    Several commenters wrote that EPA has exceeded its authority by 
establishing emission limitations that are not required in order to 
meet National Ambient Air Quality Standards (NAAQS). These commenters 
asserted that the CAA authorizes EPA regulations only if needed to meet 
or attain the NAAQS, and then only at levels justified to achieve 
health-based measures. These commenters assert that the CAA does not 
provide authority to regulate sources in an attainment area. An 
industry commenter also stated that the rules to protect air quality 
from the potential for significant deterioration caused by particulate 
matter (such as Sec. Sec.  49.124, 49.125, 49.126, and 49.128) and 
rules for protecting air quality from the potential for significant 
deterioration caused by sulfur dioxide release (Sec. Sec.  49.129 and 
49.130) appear to conflict with the CAA's regulatory scheme for 
stationary sources because EPA has not clearly characterized the state 
of air quality, as measured by the NAAQS, in the areas subject to the 
rules. This commenter and a number of others also questioned how EPA 
determined the stringency of the proposed emission limitations, with 
some commenters stating that the requirements should be more stringent, 
other commenters stating that the requirements should be less 
stringent, and some noting that the levels appear to be arbitrary.
    A local government agency commented that instead of adopting 
Federal requirements, EPA should use the process of approving Tribes 
for ``treatment in the same manner as a State'' (commonly referred to 
as ``TAS''), set forth in the CAA. One commenter stated that EPA should 
ensure that the proposed rules do not circumvent the TAS process as the 
method for approving Tribes to administer programs under the CAA.
    Other commenters criticized EPA for not establishing milestones to 
implement CAA provisions as soon as practicable, since States and 
delegated local air agencies must do so. These commenters also 
criticized EPA for not establishing schedules for implementation, as 
States are required to do under the CAA.
    EPA Response. In the final rule entitled ``Indian Tribes: Air 
Quality Planning and Management,'' generally referred to as the 
``Tribal Authority Rule'' or ``TAR,'' EPA explains that it intends to 
use its authority under the CAA ``to protect air quality throughout

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Indian country\1\'' by directly implementing the CAA's requirements 
where Tribes have chosen not to develop or are not implementing a CAA 
program. 63 FR 7254, February 12, 1998. The final TAR at 40 CFR 49.11 
states that EPA would ``promulgate without unreasonable delay such 
Federal implementation plan provisions as are necessary or appropriate 
to protect air quality'' for these areas. EPA is exercising its 
authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 
49.11(a) to promulgate FIPs in order to remedy an existing regulatory 
gap under the CAA with respect to Indian reservations located in Idaho, 
Oregon, and Washington. Although many facilities in these areas may 
have historically followed State and local government air quality 
programs, with only one exception, EPA has never approved those 
governments to exercise regulatory authority under the CAA on any 
Indian reservations.\2\ Since the CAA was amended in 1990, EPA has been 
clear in its approvals of State programs that the approved State 
program does not extend into Indian country. It is EPA's position that, 
absent an explicit finding of jurisdiction and approval in Indian 
country, State and local governments lack authority under the CAA over 
air pollution sources, and the owners or operators of air pollution 
sources, throughout Indian country. Given the longstanding air quality 
concerns in some areas and the need to establish requirements in all 
areas to maintain CAA standards, EPA believes that these FIP provisions 
are appropriate to protect air quality on the identified reservations. 
The rules published today are based on the same CAA authority as EPA 
has used elsewhere in rulemaking that has been affirmed by the courts. 
As described below in II.D, EPA's interpretation of its authority has 
been affirmed by the U.S. Court of Appeals for the District of Columbia 
Circuit in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 
2000), cert. denied 121 S. Ct. 1600 (2001). In addition, EPA's 
authority to issue operating permits to major stationary sources 
located in Indian country under Title V of the Act, pursuant to 
regulations at 40 CFR part 71, was affirmed in State of Michigan v. 
EPA, 268 F.3d 1075 (D.C. Cir. 2001). EPA has used this same authority 
to issue a number of FIPs to address air pollution concerns at specific 
facilities located in Indian country. See Federal Implementation Plan 
for Tri-Cities landfill, Salt River Pima-Maricopa Indian Community, 40 
CFR 49.22 (64 FR 65663, November 23, 1999) and Federal Implementation 
Plan for the Astaris-Idaho LLC Facility (formerly owned by FMC 
Corporation) in the Fort Hall PM10 Nonattainment Area, 40 CFR 49.10711 
(65 FR 51412, August 23, 2000).
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    \1\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
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, (2) 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 (3) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats 
as reservations trust lands validly set aside for the use of a Tribe 
even if the trust lands have not been formally designated as a 
reservation.
    \2\ For purposes of approving the Washington Department of 
Ecology (WDOE) operating permits program under 40 CFR part 70, EPA 
explicitly found that WDOE demonstrated that the Washington Indian 
(Puyallup) Land Claims Settlement Act, 25 U.S.C. 1773, gives 
explicit authority to State and local governments to administer 
their environmental laws on all non-trust lands within the 1873 
Survey Area of the Puyallup Reservation in Tacoma, Washington.
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    Effects of State Law. The rules established by EPA here are in 
effect under the CAA. EPA recognizes that in a few cases, other 
governmental entities may have established air quality or fire safety 
requirements that the commenters believe apply to them for the same 
activity. However, unless those rules or requirements have been 
approved by EPA under the CAA to apply on Indian reservations, 
compliance with those other requirements does not relieve a source from 
complying with the applicable FARR. As EPA has stated elsewhere, States 
generally lack the authority to regulate air quality in Indian country. 
See Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 
520, 527 fn.1 (1998) (``Generally speaking, primary jurisdiction over 
land that is Indian country rests with the Federal Government and the 
Indian Tribe inhabiting it, and not with the States.''), California v. 
Cabazon Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987); see 
also HRI v. EPA, 198 F.3d 1224, 1242 (10th Cir. 2000); see also 
discussion in EPA's final rule for the Federal operating permits 
program, 64 FR 8251-8255, February 19, 1999. Furthermore, EPA 
interprets the CAA as establishing unitary management of reservation 
air resources and as a delegation of Federal authority to eligible 
Tribes to implement the CAA over all sources within reservations, 
including non-Indian sources on fee lands. Accordingly, even if a State 
could demonstrate authority over non-Indian sources on fee lands, EPA 
believes that the CAA generally provides the Agency the discretion to 
Federally implement the CAA over all reservation sources in order to 
ensure an efficient and effective transition to Tribal CAA programs and 
to avoid the administratively undesirable checkerboarding of 
reservation air quality management based on land ownership. EPA 
believes that Congress intended that EPA take a territorial view of 
implementing air programs within reservations. EPA believes that air 
quality planning for a checkerboarded area would be more difficult and 
that it would be inefficient if a State were to exercise regulation 
over piecemeal tracts of land within a reservation, possibly with 
similar reservation sources being subject to different substantive 
requirements. EPA's approach provides for coherent and consistent 
environmental regulation within reservations.
    Although EPA does not recognize State or local air regulations as 
being effective within Indian country for purposes of the CAA, absent 
an express approval by EPA of those regulations for an area of Indian 
country, today's rulemaking does not address the validity of State and 
local law and regulations with respect to sources in Indian country, or 
the authority of State and local agencies to regulate such sources, for 
purposes other than the Federal CAA. We are specifically not making a 
determination that these Federal CAA rules override or preempt any 
other laws that have been established. For example, in the area of open 
burning, EPA recognizes that some Federal, State, local, and Tribal 
agencies may have established requirements covering topics such as 
solid waste management and fire safety in addition to air quality 
management. The general open burning rule at Sec.  49.131 specifically 
provides that nothing in the rule exempts or excuses any person from 
complying with the applicable laws and ordinances of other governmental 
jurisdictions.
    Application of the FARR to Sources within the Exterior Boundaries 
of Reservations. Since these rules will apply only to sources located 
within the boundaries of the specified Indian reservations, EPA 
believes it will be relatively easy for a source or activity located on 
an Indian reservation to determine whether it is subject to the 
provisions of the rules that are included in the implementation plan 
for that reservation in 40 CFR part 49, subpart M. The rules adopted 
here do not apply directly to sources located outside these 
reservations. A source that is uncertain regarding the applicability of 
a rule may submit a written request to EPA for an applicability 
determination. In

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response, EPA will issue a written determination stating whether the 
source or activity is subject to a particular Federal air quality rule. 
In most cases, determining whether the source or activity is on an 
Indian reservation will be straightforward and non-controversial. For 
example, in most cases EPA and the source will be able to easily 
determine whether a source is located within the exterior boundaries of 
a reservation, including Tribal trust lands. If a source is located on 
land within the exterior boundaries of an Indian reservation recognized 
by the Department of the Interior, that source will be subject to the 
FIP established for that reservation notwithstanding the ownership 
status of the land.\3\ EPA will not consider the status of an area to 
be in question if it is clearly within the boundaries of an Indian 
reservation.\4\ In the rarer, more complex factual cases, EPA will, as 
appropriate, work with the U.S. Department of the Interior, Tribes, and 
stakeholders to assess the reservation status of the location. After 
EPA has reviewed the relevant materials, the Agency will send a letter 
to the source stating EPA's determination of whether the source is 
located within the boundaries of a reservation. Such sources or 
activities located on Indian reservations will be expected to comply 
with the applicable requirements of these FIPs.
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    \3\ Section 301(d)(2)(B) of the Act, 42 U.S.C. 7601(d)(2)(B), 
refers to management and protection of resources within the exterior 
boundaries of the reservation; section 110(o) of the Act, 42 U.S.C. 
7410(o), states: ``When such [implementation] plan becomes effective 
in accordance with the regulations promulgated under section 7601(d) 
of this title, the plan shall become applicable to all areas (except 
as expressly provided otherwise in the plan) located within the 
exterior boundaries of the reservation, notwithstanding the issuance 
of any patent and including rights-of-way running through the 
reservation.''
    \4\ Since the rules promulgated today pursuant to Subchapter III 
of the Act apply only to sources within the boundaries of the 
specified Indian reservations, which are clearly Indian country 
under 18 U.S.C. 1151 and the CAA, these rules are consistent with 
the decision in State of Michigan v. EPA, 268 F.3d 1075 (D.C. 
Cir.2001).
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    EPA's Approach. EPA's intention is to promulgate Federal 
regulations that are an important initial step to fill the regulatory 
gap on Indian reservations in Idaho, Oregon, and Washington. However, 
EPA does not intend, nor does it expect, these gap-filling regulations 
to impose significantly different regulatory burdens upon industry or 
residents within reservations than those imposed by the rules of State 
and local air agencies in the surrounding areas. This approach is 
intended to formally ``level the playing field.'' In other words, the 
intent of these rules is to provide people living within reservation 
boundaries with air quality protection similar to surrounding areas, 
and to require that emissions from sources located within reservations 
are controlled to levels similar to those of sources located outside 
the reservations. EPA believes that in light of the particular air 
quality problems generally present on reservations in the Pacific 
Northwest and based on our expertise in this area, it is appropriate to 
establish each of the air quality rules for each reservation that are 
promulgated today.
    These gap-filling rules are generally based upon the aspects of 
State and local rules most relevant to the air-polluting activities on 
reservations in the Pacific Northwest, and reflect a level of control 
of a typical air quality control program. As a general matter, these 
regulations are not as restrictive as the most stringent State and 
local rules for the same class of sources or activities; likewise, they 
are not as lenient as the least stringent of the State and local rules. 
EPA has used its best professional judgment to determine limits that 
provide protection where none existed yet are similar enough to 
adjacent rules so as to not create hardships for industry, Tribes, or 
the general public. In some areas a particular rule is more or less 
stringent than a rule in areas directly adjacent to the reservation, 
but on the whole, we believe these rules are roughly equivalent to the 
rules in surrounding jurisdictions.
    EPA's final rules published here address clearly identified air 
pollution concerns of the Pacific Northwest Indian reservations based 
on information gathered in a number of ways, including review of State 
and local air agency implementation plans, as discussed in the 
proposal. EPA believes that it is appropriate to focus initially on the 
sources in Region 10 that have been identified as ones that may cause 
or contribute to prevalent air quality problems on reservations and in 
shared airsheds of the Pacific Northwest. Aside from existing national 
emissions standards and Federal requirements described elsewhere, these 
FIPs are the first building blocks under the CAA to address such 
emissions.
    EPA Authority for these FIPs. As described below, EPA disagrees 
that its authority under the CAA is limited to regulate sources only as 
proven necessary to attain or maintain the NAAQS and also disagrees 
with the commenters' position that the Prevention of Significant 
Deterioration (PSD) authority of section 165 of the Act only applies to 
new major sources. EPA believes it has ample authority under the CAA to 
regulate air pollutants that may pose a threat to human health and the 
environment.
    While the authority for EPA to establish these Federal rules for 
Indian reservations comes primarily from section 301(d) of the CAA, the 
Agency will look to all of its CAA authorities when establishing 
requirements that apply to both criteria and non-criteria pollutants. 
The primary guide for evaluating the scope of implementation plans is 
found in section 110 of the CAA. Section 110(a)(1) of the CAA is the 
basis for authority to establish implementation plan requirements that 
provide for the maintenance of a primary or secondary NAAQS; however, 
the CAA also provides authority to establish requirements for 
pollutants where a NAAQS has not been established. For example, the 
emergency power authority required by section 110(a)(2)(G) provides 
authority to establish requirements for pollutants where a pollution 
source or combination of sources is presenting an imminent and 
substantial endangerment to public health or welfare or the 
environment, without regard to whether a pollutant is regulated by a 
NAAQS. Under the authority of section 110 and part C of the CAA, EPA is 
authorized to establish requirements for regulated air pollutants for 
which EPA has not promulgated standards under section 109. There are 
also several other applicable authorities in part C of the CAA, which 
addresses PSD. Section 160(1) of the CAA authorizes EPA ``to protect 
public health and welfare from any actual or potential adverse effect 
which in the Administrator's judgment may be reasonably anticipate[d] 
to occur from air pollution or from exposures to pollutants in other 
media * * * notwithstanding attainment and maintenance of all national 
ambient air quality standards.'' Section 161 of the CAA states that 
each applicable implementation plan will contain ``emission limitations 
and such other measures as may be necessary * * * to prevent 
significant deterioration of air quality'' in attainment or 
unclassifiable areas. Section 110(a)(2)(D) states that each 
implementation plan should contain provisions prohibiting ``any source 
or other type of emissions activity within the State from emitting any 
air pollutant in amounts'' which will interfere with measures required 
under a part C implementation plan ``to prevent significant 
deterioration of air quality or protect visibility.'' These provisions 
of the CAA authorize EPA to establish permit conditions and other 
requirements to regulate activities that emit pollutants, even where 
pollutant

[[Page 18078]]

levels in the ambient air are below the NAAQS for criteria pollutants 
in attainment or unclassifiable areas. The FIPs issued by EPA also can 
rely on other authorities in the CAA to regulate and obtain information 
about sources of pollutants other than NAAQS pollutants, such as our 
authority to require reporting and recordkeeping under section 114 of 
the CAA. EPA believes its authority to promulgate these rules under the 
CAA is clear and consistent with its previous rules promulgated 
pursuant to section 301(d) that were upheld by applicable courts of the 
United States.
    The rules established here neither affect a Tribe's eligibility for 
TAS nor change EPA's rules establishing the TAS process. EPA is 
promulgating these gap-filling rules for Indian reservations in Idaho, 
Oregon, and Washington after consulting with the affected Tribes about 
air quality issues they face. These rules, as described elsewhere, are 
intended to fill the gap in current regulations until such time as 
individual Tribes develop and implement approved TIPs.
    Implementation Schedule. With regard to the comment on 
implementation schedules, EPA thoroughly discussed in the final TAR 
rulemaking (63 FR 7265) how it is meeting the deadlines established in 
section 110 of the CAA. EPA has interpreted the CAA as offering 
flexibility to Tribes regarding the time needed to establish a CAA 
program, and the CAA does not compel Tribes to establish a CAA program. 
Therefore, EPA determined that it would be infeasible and inappropriate 
to subject Tribes to the mandatory submittal deadlines imposed by the 
Act on States. However, the TAR includes a specific obligation at Sec.  
49.11 to establish a FIP to protect air quality within a reasonable 
time as necessary or appropriate if Tribal efforts do not result in 
adoption and approval of Tribal plans or programs. Thus, EPA will 
continue to be subject to the basic requirement to issue any necessary 
or appropriate FIP for affected Tribal areas within a reasonable time.
    Section 116 of the Act. EPA believes that Federal implementation of 
the Act does not conflict with CAA section 116. Section 116 does not 
extend State jurisdiction into Indian country. Instead, section 116 
provides that the CAA does not preclude or deny the right of any State 
to adopt or enforce any standard or limitation respecting emissions of 
air pollutants or any requirement respecting control or abatement of 
air pollution. As EPA wrote in the final rule establishing the Federal 
Operating Permits Rule at 40 CFR part 71 (64 FR 8247, 8252, February 
19, 1999), section 116 reserves to the States the right to set State 
emission standards and limitations that are more stringent than and/or 
in addition to Federal requirements. Section 116 does not preclude EPA 
from implementing CAA programs. For purposes of this rulemaking, EPA 
does not believe it is necessary to resolve whether States are 
precluded from regulating air resources in Indian country solely under 
color of State law or whether the reservation of rights embodied in 
section 116 extends to any area of Indian country.

B. Open Burning Rule

    The proposal to regulate open burning drew many comments. The most 
significant topic of concern was the proposed provision that would 
allow the burning of household wastes in burn barrels. Commenters were 
concerned about the health and fire safety risks posed by unregulated 
open burning of waste materials, especially for susceptible populations 
such as people with asthma, children, and the elderly. A wide variety 
of commenters questioned the exemption for burning household wastes in 
burn barrels, since such use is already prohibited by many State and 
local air quality, waste disposal, or fire safety rules or 
requirements.
    EPA Response: EPA received many comments with compelling 
information about the threats to human health that can result from open 
burning, especially from burning garbage in burn barrels. In addition 
to the numerous comments that objected to allowing the burning of 
household wastes in burn barrels, EPA has learned of many efforts to 
stop backyard burning, especially in residential areas. EPA's Office of 
Solid Waste is implementing a national program to encourage the use of 
alternatives to open burning, and the State of Washington is attempting 
to eliminate all outdoor burning.
    Based on these comments and other information, EPA is revising the 
final open burning rule to eliminate the exemption for burning 
combustible household wastes in burn barrels at single-family 
residences or residential buildings of four or fewer dwelling units. 
EPA recognizes that the use of burning to dispose of household wastes 
is disfavored by a wide variety of government agencies, and many 
residents of reservations spoke out against this practice.
    The proposed exemption allowed the burning of combustible household 
wastes, including garbage, plastic containers, paper, paper products, 
cardboard, and other materials resulting from general residential 
activities. The only element of the proposed exemption that EPA is 
retaining in the final rule is to allow for open burning on-site of 
paper, paper products, and cardboard that are generated by single-
family residences or residential buildings with four or fewer dwelling 
units. EPA proposed to allow the burning of household wastes in burn 
barrels based on our understanding that solid waste handling 
alternatives were not readily available to all persons living on 
reservations. A reservation solid waste survey conducted in 1997 
(Reservation Solid Waste Survey, The Northwest Renewable Resource 
Center, ed. John M. Kliem) indicated that two-thirds of Tribal 
governments in Idaho, Oregon, and Washington do not have solid waste 
management programs and many reservations do not have garbage pickup 
service. Further, several Tribes confirmed during consultation that 
alternatives to residential burning were not readily available to all 
persons on their reservations. However EPA heard from other commenters 
that many reservations have access to garbage collection services. We 
have insufficient information to conclude that solid waste handling 
alternatives are readily available on all reservations. Therefore, 
while we are eliminating the exemption for burning combustible 
household wastes in burn barrels due to the health effects and other 
environmental and safety concerns, EPA believes, on balance, that it is 
not appropriate to completely prohibit the outdoor burning of paper, 
paper products, and cardboard at this time.
    Under today's final rule outdoor burning cannot be used to dispose 
of garbage, plastics, or plastic products, including plastic containers 
and styrofoam. It should be noted that the removal of the proposed 
exemption for burning household wastes in burn barrels does not mean 
that all burning in burn barrels is prohibited by this rule. Under this 
rule, burn barrels may be used to dispose of materials that are allowed 
to be open burned, such as tree trimmings, yard waste, and paper 
generated by a single-family residence. EPA emphasizes that open 
burning must also comply with any fire safety codes or other applicable 
regulations that may also govern outdoor burning and the use of burn 
barrels.
    EPA recognizes that removing the exemption from the final rule may 
mean that some reservation residents who currently dispose of household 
wastes by burning may not be in compliance with the rule. As with the 
other rules being published today, EPA's initial

[[Page 18079]]

focus on compliance assurance work will be in the form of assistance, 
outreach, and education that will inform affected individuals and 
organizations of the new rules and the adverse health effects of 
burning. We intend to work with Tribal and local governments to 
identify alternatives to open burning and plan to use a variety of 
tools to monitor and respond to violations of the general open burning 
rule. EPA's approach for implementation of the FARR is described in 
section II.F.
    Through outreach and education, it is EPA's goal to eliminate open 
burning disposal practices where alternative methods are feasible and 
practicable, to encourage the development of alternative disposal 
methods, to emphasize resource recovery, and to encourage utilization 
of the highest and best practicable burning methods to minimize 
emissions where other disposal practices are not feasible. EPA strongly 
supports Tribes, States, and other entities in continuing efforts to 
reduce open burning in their jurisdictions and generally encourages 
alternate methods for disposing of waste. EPA is working with both 
Tribes and States to enhance the awareness of the health concerns of 
open burning and facilitate the use of alternate disposal methods 
through outreach and recycling programs.
    EPA is still concerned about the health effects of even limited 
outdoor burning. Therefore, we intend to continue to evaluate our 
approach as we gain experience implementing the rules published today, 
and consider whether outdoor burning should be further limited or 
completely banned in the future. We are interested in input regarding 
whether we should consider additional separate rulemaking to ban all 
outdoor burning on reservations, or only allow limited open burning 
where garbage pickup or recycling is not reasonably available.

C. Economic Impacts

    In response to EPA's request in the proposal for information about 
the assumptions EPA used to estimate the economic impacts of the rules, 
a number of commenters wrote that the proposed rules may have an 
economic effect on the agricultural sector and could affect business 
development on reservations. A number of farmers and organizations that 
represent the farming community expressed concern that the proposed 
rules will establish requirements to eliminate field burning. The 
comments described the value of the agricultural sector within specific 
reservations, and expressed concern that the proposed rules in general 
would hinder the farmers' ability to use their land to make a living 
and also diminish the value of their land. Many of those commenters and 
several local governments were concerned that if the rules authorize 
Tribal governments to regulate nonmember residents of a particular 
reservation, the jurisdictional issues that arise from these rules 
would have a negative impact on businesses in the affected areas. The 
commenters were worried that jurisdictional conflicts could inhibit new 
business and industry from locating on property subject to Tribal air 
quality control and drive businesses out of the affected areas. 
However, no commenters provided any specific information about the 
potential economic impacts of the proposed rules.
    EPA Response. The commenters in the agricultural community who 
expressed concern that the rules as proposed would cause economic 
disruption by eliminating field burning appear to have misunderstood 
the proposal. EPA did not propose a ban on agricultural field burning, 
and these final rules do not establish any ban on field burning. The 
rule for general open burning at Sec.  49.131 prohibits certain 
materials from being openly burned, but does not prohibit agricultural 
burning. On the Nez Perce Reservation and Umatilla Indian Reservation, 
in addition to the general open burning rule, EPA is establishing a 
rule for agricultural burning permits at Sec.  49.133 that requires 
farmers to obtain approval of a permit from EPA before conducting an 
agricultural burn. Currently, EPA and the Nez Perce Tribe have 
established an intergovernmental agreement with the Idaho State 
Department of Agriculture and the Idaho Department of Environmental 
Quality that provides for a coordinated management of agricultural 
burning activities in the Clearwater Airshed; if necessary, the 
agreement will be modified to reflect the role of these rules. EPA 
expects to establish a similar intergovernmental agreement with the 
Confederated Tribes of the Umatilla Indian Reservation. Additionally, 
the requirements in the FIPs for agricultural burning permits and open 
burning are similar to requirements in surrounding jurisdictions.
    As discussed elsewhere, a number of commenters misunderstood the 
proposed rules as providing authority to Tribal governments over 
nonmembers. The commenters' concerns that the FARR would inhibit new 
businesses and drive out existing businesses appear to be based upon 
this misunderstanding. The FIPs are Federal rules issued by EPA under 
the Federal CAA, and do not provide any authority for Tribes to use 
Tribal laws to regulate nonmember conduct on any reservation or for 
Tribes to enforce Tribal law against nonmembers in Tribal courts. Since 
these rules are Federal rules, we are not expressing any opinion about 
the validity of such concerns at this time. From a Federal perspective, 
EPA already regulates businesses on these Indian reservations under the 
CAA under existing Federal regulatory programs such as the PSD, 
National Emission Standards for Hazardous Air Pollutants (NESHAP), and 
New Source Performance Standards (NSPS) programs. Today's rules 
establish additional Federal requirements for industry and residents on 
reservations that are similar to the requirements imposed by the rules 
of State and local air agencies in the surrounding areas. The rule 
authorizing non-Title V operating permits at Sec.  49.139 offers a real 
benefit to industry and businesses by providing a means to obtain 
enforceable limits on the source's potential to emit for purposes of 
PSD, Title V, or section 112 of the Act. Today's rules also provide 
greater certainty to businesses by clearly identifying applicable CAA 
requirements.
    In developing the proposed rulemaking, EPA estimated the economic 
impacts of these requirements in an Economic Impact Analysis (EIA). In 
the Federal Register notice for the proposal, EPA specifically 
solicited comments on certain assumptions regarding capital costs, 
operation and maintenance (O&M) costs, and the costs of meeting visible 
emission and fugitive emission requirements, conducting source tests, 
and meeting the sulfur content in fuel limits. EPA explained that, for 
the purposes of generating cost estimates in the EIA for each of the 
proposed rules, EPA assumed that there would be no capital costs 
incurred under any of these rules. EPA stated that it believes sources 
generally are complying with State and local rules in the absence of 
Federal rules because the sources may have believed they were subject 
to State and local rules or otherwise chose to follow such rules. 
Furthermore, based on information obtained from Tribal, State, and 
local authorities, as well as businesses and other entities affected by 
these rules, EPA did not anticipate that facilities would add control 
devices as a result of these rules. In the proposal, EPA did not 
estimate O&M costs to comply with these rules because insufficient data 
were available to estimate them. EPA has again evaluated the potential 
economic impacts of these rules, after

[[Page 18080]]

considering comments on the proposed rules. No specific information was 
submitted about the EIA assumptions in comments on the proposed 
rulemaking to indicate that the EIA prepared by EPA for the rules is 
incorrect. The EIA has been updated to reflect rule revisions, updated 
wage rates, and new information about the sources on the 39 Indian 
reservations. As described in the EIA, annualized labor costs are 
estimated to be $120,872, annualized non-labor costs are estimated to 
be $17,475 (which is divided between annualized start-up costs of 
$14,175 and recurring annual [O&M] costs of $3,300), and incremental 
pollution abatement capital equipment expenditures are assumed to be 
zero for a total estimated cost of $138,347 annually after all rules 
are fully implemented. These estimates are the cumulative costs for all 
businesses affected by the rules. The final Economic Impact Analysis is 
available in the docket for this rulemaking.

D. Delegation of Authority to Tribes

    A number of commenters were concerned that the proposed rules would 
delegate authority to Tribal governments to regulate the activities of 
non-Tribal members on privately owned land within the reservation. The 
commenters believed that such rules would be unconstitutional, stating 
that non-Tribal citizens have no voice or representation in Tribal 
government and are not able to vote in Tribal elections.
    Several commenters had questions about how the delegation process 
is different than the process for a Tribe to be approved for TAS. 
Several Tribes reminded EPA that the CAA was enacted with the 
expectation that Tribal governments would be managing air quality on 
reservations. The commenters asked EPA to ensure that these rules and 
the delegation provisions do not diminish the rights or ability of 
Tribes to establish requirements under Tribal law.
    In its comments on the proposed delegation provision at Sec.  
49.122, a State environmental agency stated that it supported 
delegation of provisions of the FARR to Tribes, but requested that the 
State, affected stakeholders, and local communities be given an 
opportunity to participate in the development of delegation agreements 
by at least being offered the opportunity to comment. Another local 
government also requested an opportunity to comment on proposed 
delegation agreements. The State also requested that, prior to 
delegation, EPA require the Tribe to demonstrate that it has sufficient 
resources to ensure that the terms and conditions of the agreement can 
be met. The State also asked EPA to explain the specific Federal 
functions that would be subject to delegation under the proposed 
regulation.
    EPA Response: The rule EPA is finalizing at Sec.  49.122 authorizes 
a partial delegation of administrative authority to a Tribal government 
for the purpose of assisting EPA in administering one or more of the 
Federal rules that have been promulgated for a Tribe's reservation. 
While a Tribe may be delegated administrative authority for one or more 
of the Federal rules, EPA will maintain sole authority to enforce the 
FARR. Since this would be a delegated Federal program, any Federal 
requirement administered by a delegated Tribe is subject to EPA 
enforcement and EPA appeal procedures, not the Tribe's, under Federal 
law. The delegation provision allows EPA to delegate distinct roles for 
assisting EPA and severable Federal regulations to qualified Tribes for 
administration, without requiring a Tribe to take on all aspects of the 
FARR. This provision provides EPA additional flexibility for 
implementing these rules where EPA believes delegation is appropriate. 
The delegation process in this rule is similar to the process EPA uses 
to delegate authority to States to administer Federal programs such as 
PSD and Title V. Nothing in these rules requires EPA to delegate 
administrative authorities to Tribes. The partial delegation would 
authorize a Tribal government to administer specific functions of the 
FARR rules, with Tribal government employees acting as authorized 
representatives of EPA. EPA and the delegated Tribe would, as 
appropriate, establish mechanisms to fund the work by Tribal staff, 
that may include Federal funding assistance through cooperative 
agreements and grants and/or user fees and charges established by the 
Tribe to fund its administrative activities on behalf of EPA. The Tribe 
would be authorized to administer one or more of the rules, with the 
oversight of EPA staff. Any challenges to an action will be handled 
directly by EPA, and any formal appeals or enforcement actions will 
proceed under EPA's administrative and civil judicial procedures.
    As EPA stated in the proposed rulemaking, the administrative 
delegation from EPA to a Tribe to implement a specific Federal air rule 
is to be distinguished from EPA's interpretation that the CAA is a 
delegation of Federal authority from Congress to Tribes. It is EPA's 
position that the CAA TAS provision constitutes a statutory delegation 
of authority to eligible Tribes over their reservations. Under the CAA, 
Tribes may develop air programs covering their reservations and non-
reservation areas within their jurisdiction for submission to EPA for 
approval in the same manner as States. 63 FR 7254-7259; 59 FR 43958-
43960. The U.S. Court of Appeals for the District of Columbia Circuit 
upheld the TAR in Arizona Public Service Co. v. EPA, 211 F.3d 1280 
(D.C. Cir. 2000), cert. denied 121 S. Ct. 1600 (2001). The TAR 
established how EPA can approve Tribal eligibility applications for a 
Tribe to operate a CAA program under Tribal law using a modular 
approach. EPA expects that many Tribes will develop their own air 
quality programs. However, Tribes are not required to adopt and 
implement all CAA programs at once.
    The approach being used in these final regulations will allow 
Tribes that are building air quality programs to gain experience by 
assisting EPA with implementation of the Federal rules before they 
decide to adopt their own Tribal rules. EPA recognizes that a Tribe may 
choose not to develop a Tribal air program under Tribal law for 
approval under the TAR, but may still want to assist EPA in 
implementing the Federal air quality requirements for its reservation 
and to build its capacity in managing an air quality program. However, 
EPA stresses that establishing a delegation agreement to assist EPA in 
implementing the FARR on a reservation will not affect a Tribe's 
eligibility for TAS. EPA anticipates that the capability and experience 
gained through assisting EPA will help Tribes decide whether to 
establish their own CAA programs to either supplement or substitute for 
the Federal rules for their particular reservation.
    EPA recognizes that a number of the commenters believe it is 
unconstitutional for a Federal law to subject nonmembers to the laws of 
an Indian Tribe. As noted above, however, these commenters have 
misunderstood these rules because the FARR consists of Federal 
requirements, to be enforced by the Federal government. Still, it is 
important to note that the commenters' concerns have been addressed by 
the courts including, as noted above, in relation to EPA's 
interpretation of the CAA TAS provision as a Congressional delegation 
of authority to Tribes over their reservations which was upheld by the 
U.S. Court of Appeals for the D.C. Circuit.
    EPA stresses that a delegation agreement is not the only mechanism 
by which a Tribe can assist EPA in implementing one or more of the 
rules. EPA may choose to make arrangements

[[Page 18081]]

with Indian Tribes under a variety of Federal assistance authorities, 
such as grants, cooperative agreements, or contracts, where the work to 
be accomplished would be specified in the financial assistance 
documents.
    The final rule at Sec.  49.122 retains the same provision as 
proposed by EPA to delegate to a Tribe the authority to help EPA 
implement the FARR on the Tribe's reservation. EPA is, however, making 
several revisions to the rules in response to comments. For example, 
the title of the rule is changed to read ``Partial Delegation of 
Administrative Authority.'' This revised title is designed to clarify 
that the rule authorizes EPA to delegate only the authority to assist 
in the administration of, but not enforce, the rules. The final rule at 
Sec.  49.122(a) explicitly states that the rules covered by a 
delegation agreement would be enforced by EPA, as appropriate.
    In response to requests for an opportunity to participate in the 
development of these partial delegation agreements, this rule includes 
a new subsection, Sec.  49.122(d)(1), that provides for stakeholder 
involvement prior to completing a partial delegation agreement. This 
new subsection of the rule provides that prior to completing a partial 
delegation agreement under the rule, EPA will consult with appropriate 
governmental entities outside of the specified reservation, and with 
city and county governments located within the boundaries of the 
specified reservation. EPA has defined appropriate governmental 
entities as States, Tribes, and other Federal entities located 
contiguous to the Tribe applying for eligibility. See generally, 56 FR 
64876, 64884 (December 12, 1991) and 63 FR 7267 (February 12, 1998). 
EPA does not believe that it is necessary or appropriate to require 
additional public participation procedures for establishing a partial 
delegation agreement between EPA and a Tribe because it will be limited 
to describing how a Tribe will assist EPA by administering one or more 
of the rules. EPA will however, publish a notice in the Federal 
Register informing the public of any partial delegation agreement for a 
particular Indian reservation and will indicate such delegation in the 
implementation plan for the Indian reservation. EPA will also publish 
an announcement of the partial delegation agreement in local 
newspapers.
    EPA agrees that it will delegate authority to help administer these 
rules only to Tribes capable of doing the work properly. The final rule 
is modified to expressly require a Tribe to demonstrate both the 
technical capability and adequate resources to administer the rule 
under a partial delegation agreement. The FARR at Sec.  49.122(b) 
describes the criteria a Tribe must meet when applying for a partial 
delegation, including that the Tribe has (or is acquiring) the 
technical capability and resources to carry out the aspects of the 
rules and provisions for which delegation is requested. As already 
noted, EPA has no obligation to delegate administrative authorities to 
Tribes, and we will do so only where the Tribe has demonstrated that 
the work will be carried out properly. EPA also expects the partial 
delegation agreements will include provisions to regularly review 
performance by the Tribe and identify implementation issues that could 
be addressed by modifying the delegation agreement.
    Consistent with the proposal, this final rule does not list the 
rules or Federal functions that may be delegated. For some portions of 
the FARR, EPA expects to initially retain full administration of the 
program without administratively delegating any aspects to Tribes so 
that we can gain experience with the process for implementation and 
become familiar with the regulated community. For example, EPA wants to 
gain experience with implementing the rule for non-Title V operating 
permits at Sec.  49.139 by using Federal administrative procedures. A 
number of rules are not subject to delegation because they are self-
implementing standards that are to be met by the regulated community, 
such as the rules at Sec.  49.124 (Rule for limiting visible 
emissions), Sec.  49.125 (Rule for limiting the emissions of 
particulate matter), Sec.  49.126 (Rule for limiting fugitive 
particulate matter emissions), Sec.  49.127 (Rule for woodwaste 
burners), Sec.  49.128 (Rule for limiting particulate matter emissions 
from wood products industry sources), and Sec.  49.129 (Rule for 
limiting emissions of sulfur dioxide). On the Nez Perce Reservation, 
where we have been working closely with the Tribe, and the Umatilla 
Indian Reservation, where EPA is promulgating burning permit programs 
for both reservations, EPA expects to establish delegation agreements 
with the Tribes to provide local handling of permitting and 
implementation needs.
    Tribal governments will be able to provide a variety of expertise 
to assist EPA in implementing these rules. For example, EPA anticipates 
arrangements for administering the open burning rule may include 
coordination with local fire marshals and fire safety officials. The 
specific provisions of each delegation agreement will be tailored, as 
appropriate, in light of each Tribal government's operations, the 
location of the reservation, or other relevant factors.

E. Public Participation in the Rulemaking

    When the proposed rules were published on March 15, 2002, EPA 
provided a 90-day public comment period ending on June 13, 2002. Before 
the close of the comment period, some local governments and several 
individuals requested more time to comment on the proposed rules, 
writing that more time was needed to provide all affected parties an 
opportunity to comment and to allow thorough review of the proposed 
rules by elected officials. In response to the requests for additional 
time to comment on the proposal, EPA reopened the comment period from 
August 9, 2002 until October 10, 2002 and held a public hearing in 
Toppenish, Washington, on the Yakama Reservation, on September 10, 
2002. The hearing was advertised in various newspapers in Washington, 
Oregon, and Idaho. EPA offered an afternoon information session for 
questions and answers before the evening hearing in Toppenish. 
Approximately 90 people attended the information session and hearing, 
and 28 people testified at the hearing. A copy of the transcript from 
the public hearing is in the docket.
    During the second comment period, EPA received a number of 
additional comments requesting more time for public participation. A 
number of commenters criticized EPA for consulting with Tribal 
governments for a number of years during the development of the 
proposed rules, and stated that EPA had not provided adequate time for 
local governments to participate. A number of other commenters wrote 
that EPA had offered enough time for interested parties to comment.
    Several comments criticized EPA, asserting that EPA failed to 
follow the EPA Public Involvement Policy (46 FR 5736, January 19, 1981 
and 68 FR 33946, June 6, 2003) for early consultation and involvement 
prior to publishing the proposed rules. Commenters also stated that EPA 
failed to comply with Executive Order 13132 on Federalism, asserting 
that EPA did not meet its requirements for early consultation with 
State and local officials during rule development. Several commenters 
stated that EPA had not completed an environmental assessment of the 
rules, which the commenters believed was subject to the National 
Environmental Policy Act (NEPA).

[[Page 18082]]

    EPA Response: EPA believes it provided adequate time and 
opportunity for the public, as well as State and local agencies, to 
fully participate in the rulemaking. EPA invited review of the proposed 
rules from State and local air agencies well in advance of starting the 
public comment period in March 2002, reopened the original 90-day 
comment period at the request of commenters, and held a public hearing 
one month before the public comment period ended.
    When determining how much time to offer for public comment, EPA 
also considered that State and local air agencies had opportunities to 
review and comment on the proposal well in advance of the public 
comment period. As noted in the proposal, EPA provided advance draft 
copies of the proposed rules to State and local air agencies in Idaho, 
Oregon, and Washington. Specifically, EPA provided a draft of the 
proposal to State and local air agencies in July 2001 and solicited 
input. Generally, the States and local air agencies were pleased that 
EPA was developing rules for Indian reservations and provided useful 
feedback on the draft.
    EPA disagrees with the commenters who think that EPA should not 
have worked so closely with Tribal governments. The Agency believes it 
has proceeded with this rulemaking consistent with all Agency policies 
and Presidential directives. The approach EPA followed to consult with 
affected Tribes in Region 10 in the development of these rules is 
consistent with EPA's National Indian Policy, Executive Order 13175 
``Consultation and Coordination with Indian Tribal Governments,'' 65 FR 
67249 (November 6, 2000), and other Federal policies on Tribal 
consultation that require 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.
    Moreover, as discussed above, EPA also provided State and local air 
agencies an opportunity to review and comment on a complete draft. When 
we issued the proposed rules, EPA published many notices of the public 
comment opportunity and offered to hold a public hearing if requested. 
When we decided to reopen the comment period, we gave widespread notice 
of the additional time and of the scheduled public hearing. The fact 
that many citizens and Tribal, State, and local governments were aware 
of the proposal, submitted written comments, and attended the public 
hearing demonstra