Federal Implementation Plan Under the Clean Air Act for Certain Trust Lands of the Forest County Potawatomi Community Reservation if Designated as a PSD Class I Area; State of Wisconsin, 75694-75703 [E6-21523]

Download as PDF 75694 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules proposed, we will codify the error correction by amending 40 CFR 52.1470(b), 52.1470(c)(11), and 52.1483 accordingly.5 V. Proposed Actions, Public Comment and Final Actions jlentini on PROD1PC65 with PROPOSAL Under section 110(k)(3) of the CAA, EPA is proposing approval of a request by the State of Nevada for rescission of NAC 445.667 (‘‘Excess emissions: Scheduled maintenance; testing; malfunctions’’) from the applicable SIP because of the connection between NAC 445.667 and NAQR article 2.5.4, which we approved in error and for which we are proposing disapproval. EPA is also proposing, under section 110(k)(6) of the CAA, to correct errors made by the Agency in approving NAQR article 2.5.4 in 1972 and again in 1978 as part of the applicable SIP by disapproving the previously approved versions of the rule and thereby deleting NAQR article 2.5.4 from the applicable SIP. We are proposing this correction because the subject rule provides an exemption from enforcement at the State’s discretion for certain excess emissions and is thereby inconsistent with the fundamental purpose of the SIP, which is to provide for implementation, maintenance, and enforcement of the NAAQS, inconsistent with Congressional intent for continuous emission limits, and inconsistent with the regulatory structure of the Clean Air Act which provides for independent enforcement authority by EPA and citizens. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final rule that will rescind NAC 445.667, and that will delete NAQR article 2.5.4, from the applicable Nevada SIP, and to codify the latter action by amending 40 CFR 52.1470(b), 52.1470(c)(11), and 52.1483 accordingly. 5 We note that our proposed action herein of disapproving a previously approved excess emissions rule is consistent with actions we have taken on similar excess emissions provisions in other portions of the Nevada SIP and in other SIPs. For example, in 1981, we disapproved section 12, an excess emissions rule adopted by Clark County (that we had previously approved as part of the Clark County portion of the Nevada SIP) on similar grounds as described herein. See 46 FR 43141 (August 27, 1981) and 69 FR 54006 (September 7, 2004). In 1978, we disapproved similar excess emissions rules adopted by 22 different air pollution control districts in the State of California and, in some instances, reversed previous approvals of prior versions of those rules. See 43 FR 33915 (August 2, 1978). VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a ‘‘significant regulatory action’’ and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action merely proposes to delete previously approved state rules that, viewed collectively, fail to meet Federal requirements and imposes no additional requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to rescind or delete pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104–4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to delete previously approved state rules that, viewed collectively, fail to implement a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: December 8, 2006. Jane Diamond, Acting Regional Administrator, Region IX. [FR Doc. E6–21500 Filed 12–15–06; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2004–WI–0002; FRL–8258– 1] Federal Implementation Plan Under the Clean Air Act for Certain Trust Lands of the Forest County Potawatomi Community Reservation if Designated as a PSD Class I Area; State of Wisconsin Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: On June 29, 1995, and July 10, 1997, EPA proposed to approve a request by the Forest County Potawatomi Community (FCP Community) to redesignate certain trust lands within its reservation as Class I with respect to the Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) construction permit program. In these proposals, EPA did not explicitly state the mechanism it would use if it granted the redesignation request nor did the Agency include a draft of its codification. In this action, EPA is proposing that it will promulgate a Federal Implementation Plan (FIP) if it approves FCP Community’s request and E:\FR\FM\18DEP1.SGM 18DEP1 jlentini on PROD1PC65 with PROPOSAL Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules this action proposes potential codification language. This FIP will be implemented by EPA unless or until it is replaced by a Tribal Implementation Plan (TIP). DATES: Comments. Comments must be received on or before January 17, 2007. Public Hearing. The EPA intends to hold two public hearings on this proposed action, one on the Forest County Potawatomi Reservation and one in the nearby community. The dates, times, and location of these public hearings will be announced shortly in a separate Federal Register notice. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2004–WI–0002 by one of the following methods: • www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: a-and-rdocket@epamail.epa.gov. • Fax: 202–566–1741. • Mail: Attention Docket ID No. EPA– R05–OAR–2004–WI–0002, U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW., Mail Code 6102T, Washington, DC 20460. Please include a total of 2 copies. • Hand Delivery: U.S. Environmental Protection Agency, EPA West (Air Docket), 1301 Constitution Avenue, Northwest, Room 3334, Washington, DC 20004, Attention Docket ID No. EPA– R05–OAR–2004–WI–0002. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R05–OAR–2004– WI–0002. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or email. The www.regulations.gov Web site is an anonymous access system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in the www.regulations.gov index. 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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, Northwest, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air Docket is (202) 566– 1742. FOR FURTHER INFORMATION CONTACT: For technical information, contact Constantine Blathras, Air and Radiation Division, U.S. EPA, Region 5 (AR–18J), 77 West Jackson Boulevard, Chicago, Illinois 60604–3507, telephone number: (312) 886–6071, facsimile number: (312) 886–5824, electronic mail address: blathras.constantine@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action if finally promulgated will apply to applicants to the Prevention of Significant Deterioration (PSD) construction permit program on Class I trust lands of the Forest County Potawatomi Community (FCP Community). B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI. Do not submit information that you consider to be CBI electronically through www.regulations.gov or e-mail. Clearly mark the part or all of the information PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 75695 that you claim to be CBI. For CBI information in a disk or CD–ROM that you mail to EPA, mark the outside of the disk or CD–ROM as CBI and then identify electronically within the disk or CD–ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Also, send an additional copy clearly marked as above not only to the Air docket but to: Roberto Morales, c/o OAQPS Document Control Officer, (C339–03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, Attention Docket ID No. EPA–R05–OAR–2004–WI–0002. 2. Tips for Preparing Your Comments. When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/ or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. Where Can I Get a Copy of This Document and Other Related Information? In addition to being available electronically in www.regulations.gov, electronic copies of the docket are also available at the following repositories: Crandon Public Library, Attention: Tina Inger, Director, 110 West Polk Street, Crandon, Wisconsin 54520; Rhinelander District Library, Attention: Kris Adams Wendt, Director, 106 North Stevens Street Rhinelander, Wisconsin 54501; and the Forest County Potawatomi E:\FR\FM\18DEP1.SGM 18DEP1 75696 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules Natural Resource Department, Attention: Daniele Dusold, Wensaut Lane, Crandon, Wisconsin 54520. D. How Can I Find Information About a Possible Public Hearing? The EPA intends to hold two public hearings on this action, one on the Forest County Potawatomi Reservation and one off-reservation. The dates, times, and location of these public hearings will be announced shortly in a separate Federal Register notice. Persons interested in attending the public hearing should contact Mr. J. Elmer Bortzer, Air and Radiation Division, U.S. EPA, Region 5 (AR–18J), 77 West Jackson Boulevard, Chicago, Illinois 60604–3507, telephone number: (312) 886–1430, facsimile number: (312) 886–5824, e-mail address: bortzer.jay@epa.gov to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed changes. jlentini on PROD1PC65 with PROPOSAL E. Overview of the Rule The information presented in this preamble is organized as follows: I. General Information A. Does This Action Apply to Me? B. What Should I Consider as I Prepare My Comments for EPA? C. Where Can I Get a Copy of This Document and Other Related Information? D. How Can I Find Information About a Possible Hearing? E. Overview of Rule II. Purpose III. Background A. The FCP Community Request for Redesignation to Class I. Brief Summary of Past Comments B. The CAA’s PSD Program in Indian Country IV. Tribal Implementation Plans and Federal Implementation Plans V. The Federal Implementation Plan for the FCP Community’s Class I Area A. Current Codification of the PSD Program in Wisconsin and the FCP Community Lands B. Proposed Codification for an FCP Community Class I Redesignation VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5 U.S.C. 601 et seq. D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations J. National Technology Transfer Advancement Act VII. Statutory Authority II. Purpose In this action, EPA is proposing to codify the Class I resignations in a Federal Implementation Plan (FIP) if the Agency approves the FCP Communty’s redesignation request; this notice also proposes potential codification language. The EPA solicits comments on today’s proposal as to whether a FIP is the appropriate mechanism with which to codify the FCP Community’s redesignation of their lands to Class I, if approved, the proposed codification, and any related procedural issues. Although EPA strongly encourages commenters to focus on these issues, comments on other aspects of the redesignation request will also be accepted. Interested parties should submit comments as detailed in the ADDRESSES section of this proposed rule. III. Background A. The FCP Community Request for Redesignation to Class I On February 14, 1995, the FCP Community submitted a formal request to EPA to redesignate certain trust lands within their reservation to Class I under the CAA PSD construction permit program. On June 29, 1995 (60 FR 33779), and July 10, 1997 (62 FR 37007), EPA proposed to approve the request. In addition, in 1997 EPA also held public hearings on the redesignation request. Both Wisconsin and Michigan objected to the proposed redesignation and requested dispute resolution under Section 164(e) of the CAA. To resolve the dispute with the State of Wisconsin, the FCP Community and Wisconsin entered into a Memorandum of Agreement (FCP Community-Wisconsin MOA) for implementation of the proposed Class I area in Wisconsin. For those provisions of the agreement, and any other aspects of the dispute resolution that will need to be made federally enforceable, EPA will codify them as appropriate should it determine to grant the redesignation request. For example, the agreement’s limitation of certain increment analyses to a ten mile radius may need to be codified in federally enforceable regulations. Specifically, the agreement between the FCP Community and Wisconsin subjects all major sources in Wisconsin PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 located within a ten (10) mile radius of any redesignated Tribal land to performing an increment analysis and to meeting consumption requirements applicable to a class I area. Major sources located outside of ten (10) miles are subject to increment analysis and consumption requirements applicable to any redesignated Tribal land as if it were a class II area. Also under the agreement, all major sources within sixty-two (62) miles are subject to an analysis of their impact on air quality related values (AQRVs) of the redesignated Tribal lands to determine if they will have an adverse impact on these AQRVs. The Agency believes that the Tribe and Wisconsin may enter into such an agreement. When the dispute resolution process in section 164(e) is invoked by an affected state or tribe, EPA is called upon to participate in that process and to recommend a resolution, if requested by the parties, or to finally resolve the dispute, if the parties are unable to reach agreement. However, where the parties successfully reach agreement through the dispute resolution process, EPA is inclined to read section 164(e) of the CAA to provide that EPA has no further role to play in the dispute resolution process. The EPA is not required to review or approve the terms of the agreement, and the Agency is inclined to respect agreements that obviate the need for the Administrator to make a decision resolving the matter. If the parties to the dispute reach an agreement through the 164(e) process without EPA resolution, EPA proposes not to interfere with the agreement and to rest its final decision to approve or deny the redesignation on the criteria in 164(b)(2) of the CAA. In commenting on the proposed codification, commenters may wish to comment on the potential need to codify certain provisions of the agreement or aspects of the dispute resolution as well. The FCP Community-Wisconsin MOA, together with related materials, is available in the docket for this proposal. The FCP Community and the State of Michigan have not been able to resolve their differences. The EPA anticipates acting on the FCP Community request and remaining aspects of the dispute resolution process with the States after the close of the public comment period on today’s proposal. Brief Summary of Past Comments During the initial comment period and public hearings, EPA received several comments on the proposed redesignation. The Agency will respond to all significant comments in the final rule resolving the redesignation request, E:\FR\FM\18DEP1.SGM 18DEP1 jlentini on PROD1PC65 with PROPOSAL Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules but includes a brief discussion and response to two of those comments. First, several commenters argued that the request for redesignation should be denied either because the FCP Community identified certain air quality related values (‘‘AQRVs’’) after submitting their initial request or that the lands proposed for redesignation were not of sufficient size or quality to possess AQRVs. However, neither Section 164(b) of the CAA nor EPA’s implementing regulations governing redesignation require a State or Tribe requesting a redesignation to demonstrate or establish that the affected lands have AQRVs, and Congress did not make AQRVs a prerequisite for redesignation of nonfederal Class I areas. It is therefore unnecessary for EPA to determine what AQRVs the lands at issue might possess in order for the Agency to act on, including granting, the redesignation request. See 61 FR 56450, 56458–56459 (Nov. 1, 1996) (redesignation of Yavapai-Apache lands). A second area of significant comment alleged that the areas proposed for redesignation were either too small or too dispersed to allow for effective air quality management as discussed in sections 162 and 164 of the CAA. Section 162 of the Act designates certain areas as mandatory Class I areas. The Act also provides for non-federal Class I areas, and Section 164(c) specifically states that ‘‘Lands within the exterior boundaries of reservations of federally recognized Indian tribes may be redesignated,’’ but does not speak to what size lands might be appropriate for a redesignation to Class I. In disputes resolving area redesignation, section 164(e) requires EPA to consider (the extent to which the lands involved are of sufficient size to allow effective air quality management.’’ In its decision to grant the Class I redesignation request for the Yavapai-Apache reservation, (which is similar to the FCP reservation in that it consists of a number of relatively small, discrete parcels of land), EPA examined whether it would be difficult to perform a PSD air quality modeling analysis that assessed the impacts of a proposed source in such a situation. The EPA concluded that based on existing modeling tools it would be relatively simple and practicable for a proposed source to project its impact on the Class I area parcels and evaluate the analysis. See 61 Fed. Reg. at 56457–56458. Consideration of the size of the redesignated lands, therefore, can be evaluated based upon the Agency’s experience in the Yavapai-Apache redesignation. We solicit comment on VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 the two issues presented above and EPA’s response to them. B. The CAA’s PSD Program in Indian Country The CAA gives EPA broad authority to protect air resources throughout the nation, including the resources on Indian reservations and other areas of Indian country. Part C of the CAA lays out the PSD construction permit program. It is based on the concept that new sources and modifications of existing sources in relatively pollution free lands, i.e., lands attaining the National Ambient Air Quality Standards (NAAQS), should not be allowed to increase emissions such that ambient pollutant levels rise to the level of the NAAQS. Instead, these sources’ emissions are limited such that ambient levels cannot exceed the pollutant specific increments in the CAA or EPA regulations. The CAA provides three levels of increments for each pollutant, Class I which is the most stringent, Class II, which is what most of the United States was initially designated by the CAA, and Class III, which is the least stringent. Section 164 affords states and tribes the right to request that EPA redesignate lands under their control. Historically only tribes have made such requests, and in all these cases, the tribes requested redesignation from Class II to Class I. The FCP Community, likewise, requested that EPA redesignate certain of their lands from Class II to Class I. Under the CAA, generally EPA must approve this request if all procedural requirements are met. One of the tribes that requested redesignation from Class II to Class I before FCP Community was the Yavapai Apache Tribe, and on October 2, 1996 EPA approved the request. The State of Arizona, within which the Yavapai Apache lands were located, had raised objections to the redesignation and requested to enter into Section 164(e) dispute negotiations with the Yavapai Apache. The EPA held a meeting with the parties, but ultimately no agreement was reached. The EPA was forced to resolve the dispute, and did so by granting the redesignation request and codifying the redesignation in a FIP. 61 FR 56461 (November 1, 1996) and 61 FR 56450 (November 1, 1996). The State of Arizona continued to dispute the approval of the reservation to Class I and filed a suit before the United States Court of Appeals for the Ninth Circuit. See, Administrator, State of Arizona v. EPA, 151 F.3d 1205 (9th Cir. 1998). The Ninth Circuit’s decision stated, among other things, that EPA should have codified the Class I area in a TIP rather than a FIP, and remanded the PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 75697 redesignation back to the EPA regional office so that EPA could follow the appropriate procedures for promulgating the Class I area as a TIP. On February 12, 1998, however, EPA promulgated a final rule under section 301 of the CAA entitled ‘‘Indian Tribes: Air Quality Planning and Management.’’ 63 FR 7254 (Feb. 12, 1998). This rule, generally referred to as the ‘‘Tribal Authority Rule’’ or ‘‘TAR,’’ discusses those provisions of the CAA for which it is appropriate to treat Indian tribes in the same manner as states and establishes the requirements that Indian tribes must meet if they choose to seek such treatment. The EPA also concluded that certain provisions of the CAA should not be applied to tribes in exactly the same manner in which they were applied to states. One of those provisions was CAA 110(c)(1), which provides the Administrator with the authority to promulgate a FIP within 2 years of finding that a State plan is insufficient. 63 FR at 7265. EPA reasoned that tribes, unlike states, ‘‘in general are in the early stages of developing air planning and implementation expertise’’ because the specific authority for tribes to establish air programs was first expressly addressed in 1990. Id. at 7264–7265. Because tribes were only recent participants in the process, EPA determined it would be inappropriate to hold them to the same deadlines and Federal oversight as the states. Id. at 7265. The EPA noted, though, that it was ‘‘not relieved of its general obligation under the CAA to ensure the protection of air quality throughout the nation, including throughout Indian country.’’ Id. The EPA concluded that the Agency could ‘‘act to protect the air quality pursuant to its ‘gap-filling’ authority under the CAA as a whole’’ and that ‘‘section 301(d)(4) provides EPA with discretionary authority, in cases where it has determined that treatment of tribes as identical to states is ‘inappropriate or administratively infeasible,’ to provide for direct administration through other regulatory means.’’ Id. Under that authority, EPA adopted 40 CFR 49.11, which set the standard for adoption of FIP provisions for Indian Country: ‘‘[The Administrator] [s]hall promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of section 304(a) (sic 301(a)) and 301(d)(4), if a tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 CFR part 51, Appendix V, or does not receive E:\FR\FM\18DEP1.SGM 18DEP1 75698 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules EPA approval of a submitted tribal implementation plan.’’ 40 CFR 49.11(a). The intent of this provision was to recognize that tribes may not initially have the capability to implement their own delegated CAA programs and that the TAR does not relieve EPA of its general obligation under the CAA to protect air quality throughout the nation, including in Indian country. See 63 FR 7265. Therefore, the TAR established two possible routes for the codification of a Class I redesignation on Tribal lands: (1) A TIP, if one has been developed by the Tribe and approved by EPA; and (2) A FIP, if a TIP did not exist and a FIP was necessary to protect air quality. IV. Tribal Implementation Plans and Federal Implementation Plans Consistent with the approach detailed in the TAR, U.S. EPA Region 5 sent a letter to the FCP Community requesting that the Tribe specify what mechanism they wished to use to codify the proposed redesignation to Class I. On August 4, 1999, Harold Frank, Chairman, Forest County Potawatomi Community, sent a letter to Francis X. Lyons, Regional Administrator of EPA Region 5, requesting that EPA promulgate the redesignation of the proposed Class I area parcels in a FIP. The FCP asked EPA to promulgate the Class I area redesignation into a FIP, as opposed to utilizing a TIP, because the FCP Community was continuing to build its capacity and infrastructure to run a Tribal Air Program and was not yet ready to submit its own TIP. On August 23, 1999, EPA sent a letter to the FCP Community agreeing to their request for the Class I redesignation being promulgated in a FIP, should EPA’s rulemaking result in the approval of the FCP Community’s request. Until such time as the FCP Community develops a TIP and has it approved, EPA retains the authority to promulgate the redesignation approval in a FIP. Because the FCP Community’s request and EPA’s original proposal predated the TAR, neither clearly specified the manner in which the redesignation would be codified. The EPA has, therefore, published this supplemental proposal to seek comment on the codification of the FCP Community redesignation, if approved, in a FIP. jlentini on PROD1PC65 with PROPOSAL V. The Federal Implementation Plan for the FCP Community’s Class I Area A. Current Codification of the PSD Program in Wisconsin and the FCP Community Lands On August 7, 1980, EPA promulgated the Federal PSD Program regulations VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 which are codified at 40 CFR 52.21, and which applied to those states that had not submitted a PSD program meeting the requirements of 40 CFR 51.166. 45 FR 52741 (August 7, 1980), as amended at 46 FR 9585 (January 29, 1981). Wisconsin was one such state, and as a result, Wisconsin initially implemented the Federal PSD program under a delegation of authority from EPA. Wisconsin subsequently submitted a PSD rule and program which EPA approved for all sources in Wisconsin except for sources located on tribal lands and other sources that require permits issued by the EPA. See 64 FR 28748 (May 27, 1999). The current EPA regulation addressing the PSD program in Wisconsin reads as follows: 40 CFR 52.2581. Significant deterioration of air quality. (a)–(c) [Reserved] (d) The requirements of sections 160 through 165 of the Act are met, except for sources seeking permits to locate in Indian country within the State of Wisconsin; and sources with permits issued by EPA prior to the effective date of the state’s rules. (e) Regulations for the prevention of the significant deterioration of air quality. The provisions of § 52.21(b) through (w) are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA. B. Proposed Codification for an FCP Community Class I Redesignation Under the authority of section 307(d) of the Act, EPA is proposing to revise its regulation as reflected below if EPA approves the FCP Community request to designate some of its reservation as Class I. In today’s action, EPA is proposing that it will promulgate the resignation in a FIP if EPA approves the FCP Community’s request for redesignation of certain lands within the exterior boundaries of the Tribe’s reservation. This FIP will be implemented by EPA unless or until it is replaced by a Tribal Implementation Plan (TIP). The proposed codification language follows Section VII below. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. The FCP Community prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in ‘‘EPA PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 memorandum dated October 25, 2004’’. A copy of the analysis is available in the docket for this action and is briefly summarized here. As part of its application package for Class I redesignation, the FCP Community has analyzed the potential economic impact of redesignation on the affected region (Forest County and those counties bordering Forest County). This analysis directly supports a finding that the impact of the proposed redesignation would not result in an adverse annual impact to the economy of $100 million or more. As discussed in greater detail in the memorandum, the FCP Community analysis identifies those economic sectors with the largest employment in the area. These are industry, manufacturing and trade, which together account for 46% of the jobs in the affected area. To evaluate the effect of Class I redesignation on economic expansion and future industrial plant development in the affected area, the FCP Community prepared an independent air dispersion modeling analysis to determine the air quality impacts on the Class I area from various new projects. These included a 250-tonper-day paper mill, three different types of power plants, and a mining project. The modeling and screening results analyzed indicate that the proposed Class I redesignation should not have major effects on economic expansion and industrial development in the region. The redesignation could restrict the sitting of large paper mills and large coal-fired powered plants to at least 10 km from the reservation, and would limit the development of multiple projects that would have an unacceptable cumulative effect on the Class I increments, but none of these known proposed developments in the region would be adversely affected. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. We are not promulgating any new paperwork requirements (e.g., monitoring, reporting, recordkeeping) as part of this proposed action. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR parts 51 and 52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060–0003, EPA ICR E:\FR\FM\18DEP1.SGM 18DEP1 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules jlentini on PROD1PC65 with PROPOSAL number 1230.17.1 A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue, NW, Washington, DC 20460 or by calling (202) 566–1672. This analysis included an examination of the additional regulatory burden, per regulated unit, on those sources constructing or modifying near a Class I area, and which may be required to perform a Federal Class I area analysis to determine the effect of the proposed source on AQRV inside the Class I area, and on the consumption of increment, where the baseline has been triggered. It is important to note that not all sources located near Class I areas would have to perform such monitoring; these requirements apply only when emissions from the source have the potential to impact the Class I area. The EPA’s analysis for OMB included the additional burden placed upon the regulated community as well as on State and Federal agencies. The redesignation of FCP Community lands from Class II to Class I is wholly consistent with the analysis put forth in EPA’s ICR and OMB’s approval and no new paperwork requirements are being promulgated with this action. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB 1 The regulations covered under this ICR govern the State and Federal programs for preconstruction review and permitting of major new and modified sources pursuant to Part C ‘‘Prevention of Significant Deterioration’’ (PSD) and Part D ‘‘Program Requirements for Nonattainment Areas’’ of the CAA. The types of information collection activities addressed in this ICR are those necessary for the preparation and submittal of construction permit applications and the issuance of final permits. VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 control number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed action on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-forprofit enterprise that is independently owned and operated and is not dominant in its field. This action does not require a regulatory flexibility analysis because it will not have a significant economic impact on a substantial number of small entities. The EPA believes that the reclassification of the proposed area to Class I will impose virtually no additional requirements on small entities, regardless of whether they are minor sources or major sources. For small entities that are also minor sources, since at the present time the baseline concentrations for this area have not been triggered and none of the Class I increments have yet been consumed, minor emission sources are unaffected by PSD requirements. Should the Class I increments be completely consumed in the future, it is possible that some pollution control requirements would fall to minor sources. However, any such future pollution control requirements imposed on off-reservation sources would be under the jurisdiction of the states, not EPA. Therefore, EPA is not in a present or future position to directly regulate small entities and therefore is not required to conduct an RFA analysis. For small entities that are major sources, the impact is not expected to be substantial. As demonstrated in section VI.A. above, the requirements for demonstrating compliance with the NAAQS and PSD increments for major PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 75699 facilities in and surrounding Class I areas are similar to the requirements for major facilities in and surrounding Class II areas. Therefore, this action will not have a significant impact on a substantial number of small entities. While EPA is not required to conduct an RFA analysis, as a matter of good public policy, the Agency has reviewed information on the impact of the redesignation provided by the FCP Community in its Technical Support Document (TSD) submitted pursuant to the tribe’s request for Class I redesignation. In this document, the Tribe reviewed the potential impact of the Class I redesignation on various types of sources, concluding that impacts of the redesignation to Class I would impact only certain major stationary sources, and would impose no additional requirements on minor sources.2 For example, air dispersion modeling and EPA-approved screening performed for the Tribe’s TSD demonstrates that a 140 MW natural gas fired combustion turbine power plant could be constructed and operated directly adjacent to the reservation without violating any of the Class I increments. Power plants of this type produce relatively high levels of nitrogen oxides (NOX), which are their major emissions, yet despite its direct proximity to a Class I area, such a facility would impact only a small fraction (∼4%) of the allowable Class I increment for NOX. Considering that the FCP Community analysis shows that a major gas-fired power generating facility could be operated immediately next to the reservation without significant impacts, and that only very large industrial projects located within approximately 10 km of the reservation would be affected by the redesignation, it appears very unlikely that any small businesses located within 100 kilometers would produce emissions in large enough quantities to trigger the Class I restrictions. Nevertheless, it is possible that a small business located close enough to the reservation may be a major source of criteria air pollutants. Even in that 2 The EPA has prepared an ICR analysis for the NSR program generally, finding that ‘‘Approximately 2,200 ’small business’’ major sources were estimated to exist; however, only 50 small business facilities employing 500 persons or fewer were projected to be subject to NSR annually. Based on the methodology incorporated in that rulemaking Regulatory Impact Analysis, the Agency concluded that the current part 51 and 52 NSR regulations do not constitute a disproportionate burden on small entities.’’ U.S. EPA, ‘‘Information Collection Request for 40 CFR Part 51 and 52 Prevention of Significant Deterioration and Nonattainment New Source Review, October 12, 2004, at 13.’’ E:\FR\FM\18DEP1.SGM 18DEP1 jlentini on PROD1PC65 with PROPOSAL 75700 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules event, the PSD requirements for Class I areas would be very unlikely to impose a significant financial burden on such a small business. If it is an existing business at the time the redesignation goes into effect, it would not be subject to the PSD permitting requirements, which apply only to new stationary sources or major modifications to existing sources. Even if the small business in question was new to the Class I area, hence subject to PSD permitting, the redesignation would still not impose additional significant financial or regulatory burdens on the small entity. As a major source of criteria air pollutants, the small business would be subject to PSD permitting regulations whether the reservation had been redesignated to Class I or had remained a Class II area, as it is now. Major stationary sources proposing to locate in any PSD area, regardless of whether it is Class II or Class I, must still conduct the same type of analyses to measure the impact of their emissions on the allowable increments and use the best available control technology to reduce their emissions and minimize adverse effects. Should the area remain Class II, the major source would still be required to perform a modeling analysis to ensure that the Class II increments are protected in order to obtain a permit. Since a modeling analysis is required in any case, the cost of adding additional receptor points, if needed, to the modeling analysis to gather the necessary data to ensure that the Class I increments will also be protected should be relatively small. Likewise, since every major stationary source proposing to locate in a PSD area, whether it has been designated as Class I or Class II, must employ ‘‘best available control technology’’ to reduce emissions, proximity to a Class I area generally would not affect the level of control required to meet BACT. In short, regardless of whether they are in a Class II or a Class I area, major sources are required to obtain an air quality permit, conduct modeling analyses, and use the best available technology to control emissions under the PSD program. Thus, as a general rule, redesignation should not inflict additional control costs on a source. Under certain circumstances a major source may be required to achieve further decreases in emissions to reduce its impact on the air quality related values of a Class I area. Such a requirement would necessitate further regulatory action by either the FCP Community or EPA, however, and the impacts of the specific requirements can VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 be appropriately assessed at that time. Additionally, it would be very unusual for a small business to also be a major source and a substantial number of small entities should certainly not be so affected. Several other Indian tribes have redesignated tribal lands to Class I in other parts of the country, and their experience can provide us with some insight into the impact redesignation typically has on small entities in the vicinity. These include the Northern Cheyenne Tribe, Montana; Flathead Indian Reservation, Montana; Fort Peck Indian Reservation, Montana and the Spokane Indian Reservation, Washington, which were redesignated as Class I areas between 1977 and 1990. Thus far, there has been very little economic impact on small businesses, nearby towns, local governments or other small entities following Class I redesignation in those areas. The EPA has no reason to believe that same pattern of minimal economic impact to small businesses will not be repeated in Forest County and the surrounding counties. Small entities that are minor sources of air pollution will not be affected at all by this action at this time. The PSD permit program does not cover minor sources and, as previously discussed, EPA does not directly regulate minor entities. The reclassification of the proposed area to Class I therefore imposes virtually no additional requirements on small entities since the baseline concentration level for Forest County has not yet been triggered and none of the PSD increments in the area have yet been consumed. The baseline concentration is the conceptual reference point or ’’starting’’ point for determining air quality deterioration in an area subject to the PSD program. Thus, the baseline concentration is essentially the ambient air quality existing at the time the first complete PSD application is made for a major new source affecting a PSD baseline area. Since no PSD permit application triggering a baseline date has been submitted in the Forest County area, there has not been any consumption of the PSD increments in the area. Should major and minor sources of pollution consume all of the available increment in an area at some point in the future, it is possible that some pollution control requirements would then fall to minor sources, but since roughly 75% of the land in Forest County is National Forest, and there is presently very little industrial development in the area, there is likely to be little consumption of the Class I increments for some time to come. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 After considering the economic impacts of today’s proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities that are not major sources because this action affects only major stationary sources, as defined by 40 CFR 52.21. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104– 4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’ that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives, and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 E:\FR\FM\18DEP1.SGM 18DEP1 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules jlentini on PROD1PC65 with PROPOSAL million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The redesignation would not impose significant additional financial or regulatory burdens on a new or modified source subject to the PSD permitting requirements. As a major source of criteria air pollutants, a new or modified source would be subject to PSD regulations whether the reservation had been redesignated to Class I or had remained a Class II area, as it is now. New major stationary sources proposing to locate in any PSD area, regardless of whether it is Class II or Class I, must still conduct the same type of analyses to measure the impact of their emissions on the allowable increments and use the best available control technology to reduce their emissions and minimize adverse effects. No additional permits would be required as a result of a redesignation of FCP Community reservation lands. Thus, today’s rule is not subject to the requirements of sections 202 and 205 of the UMRA. The EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because, as already stated in other sections of this regulatory package, the redesignation from a Class II to a Class I area would not impose additional significant financial or regulatory burdens on sources. E. Executive Order 13132: Federalism Executive Order 13132, entitled ‘‘Federalism,’’ 64 FR 43255) (August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or we consult with State and local officials early in the process of developing the proposed VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 regulation. We also may not issue a regulation that has federalism implications and that preempts State law, unless we consult with State and local officials early in the process of developing the proposed regulation. This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule merely implements an authority currently available to Indian tribes to redesignate their reservation lands under the PSD program of the CAA, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, EPA did consult with State and local officials in developing this rule. A summary of the concerns raised during that consultation and EPA’s response to those concerns will be provided when EPA issues its final rulemaking. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ 65 FR 67249 (November 6, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ The EPA has concluded that this proposed rule establishing federal standards will have tribal implications. Thus, consistent with section 3 of the Executive Order, in the process of developing this proposal, EPA consulted with FCP tribal officials to permit them to have meaningful and timely input into its development. EPA consulted with representatives of the FCP Community prior to their submission of the redesignation request. During this consultation, EPA explained the function of the CAA’s redesignation provision, differences between Class I and Class II designations, and alternatives to the proposed Class I redesignation. The FCP Community chose to submit a request for redesignation to Class I on February 14, 1995. Since the FCP Community submitted its request for redesignation, EPA has kept the FCP Community informed of its process for completing the rulemaking through written PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 75701 correspondence, conference calls, and face to face meetings when appropriate. Records of these communications are found in the docket for this proposed action. Most recently, EPA officials held consultations with the FCP Community between May and July 2006 to discuss this proposed action and to answer the Community’s questions. Finally, because the proposed action will neither impose substantial direct compliance costs on tribal governments nor preempt Tribal law, section 5 of Executive Order 13175 is not applicable. Class I redesignation will enable the FCP Community to further their goal of exercising control over reservation resources to better protect the members of their community. Overall, EPA expects that the impact of the redesignation to Class I will be positive. G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks Executive Order 13045: ‘‘Protection of Children from Environmental Health Risks and Safety Risks,’’ 62 FR 19885 (April 23, 1997), applies to any rule that: (1) Is determined to be ‘‘economically significant’’ as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because EPA published a Notice of Proposed Rulemaking before April 21, 1998. Nonetheless, as a matter of EPA Policy, the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Redesignation of the identified parcels of the FCP reservation to Class I status will reduce the allowable increase of various types of pollutants. The reduction of these pollutants can only be expected to better protect the health of tribal members, members of the surrounding communities, and especially children and asthmatics. The adverse health effects of exposure to high levels of criteria air pollutants such as sulfur dioxide and fine particulate matter are well known and E:\FR\FM\18DEP1.SGM 18DEP1 75702 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules jlentini on PROD1PC65 with PROPOSAL well documented.3 Sulfur dioxide, for example, is known to irritate the respiratory system. As explained in the FCP Community’s TSD, exposure to high concentrations for even short periods can cause bronchial constriction and exposure to lower concentrations of sulfur dioxide for longer periods and suppresses the respiratory system’s natural defenses to particles and bacteria.4 Children and asthmatics are especially vulnerable to the adverse health effects of sulfur dioxide.5 If the Class I redesignation is codified in a FIP, the allowable increase of sulfur dioxide after redesignation of the reservation to Class I status (on an annual arithmetic mean basis) will be one-tenth of the current Class II allowable increase, thus providing greater health protection to children from such air pollutants. Likewise, the allowable increase in particulate matter after Class I redesignation (on an annual basis) will be approximately one-fourth of the current Class II increase. Particulate matter consists of airborne particles and aerosols ranging in size from less than 1 micrometer to more than 100 micrometers. Aside from natural sources, industrial activity can release great quantities of particulates (dust, soot, ash and other solid and liquid particles). Combustion products emitted during power generation, heating, motor vehicle use and various industrial processes are also classified as particulate matter. The vast majority (∼99%) of such inhalable particulate matter is trapped in the upper respiratory tract, but the remainder enters the windpipe and the lungs, clinging to the protective mucosa. The smallest particles are deposited in the alveoli and capillaries of the lung, where they impair the exchange of oxygen and causes shortness of breath. Children, the elderly, and people with pulmonary problems and respiratory conditions (e.g., emphysema, bronchitis, asthma, or heart problems) are the most susceptible to these debilitating effects.6 Adverse health effects from particulate matter are often cumulative and progressive, worsening as particulates 3 What are the Six Common Air Pollutants? (March 23, 2004) (available at http://www.epa.gov/ air/urbanair/6poll.html) 4 SO —How Sulfur Dioxide Affects the Way We 2 Live & Breathe. U.S. EPA Office of Air Quality Planning & Standards (November 2000) (available at http://www.epa.gov/air/urbanair/so2/index.html) 5 Health and Environmental Impacts of SO2 (September 30, 2003) (available at http:// www.epa.gov/air/urbanair/so2/hlth1.html) 6 Health and Environmental Impacts of PM (30 September 2003) (available at http://www.epa.gov/ air/urbanair/pm/hlth1.html) VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 gradually collect in the lungs following repeated, long-term exposure.7 Fine particulate matter is the worst offender in that regard. Scientific studies have shown that particulate matter, especially fine particles (those particles with an aerodynamic diameter of less than 2.5 micrometers and commonly known as PM2.5), are retained deep within the lungs.8 Short term exposure to such fine particulate matter can cause lung irritation and may impair immune responses. Some of the material from the particles can dissolve in the lungs, causing cell damage, and the particles themselves may consist of compounds that are toxic or which form acids when combined with moisture in the lungs. Long-term lower level exposures can cause cancer and other respiratory illnesses. Reducing the allowable increase in particulate matter by roughly 75% should thus provide greater health protection from such afflictions to children on the reservation and in the surrounding communities. In short, the environmental health or safety risks addressed by this action do not present a disproportionate risk to children. In fact, they are expected to have a positive rather than a negative impact on children’s health and the environment. H. Executive Order 13211: Actions That Significantly Effect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health environmental effects of its programs, policies, and activities on minorities and low-income populations. The EPA believes that the redesignation of FCP Community lands 7 PM—Chief Causes for Concern (30 September 2003) (available at http://www.epa.gov/air/ urbanair/pm/chf.html) 8 Information on Particulate Matter (FINE) PM. Condensed from Health and Environmental Effects of Particulate Matter; U.S. EPA Office of Air Quality Planning and Standards (July 1997). (available on http://www.air.dnr.state.ga.us/information/ pm25.html) PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 in a FIP from Class II to Class I area should not raise any environmental justice issues since it will reduce the allowable increase of various types of pollutants. Consequently, this redesignation should result in health benefits to tribal members and members of the surrounding communities. Therefore, we believe that these regulations would not have a disproportionate adverse effect on the health or safety of minority or low income populations. J. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law No. 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. VII. Statutory Authority The statutory authority for this proposed action is provided by sections 110, 301 and 164 of the CAA as amended (42 U.S.C. 7410, 7601, and 7474) and 40 CFR Part 52. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides. Dated: December 11, 2006. Stephen L. Johnson, Administrator. For the reasons cited in this action, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. E:\FR\FM\18DEP1.SGM 18DEP1 Federal Register / Vol. 71, No. 242 / Monday, December 18, 2006 / Proposed Rules 2. Section 52.2581 is amended by revising paragraph (e) and by adding paragraph (f) to read as follows: § 52.2581 quality. Significant deterioration of air jlentini on PROD1PC65 with PROPOSAL * * * * * (e) Regulations for the prevention of the significant deterioration of air quality. The provisions of § 52.21(b) through (w) are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA, except as specified in paragraph (f) of this section. (f) Forest County Potawatomi Community reservation lands 80 acres and over in size and located in Forest County are designated as a Class I area for the purposes of prevention of significant deterioration of air quality. The individual parcels listed below all consist of a description from the Fourth Principal Meridian, with a baseline that is the Illinois-Wisconsin border: (1) Section 14 of Township 36 north (T36N), range 13 east (R13E). (2) Section 26 of T36N R13E. (3) The west half (W1⁄2) of the east half (E1⁄2) of Section 27 of T36N R13E. (4) E1⁄2 of SW1⁄4 of Section 27 of T36N R13E. (5) N1⁄2 of N1⁄2 of Section 34 of T36N R13E. (6) S1⁄2 of NW1⁄4 of Section 35 of T36N R13E. (7) Section 36 of T36N R13E. (8) Section 2 of T36N R13E. (9) W1⁄2 of Section 2 of T34N R15E. (10) Section 10 of T34N R15E. (11) S1⁄2 of NW1⁄4 of Section 16 of T34N R15E. (12) N1⁄2 of SE1⁄4 of Section 20 of T34N R15E. (13) NW1⁄4 of Section 28 of T34N R15E. (14) W1⁄2 of NE1⁄4 of Section 28 of T34N R15E. (15) W1⁄2 of SW1⁄4 of Section 28 of T34N R15E. (16) W1⁄2 of NE1⁄4 of Section 30 of T34N R15E. (17) SW1⁄4 of Section 2 of T34N R16E. (18) W1⁄2 of NE1⁄4 of Section 12 of T34N R16E. (19) SE1⁄4 of Section 12 of T34N R16E. (20) E1⁄2 of SW1⁄4 of Section 12 of T34N R16E. (21) N1⁄2 of Section 14 of T34N R16E. (22) SE1⁄4 of Section 14 of T34N R16E. (23) E1⁄2 of Section 16 of T34N R16E. (24) NE1⁄4 of Section 20 of T34N R16E. (25) NE1⁄4 of Section 24 of T34N R16E. (26) N1⁄2 of Section 22 of T35N R16E. (27) SE1⁄4 of Section 22 of T35N R16E. (28) N1⁄2 of SW1⁄4 of Section 24 of T35N R15E. VerDate Aug<31>2005 16:14 Dec 15, 2006 Jkt 211001 (29) NW1⁄4 of Section 26 of T35N R15E. (30) E1⁄2 of Section 28 of T35N R15E. (31) E1⁄2 of NW1⁄4 of Section 28 of T35N R15E. (32) SW1⁄4 of Section 32 of T35N R15E. (33) E1⁄2 of NW1⁄4 of Section 32 of T35N R15E. (34) W1⁄2 of NE1⁄4 of Section 32 of T35N R15E. (35) NW1⁄4 of Section 34 of T35N R15E. (36) N1⁄2 of SW1⁄4 of Section 34 of T35N R15E. (37) W1⁄2 of NE1⁄4 of Section 34 of T35N R15E. (38) E1⁄2 of Section 36 of T35N R15E. (39) SW1⁄4 of Section 36 of T35N R15E. (40) S1⁄2 of NW1⁄4 of Section 36 of T35N R15E. (41) S1⁄2 of Section 24 of T35N R16E. (42) N1⁄2 of Section 26 of T35N R16E. (43) SW1⁄4 of Section 26 of T35N R16E. (44) W1⁄2 of SE1⁄4 of Section 26 of T35N R16E. (45) E1⁄2 of SW1⁄4 of Section 30 of T35N R16E. (46) W1⁄2 of SE1⁄4 of Section 30 of T35N R16E. (47) N1⁄2 of Section 34 of T35N R16E. [FR Doc. E6–21523 Filed 12–15–06; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA–HQ–OPPT–2006–0795; FRL–8102–3] RIN 2070–AJ31 2,3,5,6-Tetrachloro-2,5Cyclohexadiene-1,4-Dione; Proposed Significant New Use of a Chemical Substance; Reopening of Comment Period Environmental Protection Agency (EPA). ACTION: Proposed rule; reopening of comment period. AGENCY: SUMMARY: EPA is reopening the public comment period for a proposed significant new use rule (SNUR) published in the Federal Register of May 12, 1993 (58 FR 27980) for the chemical chloranil (2,3,5,6-tetrachloro2,5-cyclohexadiene-1,4-dione). EPA is planning to complete this rulemaking by issuing a final rule. Given the long period of time which has passed since EPA issued the proposed rule, EPA is reopening the comment period. This will provide an opportunity for PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 75703 commenters to update their comments and for additional commenters to contribute to the docket before EPA develops a final rule. DATES: Comments must be received on or before January 17, 2007. ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2006–0795, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the on-line instructions for submitting comments. • Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460– 0001. • Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA–HQ–OPPT–2006–0795. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564–8930. Such deliveries are only accepted during the DCO’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to docket ID number EPA–HQ–OPPT– 2006–0795. EPA’s policy is that all comments received will be included in the public docket without change and may be made available on-line at http:// www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or email. The regulations.gov website is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. E:\FR\FM\18DEP1.SGM 18DEP1

Agencies

[Federal Register Volume 71, Number 242 (Monday, December 18, 2006)]
[Proposed Rules]
[Pages 75694-75703]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21523]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2004-WI-0002; FRL-8258-1]


Federal Implementation Plan Under the Clean Air Act for Certain 
Trust Lands of the Forest County Potawatomi Community Reservation if 
Designated as a PSD Class I Area; State of Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On June 29, 1995, and July 10, 1997, EPA proposed to approve a 
request by the Forest County Potawatomi Community (FCP Community) to 
redesignate certain trust lands within its reservation as Class I with 
respect to the Clean Air Act (CAA) Prevention of Significant 
Deterioration (PSD) construction permit program. In these proposals, 
EPA did not explicitly state the mechanism it would use if it granted 
the redesignation request nor did the Agency include a draft of its 
codification. In this action, EPA is proposing that it will promulgate 
a Federal Implementation Plan (FIP) if it approves FCP Community's 
request and

[[Page 75695]]

this action proposes potential codification language. This FIP will be 
implemented by EPA unless or until it is replaced by a Tribal 
Implementation Plan (TIP).

DATES: Comments. Comments must be received on or before January 17, 
2007.
    Public Hearing. The EPA intends to hold two public hearings on this 
proposed action, one on the Forest County Potawatomi Reservation and 
one in the nearby community. The dates, times, and location of these 
public hearings will be announced shortly in a separate Federal 
Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2004-WI-0002 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: a-and-r-docket@epamail.epa.gov.
     Fax: 202-566-1741.
     Mail: Attention Docket ID No. EPA-R05-OAR-2004-WI-0002, 
U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 
Pennsylvania Avenue, NW., Mail Code 6102T, Washington, DC 20460. Please 
include a total of 2 copies.
     Hand Delivery: U.S. Environmental Protection Agency, EPA 
West (Air Docket), 1301 Constitution Avenue, Northwest, Room 3334, 
Washington, DC 20004, Attention Docket ID No. EPA-R05-OAR-2004-WI-0002. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2004-WI-0002. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The www.regulations.gov Web site is an anonymous access system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
instructions on submitting comments, go to section I.B of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Air Docket, EPA/DC, EPA West, Room 3334, 1301 
Constitution Avenue, Northwest, Washington, DC. The Public Reading Room 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: For technical information, contact 
Constantine Blathras, Air and Radiation Division, U.S. EPA, Region 5 
(AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604-3507, 
telephone number: (312) 886-6071, facsimile number: (312) 886-5824, 
electronic mail address: blathras.constantine@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    This action if finally promulgated will apply to applicants to the 
Prevention of Significant Deterioration (PSD) construction permit 
program on Class I trust lands of the Forest County Potawatomi 
Community (FCP Community).

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit information that you consider to 
be CBI electronically through www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information in a disk or CD-ROM that you mail to EPA, mark the 
outside of the disk or CD-ROM as CBI and then identify electronically 
within the disk or CD-ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2. Also, send an 
additional copy clearly marked as above not only to the Air docket but 
to: Roberto Morales, c/o OAQPS Document Control Officer, (C339-03), 
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, 
Attention Docket ID No. EPA-R05-OAR-2004-WI-0002.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

    In addition to being available electronically in 
www.regulations.gov, electronic copies of the docket are also available 
at the following repositories: Crandon Public Library, Attention: Tina 
Inger, Director, 110 West Polk Street, Crandon, Wisconsin 54520; 
Rhinelander District Library, Attention: Kris Adams Wendt, Director, 
106 North Stevens Street Rhinelander, Wisconsin 54501; and the Forest 
County Potawatomi

[[Page 75696]]

Natural Resource Department, Attention: Daniele Dusold, Wensaut Lane, 
Crandon, Wisconsin 54520.

D. How Can I Find Information About a Possible Public Hearing?

    The EPA intends to hold two public hearings on this action, one on 
the Forest County Potawatomi Reservation and one off-reservation. The 
dates, times, and location of these public hearings will be announced 
shortly in a separate Federal Register notice. Persons interested in 
attending the public hearing should contact Mr. J. Elmer Bortzer, Air 
and Radiation Division, U.S. EPA, Region 5 (AR-18J), 77 West Jackson 
Boulevard, Chicago, Illinois 60604-3507, telephone number: (312) 886-
1430, facsimile number: (312) 886-5824, e-mail address: 
bortzer.jay@epa.gov to verify the time, date, and location of the 
hearing. The public hearing will provide interested parties the 
opportunity to present data, views, or arguments concerning these 
proposed changes.

E. Overview of the Rule

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
     B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Get a Copy of This Document and Other Related 
Information?
    D. How Can I Find Information About a Possible Hearing?
    E. Overview of Rule
II. Purpose
III. Background
    A. The FCP Community Request for Redesignation to Class I. Brief 
Summary of Past Comments
    B. The CAA's PSD Program in Indian Country
IV. Tribal Implementation Plans and Federal Implementation Plans
V. The Federal Implementation Plan for the FCP Community's Class I 
Area
    A. Current Codification of the PSD Program in Wisconsin and the 
FCP Community Lands
    B. Proposed Codification for an FCP Community Class I 
Redesignation
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5 
U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    J. National Technology Transfer Advancement Act
VII. Statutory Authority

II. Purpose

    In this action, EPA is proposing to codify the Class I resignations 
in a Federal Implementation Plan (FIP) if the Agency approves the FCP 
Communty's redesignation request; this notice also proposes potential 
codification language. The EPA solicits comments on today's proposal as 
to whether a FIP is the appropriate mechanism with which to codify the 
FCP Community's redesignation of their lands to Class I, if approved, 
the proposed codification, and any related procedural issues. Although 
EPA strongly encourages commenters to focus on these issues, comments 
on other aspects of the redesignation request will also be accepted. 
Interested parties should submit comments as detailed in the ADDRESSES 
section of this proposed rule.

III. Background

A. The FCP Community Request for Redesignation to Class I

    On February 14, 1995, the FCP Community submitted a formal request 
to EPA to redesignate certain trust lands within their reservation to 
Class I under the CAA PSD construction permit program. On June 29, 1995 
(60 FR 33779), and July 10, 1997 (62 FR 37007), EPA proposed to approve 
the request. In addition, in 1997 EPA also held public hearings on the 
redesignation request.
    Both Wisconsin and Michigan objected to the proposed redesignation 
and requested dispute resolution under Section 164(e) of the CAA. To 
resolve the dispute with the State of Wisconsin, the FCP Community and 
Wisconsin entered into a Memorandum of Agreement (FCP Community-
Wisconsin MOA) for implementation of the proposed Class I area in 
Wisconsin. For those provisions of the agreement, and any other aspects 
of the dispute resolution that will need to be made federally 
enforceable, EPA will codify them as appropriate should it determine to 
grant the redesignation request. For example, the agreement's 
limitation of certain increment analyses to a ten mile radius may need 
to be codified in federally enforceable regulations.
    Specifically, the agreement between the FCP Community and Wisconsin 
subjects all major sources in Wisconsin located within a ten (10) mile 
radius of any redesignated Tribal land to performing an increment 
analysis and to meeting consumption requirements applicable to a class 
I area. Major sources located outside of ten (10) miles are subject to 
increment analysis and consumption requirements applicable to any 
redesignated Tribal land as if it were a class II area. Also under the 
agreement, all major sources within sixty-two (62) miles are subject to 
an analysis of their impact on air quality related values (AQRVs) of 
the redesignated Tribal lands to determine if they will have an adverse 
impact on these AQRVs.
    The Agency believes that the Tribe and Wisconsin may enter into 
such an agreement. When the dispute resolution process in section 
164(e) is invoked by an affected state or tribe, EPA is called upon to 
participate in that process and to recommend a resolution, if requested 
by the parties, or to finally resolve the dispute, if the parties are 
unable to reach agreement. However, where the parties successfully 
reach agreement through the dispute resolution process, EPA is inclined 
to read section 164(e) of the CAA to provide that EPA has no further 
role to play in the dispute resolution process. The EPA is not required 
to review or approve the terms of the agreement, and the Agency is 
inclined to respect agreements that obviate the need for the 
Administrator to make a decision resolving the matter. If the parties 
to the dispute reach an agreement through the 164(e) process without 
EPA resolution, EPA proposes not to interfere with the agreement and to 
rest its final decision to approve or deny the redesignation on the 
criteria in 164(b)(2) of the CAA.
    In commenting on the proposed codification, commenters may wish to 
comment on the potential need to codify certain provisions of the 
agreement or aspects of the dispute resolution as well. The FCP 
Community-Wisconsin MOA, together with related materials, is available 
in the docket for this proposal. The FCP Community and the State of 
Michigan have not been able to resolve their differences. The EPA 
anticipates acting on the FCP Community request and remaining aspects 
of the dispute resolution process with the States after the close of 
the public comment period on today's proposal.
Brief Summary of Past Comments
    During the initial comment period and public hearings, EPA received 
several comments on the proposed redesignation. The Agency will respond 
to all significant comments in the final rule resolving the 
redesignation request,

[[Page 75697]]

but includes a brief discussion and response to two of those comments.
    First, several commenters argued that the request for redesignation 
should be denied either because the FCP Community identified certain 
air quality related values (``AQRVs'') after submitting their initial 
request or that the lands proposed for redesignation were not of 
sufficient size or quality to possess AQRVs. However, neither Section 
164(b) of the CAA nor EPA's implementing regulations governing 
redesignation require a State or Tribe requesting a redesignation to 
demonstrate or establish that the affected lands have AQRVs, and 
Congress did not make AQRVs a prerequisite for redesignation of non-
federal Class I areas. It is therefore unnecessary for EPA to determine 
what AQRVs the lands at issue might possess in order for the Agency to 
act on, including granting, the redesignation request. See 61 FR 56450, 
56458-56459 (Nov. 1, 1996) (redesignation of Yavapai-Apache lands).
    A second area of significant comment alleged that the areas 
proposed for redesignation were either too small or too dispersed to 
allow for effective air quality management as discussed in sections 162 
and 164 of the CAA. Section 162 of the Act designates certain areas as 
mandatory Class I areas. The Act also provides for non-federal Class I 
areas, and Section 164(c) specifically states that ``Lands within the 
exterior boundaries of reservations of federally recognized Indian 
tribes may be redesignated,'' but does not speak to what size lands 
might be appropriate for a redesignation to Class I. In disputes 
resolving area redesignation, section 164(e) requires EPA to consider 
(the extent to which the lands involved are of sufficient size to allow 
effective air quality management.'' In its decision to grant the Class 
I redesignation request for the Yavapai-Apache reservation, (which is 
similar to the FCP reservation in that it consists of a number of 
relatively small, discrete parcels of land), EPA examined whether it 
would be difficult to perform a PSD air quality modeling analysis that 
assessed the impacts of a proposed source in such a situation. The EPA 
concluded that based on existing modeling tools it would be relatively 
simple and practicable for a proposed source to project its impact on 
the Class I area parcels and evaluate the analysis. See 61 Fed. Reg. at 
56457-56458. Consideration of the size of the redesignated lands, 
therefore, can be evaluated based upon the Agency's experience in the 
Yavapai-Apache redesignation. We solicit comment on the two issues 
presented above and EPA's response to them.

B. The CAA's PSD Program in Indian Country

    The CAA gives EPA broad authority to protect air resources 
throughout the nation, including the resources on Indian reservations 
and other areas of Indian country. Part C of the CAA lays out the PSD 
construction permit program. It is based on the concept that new 
sources and modifications of existing sources in relatively pollution 
free lands, i.e., lands attaining the National Ambient Air Quality 
Standards (NAAQS), should not be allowed to increase emissions such 
that ambient pollutant levels rise to the level of the NAAQS. Instead, 
these sources' emissions are limited such that ambient levels cannot 
exceed the pollutant specific increments in the CAA or EPA regulations. 
The CAA provides three levels of increments for each pollutant, Class I 
which is the most stringent, Class II, which is what most of the United 
States was initially designated by the CAA, and Class III, which is the 
least stringent. Section 164 affords states and tribes the right to 
request that EPA redesignate lands under their control. Historically 
only tribes have made such requests, and in all these cases, the tribes 
requested redesignation from Class II to Class I. The FCP Community, 
likewise, requested that EPA redesignate certain of their lands from 
Class II to Class I. Under the CAA, generally EPA must approve this 
request if all procedural requirements are met.
    One of the tribes that requested redesignation from Class II to 
Class I before FCP Community was the Yavapai Apache Tribe, and on 
October 2, 1996 EPA approved the request. The State of Arizona, within 
which the Yavapai Apache lands were located, had raised objections to 
the redesignation and requested to enter into Section 164(e) dispute 
negotiations with the Yavapai Apache. The EPA held a meeting with the 
parties, but ultimately no agreement was reached. The EPA was forced to 
resolve the dispute, and did so by granting the redesignation request 
and codifying the redesignation in a FIP. 61 FR 56461 (November 1, 
1996) and 61 FR 56450 (November 1, 1996). The State of Arizona 
continued to dispute the approval of the reservation to Class I and 
filed a suit before the United States Court of Appeals for the Ninth 
Circuit. See, Administrator, State of Arizona v. EPA, 151 F.3d 1205 
(9th Cir. 1998). The Ninth Circuit's decision stated, among other 
things, that EPA should have codified the Class I area in a TIP rather 
than a FIP, and remanded the redesignation back to the EPA regional 
office so that EPA could follow the appropriate procedures for 
promulgating the Class I area as a TIP.
    On February 12, 1998, however, EPA promulgated a final rule under 
section 301 of the CAA entitled ``Indian Tribes: Air Quality Planning 
and Management.'' 63 FR 7254 (Feb. 12, 1998). This rule, generally 
referred to as the ``Tribal Authority Rule'' or ``TAR,'' discusses 
those provisions of the CAA for which it is appropriate to treat Indian 
tribes in the same manner as states and establishes the requirements 
that Indian tribes must meet if they choose to seek such treatment. The 
EPA also concluded that certain provisions of the CAA should not be 
applied to tribes in exactly the same manner in which they were applied 
to states. One of those provisions was CAA 110(c)(1), which provides 
the Administrator with the authority to promulgate a FIP within 2 years 
of finding that a State plan is insufficient. 63 FR at 7265. EPA 
reasoned that tribes, unlike states, ``in general are in the early 
stages of developing air planning and implementation expertise'' 
because the specific authority for tribes to establish air programs was 
first expressly addressed in 1990. Id. at 7264-7265. Because tribes 
were only recent participants in the process, EPA determined it would 
be inappropriate to hold them to the same deadlines and Federal 
oversight as the states. Id. at 7265.
    The EPA noted, though, that it was ``not relieved of its general 
obligation under the CAA to ensure the protection of air quality 
throughout the nation, including throughout Indian country.'' Id. The 
EPA concluded that the Agency could ``act to protect the air quality 
pursuant to its `gap-filling' authority under the CAA as a whole'' and 
that ``section 301(d)(4) provides EPA with discretionary authority, in 
cases where it has determined that treatment of tribes as identical to 
states is `inappropriate or administratively infeasible,' to provide 
for direct administration through other regulatory means.'' Id. Under 
that authority, EPA adopted 40 CFR 49.11, which set the standard for 
adoption of FIP provisions for Indian Country: ``[The Administrator] 
[s]hall promulgate without unreasonable delay such Federal 
implementation plan provisions as are necessary or appropriate to 
protect air quality, consistent with the provisions of section 304(a) 
(sic 301(a)) and 301(d)(4), if a tribe does not submit a tribal 
implementation plan meeting the completeness criteria of 40 CFR part 
51, Appendix V, or does not receive

[[Page 75698]]

EPA approval of a submitted tribal implementation plan.'' 40 CFR 
49.11(a). The intent of this provision was to recognize that tribes may 
not initially have the capability to implement their own delegated CAA 
programs and that the TAR does not relieve EPA of its general 
obligation under the CAA to protect air quality throughout the nation, 
including in Indian country. See 63 FR 7265.
    Therefore, the TAR established two possible routes for the 
codification of a Class I redesignation on Tribal lands: (1) A TIP, if 
one has been developed by the Tribe and approved by EPA; and (2) A FIP, 
if a TIP did not exist and a FIP was necessary to protect air quality.

IV. Tribal Implementation Plans and Federal Implementation Plans

    Consistent with the approach detailed in the TAR, U.S. EPA Region 5 
sent a letter to the FCP Community requesting that the Tribe specify 
what mechanism they wished to use to codify the proposed redesignation 
to Class I. On August 4, 1999, Harold Frank, Chairman, Forest County 
Potawatomi Community, sent a letter to Francis X. Lyons, Regional 
Administrator of EPA Region 5, requesting that EPA promulgate the 
redesignation of the proposed Class I area parcels in a FIP. The FCP 
asked EPA to promulgate the Class I area redesignation into a FIP, as 
opposed to utilizing a TIP, because the FCP Community was continuing to 
build its capacity and infrastructure to run a Tribal Air Program and 
was not yet ready to submit its own TIP. On August 23, 1999, EPA sent a 
letter to the FCP Community agreeing to their request for the Class I 
redesignation being promulgated in a FIP, should EPA's rulemaking 
result in the approval of the FCP Community's request.
    Until such time as the FCP Community develops a TIP and has it 
approved, EPA retains the authority to promulgate the redesignation 
approval in a FIP. Because the FCP Community's request and EPA's 
original proposal pre-dated the TAR, neither clearly specified the 
manner in which the redesignation would be codified. The EPA has, 
therefore, published this supplemental proposal to seek comment on the 
codification of the FCP Community redesignation, if approved, in a FIP.

V. The Federal Implementation Plan for the FCP Community's Class I Area

A. Current Codification of the PSD Program in Wisconsin and the FCP 
Community Lands

    On August 7, 1980, EPA promulgated the Federal PSD Program 
regulations which are codified at 40 CFR 52.21, and which applied to 
those states that had not submitted a PSD program meeting the 
requirements of 40 CFR 51.166. 45 FR 52741 (August 7, 1980), as amended 
at 46 FR 9585 (January 29, 1981). Wisconsin was one such state, and as 
a result, Wisconsin initially implemented the Federal PSD program under 
a delegation of authority from EPA. Wisconsin subsequently submitted a 
PSD rule and program which EPA approved for all sources in Wisconsin 
except for sources located on tribal lands and other sources that 
require permits issued by the EPA. See 64 FR 28748 (May 27, 1999). The 
current EPA regulation addressing the PSD program in Wisconsin reads as 
follows:

40 CFR 52.2581. Significant deterioration of air quality.

    (a)-(c) [Reserved]
    (d) The requirements of sections 160 through 165 of the Act are 
met, except for sources seeking permits to locate in Indian country 
within the State of Wisconsin; and sources with permits issued by 
EPA prior to the effective date of the state's rules.
    (e) Regulations for the prevention of the significant 
deterioration of air quality. The provisions of Sec.  52.21(b) 
through (w) are hereby incorporated and made a part of the 
applicable State plan for the State of Wisconsin for sources wishing 
to locate in Indian country; and sources constructed under permits 
issued by EPA.

B. Proposed Codification for an FCP Community Class I Redesignation

    Under the authority of section 307(d) of the Act, EPA is proposing 
to revise its regulation as reflected below if EPA approves the FCP 
Community request to designate some of its reservation as Class I. In 
today's action, EPA is proposing that it will promulgate the 
resignation in a FIP if EPA approves the FCP Community's request for 
redesignation of certain lands within the exterior boundaries of the 
Tribe's reservation. This FIP will be implemented by EPA unless or 
until it is replaced by a Tribal Implementation Plan (TIP). The 
proposed codification language follows Section VII below.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.
    The FCP Community prepared an analysis of the potential costs and 
benefits associated with this action. This analysis is contained in 
``EPA memorandum dated October 25, 2004''. A copy of the analysis is 
available in the docket for this action and is briefly summarized here.
    As part of its application package for Class I redesignation, the 
FCP Community has analyzed the potential economic impact of 
redesignation on the affected region (Forest County and those counties 
bordering Forest County). This analysis directly supports a finding 
that the impact of the proposed redesignation would not result in an 
adverse annual impact to the economy of $100 million or more.
    As discussed in greater detail in the memorandum, the FCP Community 
analysis identifies those economic sectors with the largest employment 
in the area. These are industry, manufacturing and trade, which 
together account for 46% of the jobs in the affected area. To evaluate 
the effect of Class I redesignation on economic expansion and future 
industrial plant development in the affected area, the FCP Community 
prepared an independent air dispersion modeling analysis to determine 
the air quality impacts on the Class I area from various new projects. 
These included a 250-ton-per-day paper mill, three different types of 
power plants, and a mining project.
    The modeling and screening results analyzed indicate that the 
proposed Class I redesignation should not have major effects on 
economic expansion and industrial development in the region. The 
redesignation could restrict the sitting of large paper mills and large 
coal-fired powered plants to at least 10 km from the reservation, and 
would limit the development of multiple projects that would have an 
unacceptable cumulative effect on the Class I increments, but none of 
these known proposed developments in the region would be adversely 
affected.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
We are not promulgating any new paperwork requirements (e.g., 
monitoring, reporting, recordkeeping) as part of this proposed action. 
The Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations (40 CFR parts 51 and 52) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0003, EPA ICR

[[Page 75699]]

number 1230.17.\1\ A copy of the OMB approved Information Collection 
Request (ICR) may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Avenue, NW, Washington, DC 20460 or by calling (202) 566-
1672.
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    \1\ The regulations covered under this ICR govern the State and 
Federal programs for preconstruction review and permitting of major 
new and modified sources pursuant to Part C ``Prevention of 
Significant Deterioration'' (PSD) and Part D ``Program Requirements 
for Nonattainment Areas'' of the CAA. The types of information 
collection activities addressed in this ICR are those necessary for 
the preparation and submittal of construction permit applications 
and the issuance of final permits.
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    This analysis included an examination of the additional regulatory 
burden, per regulated unit, on those sources constructing or modifying 
near a Class I area, and which may be required to perform a Federal 
Class I area analysis to determine the effect of the proposed source on 
AQRV inside the Class I area, and on the consumption of increment, 
where the baseline has been triggered. It is important to note that not 
all sources located near Class I areas would have to perform such 
monitoring; these requirements apply only when emissions from the 
source have the potential to impact the Class I area.
    The EPA's analysis for OMB included the additional burden placed 
upon the regulated community as well as on State and Federal agencies. 
The redesignation of FCP Community lands from Class II to Class I is 
wholly consistent with the analysis put forth in EPA's ICR and OMB's 
approval and no new paperwork requirements are being promulgated with 
this action.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this proposed action on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise that is independently owned and operated and 
is not dominant in its field. This action does not require a regulatory 
flexibility analysis because it will not have a significant economic 
impact on a substantial number of small entities.
    The EPA believes that the reclassification of the proposed area to 
Class I will impose virtually no additional requirements on small 
entities, regardless of whether they are minor sources or major 
sources. For small entities that are also minor sources, since at the 
present time the baseline concentrations for this area have not been 
triggered and none of the Class I increments have yet been consumed, 
minor emission sources are unaffected by PSD requirements. Should the 
Class I increments be completely consumed in the future, it is possible 
that some pollution control requirements would fall to minor sources. 
However, any such future pollution control requirements imposed on off-
reservation sources would be under the jurisdiction of the states, not 
EPA. Therefore, EPA is not in a present or future position to directly 
regulate small entities and therefore is not required to conduct an RFA 
analysis.
    For small entities that are major sources, the impact is not 
expected to be substantial. As demonstrated in section VI.A. above, the 
requirements for demonstrating compliance with the NAAQS and PSD 
increments for major facilities in and surrounding Class I areas are 
similar to the requirements for major facilities in and surrounding 
Class II areas. Therefore, this action will not have a significant 
impact on a substantial number of small entities.
    While EPA is not required to conduct an RFA analysis, as a matter 
of good public policy, the Agency has reviewed information on the 
impact of the redesignation provided by the FCP Community in its 
Technical Support Document (TSD) submitted pursuant to the tribe's 
request for Class I redesignation. In this document, the Tribe reviewed 
the potential impact of the Class I redesignation on various types of 
sources, concluding that impacts of the redesignation to Class I would 
impact only certain major stationary sources, and would impose no 
additional requirements on minor sources.\2\
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    \2\ The EPA has prepared an ICR analysis for the NSR program 
generally, finding that ``Approximately 2,200 'small business'' 
major sources were estimated to exist; however, only 50 small 
business facilities employing 500 persons or fewer were projected to 
be subject to NSR annually. Based on the methodology incorporated in 
that rulemaking Regulatory Impact Analysis, the Agency concluded 
that the current part 51 and 52 NSR regulations do not constitute a 
disproportionate burden on small entities.'' U.S. EPA, ``Information 
Collection Request for 40 CFR Part 51 and 52 Prevention of 
Significant Deterioration and Nonattainment New Source Review, 
October 12, 2004, at 13.''
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    For example, air dispersion modeling and EPA-approved screening 
performed for the Tribe's TSD demonstrates that a 140 MW natural gas 
fired combustion turbine power plant could be constructed and operated 
directly adjacent to the reservation without violating any of the Class 
I increments. Power plants of this type produce relatively high levels 
of nitrogen oxides (NOX), which are their major emissions, 
yet despite its direct proximity to a Class I area, such a facility 
would impact only a small fraction (~4%) of the allowable Class I 
increment for NOX. Considering that the FCP Community 
analysis shows that a major gas-fired power generating facility could 
be operated immediately next to the reservation without significant 
impacts, and that only very large industrial projects located within 
approximately 10 km of the reservation would be affected by the 
redesignation, it appears very unlikely that any small businesses 
located within 100 kilometers would produce emissions in large enough 
quantities to trigger the Class I restrictions.
    Nevertheless, it is possible that a small business located close 
enough to the reservation may be a major source of criteria air 
pollutants. Even in that

[[Page 75700]]

event, the PSD requirements for Class I areas would be very unlikely to 
impose a significant financial burden on such a small business. If it 
is an existing business at the time the redesignation goes into effect, 
it would not be subject to the PSD permitting requirements, which apply 
only to new stationary sources or major modifications to existing 
sources.
    Even if the small business in question was new to the Class I area, 
hence subject to PSD permitting, the redesignation would still not 
impose additional significant financial or regulatory burdens on the 
small entity. As a major source of criteria air pollutants, the small 
business would be subject to PSD permitting regulations whether the 
reservation had been redesignated to Class I or had remained a Class II 
area, as it is now. Major stationary sources proposing to locate in any 
PSD area, regardless of whether it is Class II or Class I, must still 
conduct the same type of analyses to measure the impact of their 
emissions on the allowable increments and use the best available 
control technology to reduce their emissions and minimize adverse 
effects.
    Should the area remain Class II, the major source would still be 
required to perform a modeling analysis to ensure that the Class II 
increments are protected in order to obtain a permit. Since a modeling 
analysis is required in any case, the cost of adding additional 
receptor points, if needed, to the modeling analysis to gather the 
necessary data to ensure that the Class I increments will also be 
protected should be relatively small. Likewise, since every major 
stationary source proposing to locate in a PSD area, whether it has 
been designated as Class I or Class II, must employ ``best available 
control technology'' to reduce emissions, proximity to a Class I area 
generally would not affect the level of control required to meet BACT. 
In short, regardless of whether they are in a Class II or a Class I 
area, major sources are required to obtain an air quality permit, 
conduct modeling analyses, and use the best available technology to 
control emissions under the PSD program. Thus, as a general rule, 
redesignation should not inflict additional control costs on a source.
    Under certain circumstances a major source may be required to 
achieve further decreases in emissions to reduce its impact on the air 
quality related values of a Class I area. Such a requirement would 
necessitate further regulatory action by either the FCP Community or 
EPA, however, and the impacts of the specific requirements can be 
appropriately assessed at that time. Additionally, it would be very 
unusual for a small business to also be a major source and a 
substantial number of small entities should certainly not be so 
affected.
    Several other Indian tribes have redesignated tribal lands to Class 
I in other parts of the country, and their experience can provide us 
with some insight into the impact redesignation typically has on small 
entities in the vicinity. These include the Northern Cheyenne Tribe, 
Montana; Flathead Indian Reservation, Montana; Fort Peck Indian 
Reservation, Montana and the Spokane Indian Reservation, Washington, 
which were redesignated as Class I areas between 1977 and 1990. Thus 
far, there has been very little economic impact on small businesses, 
nearby towns, local governments or other small entities following Class 
I redesignation in those areas. The EPA has no reason to believe that 
same pattern of minimal economic impact to small businesses will not be 
repeated in Forest County and the surrounding counties.
    Small entities that are minor sources of air pollution will not be 
affected at all by this action at this time. The PSD permit program 
does not cover minor sources and, as previously discussed, EPA does not 
directly regulate minor entities. The reclassification of the proposed 
area to Class I therefore imposes virtually no additional requirements 
on small entities since the baseline concentration level for Forest 
County has not yet been triggered and none of the PSD increments in the 
area have yet been consumed. The baseline concentration is the 
conceptual reference point or ''starting'' point for determining air 
quality deterioration in an area subject to the PSD program. Thus, the 
baseline concentration is essentially the ambient air quality existing 
at the time the first complete PSD application is made for a major new 
source affecting a PSD baseline area. Since no PSD permit application 
triggering a baseline date has been submitted in the Forest County 
area, there has not been any consumption of the PSD increments in the 
area. Should major and minor sources of pollution consume all of the 
available increment in an area at some point in the future, it is 
possible that some pollution control requirements would then fall to 
minor sources, but since roughly 75% of the land in Forest County is 
National Forest, and there is presently very little industrial 
development in the area, there is likely to be little consumption of 
the Class I increments for some time to come.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities that 
are not major sources because this action affects only major stationary 
sources, as defined by 40 CFR 52.21.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives, and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100

[[Page 75701]]

million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. The redesignation 
would not impose significant additional financial or regulatory burdens 
on a new or modified source subject to the PSD permitting requirements. 
As a major source of criteria air pollutants, a new or modified source 
would be subject to PSD regulations whether the reservation had been 
redesignated to Class I or had remained a Class II area, as it is now. 
New major stationary sources proposing to locate in any PSD area, 
regardless of whether it is Class II or Class I, must still conduct the 
same type of analyses to measure the impact of their emissions on the 
allowable increments and use the best available control technology to 
reduce their emissions and minimize adverse effects. No additional 
permits would be required as a result of a redesignation of FCP 
Community reservation lands. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    The EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because, as already stated in other sections of this 
regulatory package, the redesignation from a Class II to a Class I area 
would not impose additional significant financial or regulatory burdens 
on sources.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism,'' 64 FR 43255) 
(August 10, 1999), requires EPA to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, we may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or we consult 
with State and local officials early in the process of developing the 
proposed regulation. We also may not issue a regulation that has 
federalism implications and that preempts State law, unless we consult 
with State and local officials early in the process of developing the 
proposed regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule merely implements an 
authority currently available to Indian tribes to redesignate their 
reservation lands under the PSD program of the CAA, and does not alter 
the relationship or the distribution of power and responsibilities 
established in the CAA. Thus, Executive Order 13132 does not apply to 
this rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA did consult with State and local officials in developing this 
rule. A summary of the concerns raised during that consultation and 
EPA's response to those concerns will be provided when EPA issues its 
final rulemaking.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' 65 FR 67249 (November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    The EPA has concluded that this proposed rule establishing federal 
standards will have tribal implications. Thus, consistent with section 
3 of the Executive Order, in the process of developing this proposal, 
EPA consulted with FCP tribal officials to permit them to have 
meaningful and timely input into its development. EPA consulted with 
representatives of the FCP Community prior to their submission of the 
redesignation request. During this consultation, EPA explained the 
function of the CAA's redesignation provision, differences between 
Class I and Class II designations, and alternatives to the proposed 
Class I redesignation. The FCP Community chose to submit a request for 
redesignation to Class I on February 14, 1995. Since the FCP Community 
submitted its request for redesignation, EPA has kept the FCP Community 
informed of its process for completing the rulemaking through written 
correspondence, conference calls, and face to face meetings when 
appropriate. Records of these communications are found in the docket 
for this proposed action. Most recently, EPA officials held 
consultations with the FCP Community between May and July 2006 to 
discuss this proposed action and to answer the Community's questions.
    Finally, because the proposed action will neither impose 
substantial direct compliance costs on tribal governments nor preempt 
Tribal law, section 5 of Executive Order 13175 is not applicable. Class 
I redesignation will enable the FCP Community to further their goal of 
exercising control over reservation resources to better protect the 
members of their community. Overall, EPA expects that the impact of the 
redesignation to Class I will be positive.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' 62 FR 19885 (April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866; and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because 
EPA published a Notice of Proposed Rulemaking before April 21, 1998. 
Nonetheless, as a matter of EPA Policy, the Agency does not have reason 
to believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children.
    Redesignation of the identified parcels of the FCP reservation to 
Class I status will reduce the allowable increase of various types of 
pollutants. The reduction of these pollutants can only be expected to 
better protect the health of tribal members, members of the surrounding 
communities, and especially children and asthmatics.
    The adverse health effects of exposure to high levels of criteria 
air pollutants such as sulfur dioxide and fine particulate matter are 
well known and

[[Page 75702]]

well documented.\3\ Sulfur dioxide, for example, is known to irritate 
the respiratory system. As explained in the FCP Community's TSD, 
exposure to high concentrations for even short periods can cause 
bronchial constriction and exposure to lower concentrations of sulfur 
dioxide for longer periods and suppresses the respiratory system's 
natural defenses to particles and bacteria.\4\ Children and asthmatics 
are especially vulnerable to the adverse health effects of sulfur 
dioxide.\5\ If the Class I redesignation is codified in a FIP, the 
allowable increase of sulfur dioxide after redesignation of the 
reservation to Class I status (on an annual arithmetic mean basis) will 
be one-tenth of the current Class II allowable increase, thus providing 
greater health protection to children from such air pollutants.
---------------------------------------------------------------------------

    \3\ What are the Six Common Air Pollutants? (March 23, 2004) 
(available at http://www.epa.gov/air/urbanair/6poll.html)
    \4\ SO2--How Sulfur Dioxide Affects the Way We Live & 
Breathe. U.S. EPA Office of Air Quality Planning & Standards 
(November 2000) (available at http://www.epa.gov/air/urbanair/so2/
index.html)
    \5\ Health and Environmental Impacts of SO2 (September 30, 2003) 
(available at http://www.epa.gov/air/urbanair/so2/hlth1.html)
---------------------------------------------------------------------------

    Likewise, the allowable increase in particulate matter after Class 
I redesignation (on an annual basis) will be approximately one-fourth 
of the current Class II increase. Particulate matter consists of 
airborne particles and aerosols ranging in size from less than 1 
micrometer to more than 100 micrometers. Aside from natural sources, 
industrial activity can release great quantities of particulates (dust, 
soot, ash and other solid and liquid particles). Combustion products 
emitted during power generation, heating, motor vehicle use and various 
industrial processes are also classified as particulate matter. The 
vast majority (~99%) of such inhalable particulate matter is trapped in 
the upper respiratory tract, but the remainder enters the windpipe and 
the lungs, clinging to the protective mucosa. The smallest particles 
are deposited in the alveoli and capillaries of the lung, where they 
impair the exchange of oxygen and causes shortness of breath. Children, 
the elderly, and people with pulmonary problems and respiratory 
conditions (e.g., emphysema, bronchitis, asthma, or heart problems) are 
the most susceptible to these debilitating effects.\6\ Adverse health 
effects from particulate matter are often cumulative and progressive, 
worsening as particulates gradually collect in the lungs following 
repeated, long-term exposure.\7\
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    \6\ Health and Environmental Impacts of PM (30 September 2003) 
(available at http://www.epa.gov/air/urbanair/pm/hlth1.html)
    \7\ PM--Chief Causes for Concern (30 September 2003) (available 
at http://www.epa.gov/air/urbanair/pm/chf.html)
---------------------------------------------------------------------------

    Fine particulate matter is the worst offender in that regard. 
Scientific studies have shown that particulate matter, especially fine 
particles (those particles with an aerodynamic diameter of less than 
2.5 micrometers and commonly known as PM2.5), are retained 
deep within the lungs.\8\ Short term exposure to such fine particulate 
matter can cause lung irritation and may impair immune responses. Some 
of the material from the particles can dissolve in the lungs, causing 
cell damage, and the particles themselves may consist of compounds that 
are toxic or which form acids when combined with moisture in the lungs. 
Long-term lower level exposures can cause cancer and other respiratory 
illnesses. Reducing the allowable increase in particulate matter by 
roughly 75% should thus provide greater health protection from such 
afflictions to children on the reservation and in the surrounding 
communities.
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    \8\ Information on Particulate Matter (FINE) PM. Condensed from 
Health and Environmental Effects of Particulate Matter; U.S. EPA 
Office of Air Quality Planning and Standards (July 1997). (available 
on http://www.air.dnr.state.ga.us/information/pm25.html)
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    In short, the environmental health or safety risks addressed by 
this action do not present a disproportionate risk to children. In 
fact, they are expected to have a positive rather than a negative 
impact on children's health and the environment.

H. Executive Order 13211: Actions That Significantly Effect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

I. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health environmental effects of its programs, policies, and activities 
on minorities and low-income populations.
    The EPA believes that the redesignation of FCP Community lands in a 
FIP from Class II to Class I area should not raise any environmental 
justice issues since it will reduce the allowable increase of various 
types of pollutants. Consequently, this redesignation should result in 
health benefits to tribal members and members of the surrounding 
communities. Therefore, we believe that these regulations would not 
have a disproportionate adverse effect on the health or safety of 
minority or low income populations.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

VII. Statutory Authority

    The statutory authority for this proposed action is provided by 
sections 110, 301 and 164 of the CAA as amended (42 U.S.C. 7410, 7601, 
and 7474) and 40 CFR Part 52.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
dioxides.

    Dated: December 11, 2006.
Stephen L. Johnson,
Administrator.
    For the reasons cited in this action, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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


[[Page 75703]]


    2. Section 52.2581 is amended by revising paragraph (e) and by 
adding paragraph (f) to read as follows:


Sec.  52.2581  Significant deterioration of air quality.

* * * * *
    (e) Regulations for the prevention of the significant deterioration 
of air quality. The provisions of Sec.  52.21(b) through (w) are hereby 
incorporated and made a part of the applicable State plan for the State 
of Wisconsin for sources wishing to locate in Indian country; and 
sources constructed under permits issued by EPA, except as specified in 
paragraph (f) of this section.
    (f) Forest County Potawatomi Community reservation lands 80 acres 
and over in size and located in Forest County are designated as a Class 
I area for the purposes of prevention of significant deterioration of 
air quality. The individual parcels listed below all consist of a 
description from the Fourth Principal Meridian, with a baseline that is 
the Illinois-Wisconsin border:
    (1) Section 14 of Township 36 north (T36N), range 13 east (R13E).
    (2) Section 26 of T36N R13E.
    (3) The west half (W\1/2\) of the east half (E\1/2\) of Section 27 
of T36N R13E.
    (4) E\1/2\ of SW\1/4\ of Section 27 of T36N R13E.
    (5) N\1/2\ of N\1/2\ of Section 34 of T36N R13E.
    (6) S\1/2\ of NW\1/4\ of Section 35 of T36N R13E.
    (7) Section 36 of T36N R13E.
    (8) Section 2 of T36N R13E.
    (9) W\1/2\ of Section 2 of T34N R15E.
    (10) Section 10 of T34N R15E.
    (11) S\1/2\ of NW\1/4\ of Section 16 of T34N R15E.
    (12) N\1/2\ of SE\1/4\ of Section 20 of T34N R15E.
    (13) NW\1/4\ of Section 28 of T34N R15E.
    (14) W\1/2\ of NE\1/4\ of Section 28 of T34N R15E.
    (15) W\1/2\ of SW\1/4\ of Section 28 of T34N R15E.
    (16) W\1/2\ of NE\1/4\ of Section 30 of T34N R15E.
    (17) SW\1/4\ of Section 2 of T34N R16E.
    (18) W\1/2\ of NE\1/4\ of Section 12 of T34N R16E.
    (19) SE\1/4\ of Section 12 of T34N R16E.
    (20) E\1/2\ of SW\1/4\ of Section 12 of T34N R16E.
    (21) N\1/2\ of Section 14 of T34N R16E.
    (22) SE\1/4\ of Section 14 of T34N R16E.
    (23) E\1/2\ of Section 16 of T34N R16E.
    (24) NE\1/4\ of Section 20 of T34N R16E.
    (25) NE\1/4\ of Section 24 of T34N R16E.
    (26) N\1/2\ of Section 22