Approval and Promulgation of Air Quality Implementation Plans; Wisconsin; Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area, 23086-23101 [E8-8946]
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Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Rules and Regulations
PART 301—PROCEDURE AND
ADMINISTRATION
Par. 15. The authority for 26 CFR part
301 continues to read in part as follows:
I
Authority: 26 U.S.C. 7805 * * *
Par. 16. In § 301.6402–3, the second
and third sentences of paragraph (e) are
revised and paragraph (f) is added to
read as follows:
I
§ 301.6402–3
income tax.
Special rules applicable to
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(e) * * * Also, if the overpayment of
tax resulted from the withholding of tax
at source under chapter 3 of the Internal
Revenue Code, a copy of the Form
1042–S, ‘‘Foreign Person’s U.S. Source
Income subject to Withholding,’’ Form
8805, ‘‘Foreign Partner’s Information
Statement of Section 1446 Withholding
Tax,’’ or other statement (see § 1.1446–
3(d)(2) of this chapter) required to be
provided to the beneficial owner or
partner pursuant to § 1.1461–1(c)(1)(i) or
§ 1.1446–3(d) of this chapter must be
attached to the return. For purposes of
claiming a refund, the Form 1042–S,
Form 8805, or other statement must
include the taxpayer identification
number of the beneficial owner or
partner even if not otherwise required.
* * *
(f) Effective/Applicability date.
References in paragraph (e) of this
section to Form 8805 or other
statements required under § 1.1446–
3(d)(2) shall apply to partnership
taxable years beginning after April 29,
2008.
I Par. 17. In § 301.6722–1, paragraph
(d)(3) is revised and paragraph (e) is
added to read as follows:
section to Form 8805 shall apply to
partnership taxable years beginning
after April 29, 2008.
PART 602—OMB CONTROL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
Par. 18. The authority citation for part
602 continues to read as follows:
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Authority: 26 U.S.C. 7805 * * *
Par. 19. In § 602.101, paragraph (b) is
amended by removing the entry for
§ 1.1446–6T from the table, adding an
entry for § 1.1446–6, and revising the
entries to the table to read as follows:
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§ 602.101
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OMB Control numbers.
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(b) * * *
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CFR part or section where
identified and described
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1.1446–1
1.1446–3
1.1446–4
1.1446–5
1.1446–6
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Current
OMB control
No.
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Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
Approved: April 23, 2008
Eric Solomon,
Assistant Secretary of the Treasury.
[FR Doc. E8–9356 Filed 4–28–08; 8:45 am]
BILLING CODE 4830–01–P
ENVIRONMENTAL PROTECTION
AGENCY
§ 301.6722–1 Failure to furnish correct
payee statements.
40 CFR Part 52
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1545–1934
1545–1934
1545–1934
1545–1934
1545–1934
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[EPA–R05–OAR–2004–WI–0002;
FRL–8557–6]
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(d) * * *
(3) Other items. The term payee
statement also includes any form,
statement, or schedule required to be
furnished to the recipient of any amount
from which tax is required to be
deducted and withheld under chapter 3
of the Internal Revenue Code (or from
which tax would be required to be so
deducted and withheld but for an
exemption under the Internal Revenue
Code or any treaty obligation of the
United States) (generally the recipient
copy of Form 1042–S, ‘‘Foreign Person’s
U.S. Source Income subject to
Withholding,’’ or Form 8805, ‘‘Foreign
Partner’s Information Statement of
Section 1446 Withholding Tax.’’)
(e) Effective/Applicability date. The
reference in paragraph (d)(3) of this
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Approval and Promulgation of Air
Quality Implementation Plans;
Wisconsin; Redesignation of the
Forest County Potawatomi Community
Reservation to a PSD Class I Area
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: In this final action, EPA is
approving the request by the Forest
County Potawatomi Community’s (FCP
Community) Tribal Council to
redesignate certain portions of the FCP
Community Reservation as a nonFederal Class I area under the Clean Air
Act (Act or CAA) program for the
Prevention of Significant Deterioration
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(PSD) of air quality. These regulations
are designed to preserve the air quality
in national parks and other areas that
are meeting the National Ambient Air
Quality Standards (NAAQS). The Class
I designation will result in lowering the
allowable increases in ambient
concentrations of particulate matter,
sulfur dioxide, and nitrogen dioxide on
the Reservation.
This final rule is effective on
May 29, 2008.
DATES:
EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2004–WI–0002. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604–3507. This Facility is
open from 8:30 a.m. to 4:30 p.m. Central
Standard Time, Monday through Friday,
excluding legal holidays. We
recommend that you telephone
Constantine Blathras at 312–886–0671
before visiting Region 5’s office. Hard
copies of these docket materials are also
available in the EPA Headquarters
Library, Room Number 3334 in the EPA
West Building, located at 1301
Constitution Ave., NW, Washington,
DC. The EPA/DC Public Reading Room
hours of operation will be 8:30 a.m. to
4:30 p.m. Eastern Standard Time (EST),
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Constantine Blathras, Air Permits
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604–3507; telephone
number: 312–886–0671; fax number:
312–886–5824; e-mail address:
blathras.constantine@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
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Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Rules and Regulations
I. General Information
A. Does This Action Apply to Me?
This action will apply to applicants to
the PSD construction permit program on
Class I trust lands of the FCP
Community.
B. Where Can I Obtain Additional
Information?
In addition to being available in the
docket, an electronic copy of this final
rule is also available on the World Wide
Web. Following signature by the EPA
Administrator, a copy of this final rule
will be posted on the EPA’s New Source
Review (NSR) Web site, under
Regulations & Standards, at https://
www.epa.gov/nsr/actions.html.
C. How Is This Action Organized?
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The information presented in this
action is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. Where Can I Obtain Additional
Information?
C. How is this Action Organized?
II. Background
A. The Clean Air Act Prevention of
Significant Deterioration (PSD) Program
and Class I Area Redesignations
B. The Forest County Potawatomi
Community Redesignation Request
III. Overview of This Final Action
A. What We Proposed
B. Final Action and Differences From
Proposal
IV. Basis for Final Action
A. Class I Redesignation Requirements
1. EPA’s Interpretation of Section 164 of
the Clean Air Act
B. Lands Suitable for Redesignation
C. EPA’s Role in Evaluating Class I
Redesignations
D. Impact of Dispute Resolution on
Redesignation
E. Appropriate Mechanism for Codifying
Class I Area
1. Role of Federal Implementation Plans
(FIP)
2. Contents of Implementation Plan
F. Air Program Implementation in Indian
Country/Role of Tribes in Protecting Air
Quality
G. Air Quality Related Values (AQRVs) of
Redesignated Lands
H. Impact of Class I Redesignation on
Minor Sources
V. 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
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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. National Technology Transfer
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
VII. Statutory Authority
II. Background
A. The Clean Air Act Prevention of
Significant Deterioration (PSD) Program
and Class I Area Redesignations
The CAA provides a comprehensive
structure for ‘‘protect[ing] and
enhanc[ing] the quality of the Nation’s
air resources[.]’’ See section 101(b) of
the CAA. The basis of the CAA’s
regulatory structure is the NAAQS,
which specify the maximum
permissible concentrations of certain
pollutants in the ambient air. See
section 108 and 109 of the CAA.
Furthermore, Part C of Title I of the
CAA provides for the prevention of
significant deterioration of air quality.
The PSD program sets forth procedures
for the preconstruction review and
permitting of new and modified major
stationary sources of air pollution
locating in areas meeting the NAAQS,
i.e., ‘‘attainment’’ areas, or in areas for
which there is insufficient information
to classify an area as either attainment
or nonattainment, i.e., ‘‘unclassifiable’’
areas. These areas are referred to as
‘‘PSD areas.’’ See section 165(a) of the
CAA. ‘‘Major stationary sources’’ are
large industrial sources which emit or
have the potential to emit 250 tons per
year (tpy) or more of a regulated air
pollutant (100 tpy or more if the source
falls in one of 28 specified categories).
See 40 Code of Federal Regulations
(CFR) section 52.21(b). The applicability
of the PSD program to a particular
source must be determined in advance
of construction, and it is pollutant
specific. To obtain a PSD permit, a
major stationary source must install the
‘‘best available control technology’’
(BACT) to control emissions of
regulated pollutants emitted in
significant amounts. See section
165(a)(4) and section 169(3) of the CAA;
40 CFR 52.21(j). PSD permits also
require the source to demonstrate that it
will not contribute to a violation of the
NAAQS or applicable PSD increments
(the maximum allowable air quality
deterioration allowed in a PSD area).
See section 165(a)(3).
The CAA provides three basic
classifications for PSD areas: Class I, II
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and III. For each classification, the PSD
regulations establish the incremental
amount of air quality deterioration
allowed. However and in all cases, the
NAAQS set the maximum allowable
concentration levels of certain
pollutants that may not be exceeded in
a PSD area, irrespective of any
increment. Increments have been
established for three pollutants—
Particulate Matter (PM10), Sulfur
Dioxide (SO2) and Nitrogen Dioxide
(NO2)—and for a variety of averaging
periods, which correspond to the
averaging periods for the NAAQS for
those pollutants. See 40 CFR 52.21(c).
Class I areas include national parks
greater than 6,000 acres in size, national
wilderness areas greater than 5,000
acres in size and other natural areas of
special concern; the smallest increments
are specified for those areas. In addition,
when Congress enacted the PSD
program in 1977, it provided that these
areas may not be redesignated to
another classification. See section 162(a)
of the CAA. Class II applies to areas in
which pollutant increases
accompanying moderate growth are
allowed. Under the 1977 amendments to
the CAA, all areas, other than the
mandatory Federal Class I areas were
initially designated as Class II PSD
areas. However, States and Tribes have
the authority to redesignate Class II
areas to Class I to provide additional air
quality protection and some Tribes have
done so.1 Class III applies to those areas
in which more air quality deterioration
is considered acceptable. States and
Tribes have the authority also to
redesignate Class II areas to Class III to
promote development, but to date; none
have chosen to do so.
The CAA directs the Secretary of the
Interior, or other appropriate Federal
land manager, to review other Federal
lands and recommend for redesignation
to Class I any appropriate areas ‘‘where
air quality related values (AQRVs) are
important attributes of the area.’’ See
section 164(d) of the CAA. The Act does
not define AQRVs nor identify specific
AQRVs other than visibility (See section
165(d)(2)(B) of the Act), but in the
legislative history to the Act, AQRVs are
described as follows:
The term ‘‘air quality related values’’ of
Federal lands designated as Class I includes
the fundamental purposes for which such
lands have been established and preserved by
the Congress and the responsible Federal
agency. For example, under the 1916 Organic
Act to establish the National Park Service (16
1 These are the Northern Cheyenne Reservation,
the Flathead Indian Reservation, the Fort Peck
Indian Reservation, and the Spokane Indian
Reservation. See 40 CFR 52.1382(c), 52.2497(c), and
52.144(c).
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Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Rules and Regulations
U.S.C. 1), the purpose of such national park
lands ‘‘is to conserve the scenery and the
natural historic objects and the wildlife
therein and to provide for the enjoyment of
the same in such manner and by such means
as will leave them unimpaired for the
enjoyment of future generations.’’
Nevertheless, Class I status is not
reserved for special Federal areas alone.
Section 164 of the CAA provides to
States and Indian governing bodies the
ultimate authority to reclassify any
lands within their borders as Class I.
The CAA specifies that ‘‘a State may
redesignate such areas as it deems
appropriate as Class I areas.’’ See
section 164(a) of the CAA. Tribes have
similar authority to redesignate ‘‘lands
within the exterior boundaries of
reservations.’’
The procedural requirements for a
Class I redesignation by a Tribe are set
out in section 164(c) of the CAA and are
further defined in the implementing
regulations at 40 CFR 52.21(g)(4). These
provisions explain the steps a Tribe
needs to follow to request redesignation
of reservation lands. The EPA
Administrator may disapprove a
redesignation request only if the
Administrator finds that the proposal
did not meet the procedural
requirements or was inconsistent with
the CAA. See 42 U.S.C. 164(b)(1)(C)(2).
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B. The Forest County Potawatomi
Community Redesignation Request
The FCP Community is a federally
recognized Indian Tribe recognized by a
congressional Act of June 23, 1913 (38
Stat. 102). The 1913 Act provided that
11,786 acres of non-contiguous land
purchased by the Federal government
would be set aside for the purpose of
making allotments to the Wisconsin
Potawatomi Indians (which included
the FCP Community). While the lands
were purchased for making allotments,
no allotments were ever made due to
changes in Federal allotment policies.
Thus, title to the land remained with the
United States until 1988, when Congress
passed legislation to place the land in
trust for the FCP Community, and to
recognize explicitly all of these lands as
belonging to the FCP Community.2 The
majority of the FCP Community’s
reservation lands are located in Forest
County, Wisconsin, with the remaining
acreage located in six neighboring
townships.
The FCP Community is downwind of
key areas of industrial development.
The reservation is located in the North
2 On August 6, 1987, the Senate enacted Bill 1602
which declared that the trust lands that had been
purchased pursuant to 38 Stat. 102 are ‘‘hereby
declared to be the reservation of the Forest County
Potawatomi Community of Wisconsin.’’
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Central Wisconsin Intra-State Air
Quality Control Region #238. Land in
the northern counties of this region is
mostly forested. Lands south of Madison
County in this region are mostly
agricultural. Population and industry is
concentrated southwest and west of the
reservation, in the areas of Wausau,
Stevens Point, Wisconsin Rapids, and
Rhinelander. At present, Forest County
itself has little industrial development,
and the CAA’s PSD minor source
baseline date, which is the date on
which the first complete application for
a PSD permit is filed in a particular
area, has not been triggered. Thus, at
this time, there has been no PSD
increment consumption in this area.
On February 14, 1995, the FCP
Community submitted its formal request
for redesignation to EPA’s Region 5
office. FCP Community’s redesignation
request proposes to reclassify as Class I
those trust parcels of 80 acres or more
located in Forest County. See Notice of
Proposed Rulemaking, 60 FR 33779
(June 29, 1995). A list of these parcels
can be found in the codification section
of this notice labeled Subpart YY–
Wisconsin, Forest County Potawatomi
Reservation (b). The FCP Community
explained its reasons for requesting
redesignation as follows:
‘‘* * * the Forest County Potawatomi
Community respects Mother Earth, and is
aware of clean air as being a valuable
resource that all living things depend upon
to exist, and, * * * the Forest County
Potawatomi Community wish to continue to
strive towards self-determination, which will
be strengthened by codes and land use plans
that are compatible with their renewable
resources and culture, and, * * * the present
level of protection given to the Forest County
Potawatomi air resource does not provide the
level of protection the Tribe wishes to give
their air, which they want to maintain as very
pristine. * * *’’ See Technical Report at 2.
The FCP Community reaffirmed these
reasons in comments submitted to EPA
on April 27, 2007, by citing the unique
history of the reservation and FCP
Community, the location of the
headwaters of several wild and scenic
rivers in the area, the importance of fish
as a nutritional and recreational
resource, the location of key wetlands in
the area, the FCP Community’s desire to
protect and restore Devil’s Lake, and the
designation of portions of the area
including the FCP Community
Reservation and surrounding areas as
eligible for listing in the National
Historic Register as ‘‘Traditional
Cultural Property.’’ A Traditional
Cultural Property is one that meets the
criteria for listing in the National
Register and which has an ‘‘association
with cultural practices or beliefs of a
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living community,’’ as rooted in that
community’s history and which is
important because of its role in
maintaining the continuing cultural
identity of the community.3
Additionally, the FCP Community
described the central importance of
‘‘purity’’ to its cultural and spiritual
practices, where natural resources
‘‘must be drawn from spiritually pure
natural environments. Concern about
access to these resources and the ability
of the environment to provide the pure
resources needed to sustain Potawatomi
culture occupies the thoughts and
prayers of the community.’’ FCP
Community member Jim Thunder,
stated: ‘‘Today we are abusing our
Mother Earth. Our air, water and soil are
polluted. We are told not to eat fish out
of certain streams and lakes. I pray to
our creator that we look back so that we
may see ahead. Let us examine our lives
so that we are respectful to our fellow
humans and to nature. Let us respect
our children and, above all, let us live
our lives in accordance with our
beliefs.’’ 4
Finally, the FCP Community also
explains that clean air is important to
the Tribal enterprises and economy of
the Tribe, and to the northern
Wisconsin area, where recreation and
tourism are a primary component of the
economic base and a key projected
component of economic growth for the
Tribe and for the region.5
III. Overview of This Final Action
EPA is taking final action on its
evaluation of the FCP Community’s
Tribal Council request to redesignate
certain portions of the FCP Reservation
as a non-Federal Class I area under the
CAA program for the prevention of
significant deterioration of air quality.
We have decided to approve this
request. The Class I designation will
result in lowering the allowable
increases in ambient concentrations of
PM, SO2, and NOX on the Reservation.
3 Jeff Crawford, Forest County Potawatomi
Attorney General, ‘‘Comments Regarding U.S.
Environmental Protection Agency’s proposed
Federal Implementation Plan under the Clean Air
Act for Certain Trust Lands of the FCP Community
if Designated as a PSD Class I Area’’ [hereafter FCP
2007 Comments], April 2007, at 3–10.
4 Id. at 10.
5 ‘‘Tourism in these seven counties [Forest,
Oneida, Florence, Langlade, Marinette and Oconto]
grew by 117% between 1994 and 2005 compared
to 107% for Wisconsin as a whole [citation
omitted]. In 2005 in these seven counties, the $715
million spent by tourists created some 18,005
equivalent full-time jobs and generated some $23.2
million in revenue for local governments through
such means as property taxes, sales taxes, lodging
taxes, and so forth [citation omitted].’’ Id. at 14.
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A. What We Proposed
On June 29, 1995, and July 10, 1997,
EPA proposed to approve a request by
the FCP Community Tribal Council to
redesignate lands within the FCP
Community Reservation in the State of
Wisconsin to Class I under EPA’s
regulations for prevention of significant
deterioration of air quality (60 FR
33779, 62 FR 37007). The Class I
designation will result in lowering the
allowable increases in ambient
concentrations of PM, SO2, and NOX on
certain of the FCP Community’s lands.
On December 18, 2006, EPA proposed
that it would promulgate a Federal
Implementation Plan (FIP) if it approves
FCP Community’s request, with the FIP
to be implemented by EPA unless or
until it is replaced by a Tribal
Implementation Plan (TIP).
B. Final Action and Differences From
Proposal
In this final action, we are approving
FCP’s Community request to redesignate
certain reservation lands to Class I
status. EPA finds that the FCP
Community has met the applicable
procedural requirements and thus its
redesignation request must be approved.
However, we are amending, based on
comments received, the language
proposed in the December 18, 2006,
rulemaking, which had stated in
pertinent part the following
modification to the FIP for the PSD
program in Wisconsin:
(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. * * *
(8) Section 2 of T36N R13E* * *
(26) N1⁄2 of Section 22 of T35N R16E* * *
(27) SE1⁄4 of Section 22 of T35N
R16E* * *
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First of all, the FCP Community noted
that the draft language was not based on
the current language for 40 CFR
52.2581, which provides:
(e) Regulations for the prevention of
significant deterioration of air quality. The
provisions of § 52.21 except paragraph (a)(1)
are hereby incorporated and made a part of
the applicable State plan for the State of
Wisconsin for sources wishing to locate in
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Indian country; and sources constructed
under permits issued by EPA.
EPA agrees and for that reason the
current language should be the starting
point to any modification of this
provision.
Second, the FCP Community stated
that EPA’s proposed FIP language
‘‘creates ambiguity regarding whether
the requirements of 40 CFR 52.21 apply
to the FCP Community’s Reservation.’’ 6
EPA intends that the requirements of 40
CFR 52.21 apply to the parcels
redesignated as Class I, and has
modified the proposed FIP language
accordingly to remove the phrase
‘‘except as specified in paragraph (f) of
this section. The revised rulemaking
text is as follows:
(e) Regulations for the prevention of
significant deterioration of air quality. The
provisions of § 52.21 except paragraph (a)(1)
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.
(f) Forest County Potawatomi Community
Reservation.
(1) The provisions for prevention of
significant deterioration of air quality at 40
CFR 52.21 are applicable to the Forest
County Potawatomi Community Reservation,
pursuant to § 52.21(a).
(2) In accordance with section 164 of the
Clean Air Act and the provisions of 40 CFR
52.21(g), those parcels of the Forest County
Potawatomi Community’s land 80 acres and
over in size which are located in Forest
County are designated as a Class I area for the
purposes of prevention of significant
deterioration of air quality. For clarity, the
individual parcels are listed in 40 CFR
52.2581(f)(2).
Finally, the FCP Community has
commented that the three parcels,
numbers 8, 26, and 27 have been
incorrectly identified either in the
description of lands provided in the
Tribe’s letter of February 24, 1998, or in
EPA’s list of parcels proposed for
redesignation published in the
December 18, 2006, proposed
rulemaking. These lands are, however,
correctly identified on the December 13,
1994, S. Funk map provided by the
Tribe with its redesignation request.
This map was specifically reviewed by
the Bureau of Indian Affairs,
Minneapolis District office, which
certified that the lands marked for
proposed redesignation are lands held
in trust for the Tribe. Letter from Robert
Jaeger, Superintendent, Bureau of
Indian Affairs to David Kee, Director,
Region 5 Air and Radiation Division on
April 16, 1998. This map has been
available for public notice and comment
during the pendancy of this rulemaking.
6 FCP
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23089
Accordingly, EPA has corrected the
legal description of parcel numbers 8,
26, and 27 in the list of lands
redesignated to Class I pursuant to
today’s action.
IV. Basis for Final Action
A. Class I Redesignation Requirements
EPA is taking this action in
accordance with the requirements of
section 164 of the CAA. In section 164
of the Act, Congress provides States and
Tribes the ultimate authority to
reclassify any lands within their borders
as Class I based on the following
statutory and regulatory requirements:
(1) At least one public hearing must
be held in accordance with procedures
established in 40 CFR 51.102. See 40
CFR 52.21(g)(2)(i).
(2) Other States, Indian Governing
Bodies, and Federal Land Managers
whose lands may be affected by the
proposed redesignation must be notified
at least 30 days prior to the public
hearing. See 40 CFR 52.21(g)(2)(ii).
(3) At least 30 days prior to the Tribe’s
public hearing, a discussion of the
reasons for the proposed redesignation
including a satisfactory description and
analysis of the health, environmental,
economic, social and energy effects of
the proposed redesignation must be
prepared and made available for public
inspection. See 40 CFR 52.21(g)(2)(iii).
(4) Prior to the issuance of the public
notice for a proposed redesignation of
an area that includes Federal lands, the
Tribe must provide written notice to the
appropriate Federal Land Manager and
afford an adequate opportunity for the
Federal Land Manager to confer with
the Tribe and submit written comments
and recommendations. See 40 CFR
52.21(g)(2)(iv).
(5) The proposal to redesignate has
been made after consultation with the
elected leadership of local and other
substate general purpose governments
in the area covered by the proposed
redesignation. See 40 CFR 52.21(g)(2)(v).
(6) Prior to proposing the
redesignation, the Indian Governing
Body must consult with the State(s) in
which the Reservation is located and
that border the Reservation. See 40 CFR
52.21(g)(4)(ii).
(7) Following completion of the
procedural steps and consultation, the
Tribe submits to the Administrator a
proposal to redesignate the area. See 40
CFR 52.21(g)(4).
1. EPA’s Interpretation of Section 164 of
the Clean Air Act
In addition to reiterating the CAA
section 164 requirements, the following
discussion identifies the actions taken
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by the FCP Community to fulfill those
requirements and clarifies our
interpretation of the requirements in
light of several comments we received.
1. At least one public hearing must be
held in accordance with procedures
established in 40 CFR 51.102. See 40
CFR 52.21(g)(2)(i).
The regulations require that a public
hearing on a proposed redesignation be
conducted in accordance with 40 CFR
51.102, which requires the following: A
minimum of 30 days notice, ‘‘prominent
advertisement’’ regarding the hearing in
the affected area, availability of plans;
notification to the EPA Administrator,
local air pollution authorities, and
preparation of a record of the
proceedings. See 40 CFR 51.102(a)–(f).
The FCP Community held a public
hearing on the proposed redesignation
on September 29, 1994, at the
Potawatomi Tribal Hall, in Crandon,
Wisconsin. The FCP Community’s
redesignation request included a
certification that the hearings were held
in compliance with applicable notice
requirements, including adequate notice
to appropriate local, State and Federal
entities, as well as public hearing
requirements. A transcript of the
hearing, notices (including copies of
advertisements), letter invitations,
copies of comments received, a
transcript of the hearing, and response
to comments was included in the FCP
application for redesignation.
Accordingly, EPA finds that the hearing
held by the FCP Community was
adequate.
2. Other States, Indian Governing
Bodies, and Federal Land Managers
whose lands may be affected by the
proposed redesignation must be notified
at least 30 days prior to the public
hearing. See 40 CFR 52.21(g)(2)(ii).
The FCP Community held its public
hearing on September 29, 1994. Notices
of the public hearing, as well as
notification of the public comment
period and copies of supporting
documents, were sent to dozens of
governmental entities and interest
groups in a letter dated August 26, 1994.
Entities noticed included EPA Region 5,
the States of Wisconsin and Michigan 7
(even though the lands covered by the
redesignation lie wholly within Forest
County, Wisconsin), the Bureau of
Indian Affairs, the U.S. Fish and
Wildlife Service; nine Wisconsin Tribal
governments; nineteen counties and
townships; local planning commissions
in Wausau, Eau Claire, and Green Bay,
7 EPA examined correspondence between the
Tribe and the State of Michigan and confirmed that
the State received timely notification of the public
hearing.
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Wisconsin; and, many other
organizations. The FCP Community also
published notices of the September 29,
1994, public hearing in four local
newspapers, which ran between August
29, 1994 and September 1, 1994.
Representatives from many of these
governmental entities and organizations
provided comments at the hearing or in
writing. The FCP Community responded
to these and other comments received
from private individuals and
commercial entities in its February 1995
‘‘Responses to Common Questions and
Issues in Written Comments on the
Proposed Forest County Potawatomi
Community PSD Class I Area
Redesignation,’’ Technical Report at
Appendix A. For a copy of this
document, please visit the public docket
of this rulemaking.
In light of the outreach, public notice,
opportunity for comment, and
information distributed by the FCP
Community in preparation for making
their request to EPA for redesignation,
EPA finds that the FCP Community
provided adequate opportunity for
notice, comment, and consultation.
3. At least 30 days prior to the Tribe’s
public hearing, a discussion of the
reasons for the proposed redesignation
including a satisfactory description and
analysis of the health, environmental,
economic, social and energy effects of
the proposed redesignation must be
prepared and made available for public
inspection. See 40 CFR 52.21(g)(2)(iii).
Section 164(b)(1)(A) of the CAA
requires that a State or Tribe prepare for
public comment a ‘‘satisfactory
description and analysis of the health,
environmental, economic, social, and
energy effects of the proposed
redesignation.’’ However, neither the
CAA nor EPA regulations define
‘‘satisfactory description and analysis,’’
as that term is used in CAA section
164(b) and 40 CFR 52.21(g)(2). In
construing its meaning, EPA considered
Congressional intent that EPA’s review
of a ‘‘description and analysis’’ be
deferential. In addition, EPA considered
the question: ‘‘Satisfactory to whom?’’
Many commenters argued that the
Tribe’s request should be denied
because they were unsatisfied with the
level of documentation in the Tribe’s
application regarding economic impacts
and whether the Tribe had sufficiently
demonstrated that Class I redesignation
would not have an adverse economic
impact on surrounding areas, be they
local communities, adjacent states, or
states across the nation. EPA disagrees.
In enacting section 164(b), it is clear
that Congress intended to entrust EPA
with the authority to set a deferential
standard for ‘‘satisfactory description
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and analysis.’’ Thus, EPA stated in its
final rule on the Yavapai Apache Class
I redesignation that: ‘‘[The use of the
word ‘‘satisfactory’’] in the statute and
implementing regulations suggests a
relatively low threshold. Congress did
not dictate that the analysis be
comprehensive or exhaustive. Further,
the statutory language does not assign
any specific weight to the consideration
of health, environmental economic,
social or energy effects, or suggest that
one consideration should be given
priority over another. * * * See
‘‘Arizona Redesignation of the Yavapai
Apache Reservation to a PSD Class I
Area,’’ 61 FR 56461–56464 (November
1, 1996).
Therefore, there is no requirement
that a State or Tribe conduct a balancing
test of the costs and benefits of a
redesignation request, nor that the
various factors to be considered in its
analysis need to be balanced against one
another. EPA has taken the position that
the fact that no weight or priority is
assigned to any particular factor, taken
together with the broad redesignation
discretion conferred on States and
Tribes, indicates that the Tribe does not
have to justify or overcome a balancing
test in its redesignation request or show
that a proposed redesignation will have
no impact on the surrounding
community.
Legal precedent clearly supports
EPA’s interpretation. In Nance v. EPA,
645 F.2d 701 (9th Cir. 1981), petitioners
claimed that the Northern Cheyenne
Tribe’s analysis was inadequate in
several respects. However, the Ninth
circuit court rejected the claim that the
Tribe was required to meet exacting
analysis requirements and held that the
Tribe had considered the factors
identified in EPA’s regulations. Nance
v. EPA, 645 F.2d at 712. EPA’s decision
in this case was upheld under the far
more exacting pre-1977 regulatory
regime that expressly provided for an
analysis that included consideration of
growth anticipated, regional impacts,
and social, environmental and economic
effects as well as stricter EPA scrutiny
of the analysis.
Moreover, the court found that the
Tribe’s decision was supported and
strengthened by the policy for
maintaining clean air embodied in the
CAA:
[T]he Clean Air Act contains a strong
presumption in favor of the maintenance of
clean air, and the nature of a decision which
simply requires that the air quality be
maintained at a certain level prevents any
exact prediction of its consequences. The
Tribe has considered the factors enumerated
in EPA regulations, and its choice in favor of
the certainty of clean air is a choice
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supported by the preferences embodied in
the Clean Air Act.
Nance v. EPA, 645 F.2d at 712.
In another case regarding the approval
of a redesignation request, in this case
for the Yavapai Apache Tribe (See
Administrator, State of Arizona v. EPA,
151 F.3d at 1211, 9th Cir. 1998,
hereafter Arizona v. EPA), the Ninth
Circuit also deferred to EPA’s
conclusion that the existing statutory
requirement of a ‘‘satisfactory
description and analysis’’ is a relatively
low threshold. The court explained that
the 1977 CAA amendments to the PSD
provisions, which are still in the statute,
changed previous law by eliminating
EPA’s previous authority to override a
classification by a local government on
the basis that the local government did
not properly weigh energy,
environment, and other factors. Arizona
v. EPA at 151 F.3d at 1211 (citing
legislative history). Moreover, EPA’s
role in reviewing redesignation requests
is so limited it cannot disapprove a
request unless it finds that the
redesignation ‘‘does not meet the
procedural requirements’’ of the Act,
CAA Section 164(b)(2); this statutory
limitation provides no support for the
commenters’ suggestion that EPA has
broad authority to review the quality of
the ‘‘description and analysis’’ much
less to disapprove a redesignation
unless the description and analysis are
‘‘satisfactory.’’
For those reasons, EPA finds that the
FCP Community met the statutory
requirement to provide a ‘‘satisfactory
description and analysis.’’ Nevertheless,
many commenters argued that the
Tribe’s request should be denied
because they were unsatisfied with the
level of documentation in the Tribe’s
application regarding economic impacts
and whether the Tribe had sufficiently
demonstrated that Class I redesignation
would not have an adverse economic
impact on surrounding areas, be they
local communities, adjacent states, or
states across the nation.8
As discussed previously, neither the
CAA nor its implementing regulations
require a State or Tribe to assess the
impact of a proposed redesignation on
areas outside the lands proposed for
redesignation, nor to demonstrate that a
request for redesignation would not
impact these areas. Nevertheless, the
FCP Community’s application for
redesignation contained information to
show that the Tribe had examined the
existing economy of the region and
analyzed the potential impact of Class I
redesignation on the existing and future
projected economic growth in the
8 FCP
2007 Comments, at 15.
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region, concluding that ‘‘The
development of large industrial projects
will very likely be effected [sic] more by
economic viability, external market
conditions, and other existing local
environmental and land use restrictions
than by the Class I redesignation.’’ 9
Furthermore, supplemental
information submitted by the FCP
Community in June 1995, contained an
additional analysis showing that the
anticipated (at that time) PSD caliber
sources planning to construct or
expand, as well as projected area
economic growth, would not be
adversely impacted by the proposed
Class I area. The analysis concluded that
‘‘Class I redesignation will not effect the
operations of any existing industry
because the PSD program only effects
the development of new air pollutant
sources.’’ Therefore, the Technical
Report concluded, ‘‘The redesignation
will not result in the loss of any existing
jobs, nor in the ‘‘downsizing’’ or closing
of any existing businesses. It will only
require major new development projects
to analyze the effects of and control the
emission of air pollutants, so that the
existing air quality remains clean
[emphasis in original].’’ 10
Moreover, the Tribe prepared a
Technical Report and released it for
public comment in advance of its public
hearing. This Technical Report
examines the environmental, health,
economic, social and energy effects of
the proposed redesignation both on and
off FCP Community reservation lands.
The analysis includes a survey of
present conditions and presents
projected impacts of redesignation on
health, employment, and natural
resources, including the project impacts
to aquatic, forest and wetlands
ecosystems; and to fish and wildlife
populations. The FCP Community’s
Technical Report also provides a
discussion of the projected effects of
redesignating the FCP Community
Reservation lands to Class I and the
effects of remaining Class II.
Additionally, although there is no
statutory obligation to identify AQRVs
prior to seeking redesignation, the FCP
Community’s Technical Report and a
supplementary support document dated
June 14, 1995, provide the FCP
Community’s analysis of potential
impacts of the two AQRVs identified
(mercury deposition and acid rain) in
9 Technical
Report, included in Application, at
56.
10 Technical Report at 55. Supplemental
information submitted by the FCP Community in its
2007 comments on the proposed FIP provided
additional information to show that economic
development did not slow or decrease near Class I
areas.
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23091
the context of the health,
environmental, energy, economic, and
social factors analysis, both for lands
subject to the redesignation request, and
those located outside the proposed area.
The Technical Report notes in several
instances that adverse impacts on
AQRVs, which occur at concentrations
lower than Class I increments, might
pose an additional restriction on the
sitting of large projects.
In conclusion, upon review of the
documentation submitted by the FCP
Community, EPA finds that the FCP
Community has fully met the
requirement in CAA section
164(b)(1)(A) and 40 CFR 52.21(g)(2)(iii)
to provide a ‘‘satisfactory description
and analysis of the health,
environmental, economic, social, and
energy effects of the proposed
redesignation.’’
4. Prior to the issuance of the public
notice for a proposed redesignation of
an area that includes Federal lands, the
Tribe must provide written notice to the
appropriate Federal Land Manager
(FLM) and afford an adequate
opportunity for the FLM to confer with
the Tribe and submit written comments
and recommendations. See 40 CFR
52.21(g)(2)(iv).
In addition to consultation
undertaken by the FCP Community with
Federal, State, and local agencies, the
FCP Community consulted directly with
the Bureau of Indian Affairs (BIA)
regarding FLM responsibilities. After
those consultations, the BIA informed
the FCP Community of that Agency’s
support of the Class I redesignation
request and that Agency’s view that the
Tribe would be the appropriate land
manager for the lands subject to the
redesignation request.11 EPA finds,
accordingly, that the Tribe has satisfied
this requirement.
5. The proposal to redesignate has
been made after consultation with the
elected leadership of local and other
substate general purpose governments
in the area covered by the proposed
redesignation. See 40 CFR
52.21)(g)(2)(v).
The lands covered by the proposed
redesignation lie wholly within Forest
County, Wisconsin, and are comprised
wholly of reservation lands held in
federal trust. The CAA requires notice to
governmental entities ‘‘in the area
covered by the proposed redesignation.’’
See 52.21(g)(2)(v) (emphasis added).
There is no requirement, however, for a
finding on what areas may be affected
11 Letter from Acting Superintendent Robert C.
Ford, Great Lakes Agency, Bureau of Indian Affairs,
U.S. Department of Interior, to Al Milham,
Chairman, February 15, 1994.
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by a proposed redesignation or notice to
such governments in such areas. As
discussed in Section IV.A.1–2, the FCP
Community’s application contains a list
of dozens of federal, state and local
governmental offices which were
notified of the Tribe’s intended action.
Additionally, the FCP Community
developed a fact sheet and held a
consultation session with federal, state,
and local governmental representatives
to further explain and hear concerns
regarding the proposed action, besides
the required public hearing. Further, the
FCP Community received numerous
comments on its proposed action, to
which it prepared a response to
comments document. Thus, and even
while the regulation does not provide a
standard for ‘‘consultation,’’ EPA deems
the actions of the FCP Community to
have provided sufficient notice and
opportunity for comment.
6. Prior to proposing the
redesignation, the Indian Governing
Body must consult with the State(s) in
which the Reservation is located and
that border the Reservation. See 40 CFR
52.21(g)(4)(ii).
The FCP Community’s reservation is
located wholly within the State of
Wisconsin. For that reason, the FCP
Community included several Wisconsin
offices and agencies in its notice on the
proposed redesignation and public
hearing, as discussed in section IV.A.1–
2 above. Nevertheless, the FCP
Community also provided notice of its
intent to redesignate to several divisions
of the Michigan Department of
Environmental Quality, although the
State of Michigan does not border the
reservation. Both Wisconsin and
Michigan provided comments on the
proposed redesignation, to which the
Tribe responded in its response to
comments document. Thus, EPA finds
that the FCP Community’s consultation
efforts comply with the requirement to
consult with States.
7. Following completion of the
procedural requirements, the Tribe
submits to the Administrator a proposal
to redesignate the area. See 40 CFR
52.21(g)(4).
On December 4, 1993, and by majority
vote, the FCP Community General
Council and the tribal governing body of
the FCP Community passed a resolution
to request the Administrator to
redesignate the FCP Community
Reservation and on February 10, 1995,
the FCP Community General Council
passed a resolution to submit its
completed redesignation request
package to EPA. The FCP Community
submitted its formal request for
redesignation to EPA’s Region 5 office
on February 14, 1995.
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EPA reviewed the FCP Community’s
request and made a preliminary
determination that the request met the
applicable procedural requirements of
40 CFR 52.21(g)(4). After making this
preliminary determination, EPA
published a notice of proposed
rulemaking in the Federal Register
proposing to approve the request and
announced a 120-day public comment
period on the issue of whether the Tribe
had met the procedural requirements.
See Notice of Proposed Rulemaking, 60
FR 33779 (June 29, 1995).
However, on June 8, 1995, the
Governors of Wisconsin and Michigan
sent a letter to EPA objecting to EPA’s
proposal to grant the FCP Community
request for redesignation and requested
EPA to intervene. The letter also
requested that EPA not finalize the
proposed redesignation until further
regulations were in place to address
permitting on non-Federal Class I areas.
On August 7, 1995, EPA published a
notice cancelling the August 2, 1995,
hearing and indefinitely extending the
public comment period because the
Governors of Wisconsin and Michigan
had requested negotiations pursuant to
Section 164(e) of the CAA to resolve
their dispute regarding the proposed
Class I request. In response to the States’
requests, EPA suspended the
rulemaking to address the States’
concerns. See 60 FR 40139 (August 7,
1995).
In 1997, EPA published an advanced
notice of proposed rulemaking to
address PSD permitting in non-Federal
Class I areas. 62 FR 27158 (May 16,
1997). Additionally, two public
workshops were held to gather
comments on the advanced proposal. 62
FR 33786 (June 23, 1997). EPA also
initiated a dispute resolution process for
Michigan and Wisconsin, but after 2
years of discussions, the parties had
failed to reach an agreement.
Accordingly, EPA published a notice
scheduling two public hearings on the
proposed redesignation and setting the
closing date of the public comment
period for September 15, 1997. 62 FR
37007 (July 10, 1997). EPA held two
public hearings on the proposed
redesignation, the first on August 12,
1997, in Carter, Wisconsin, and the
second on August 13, 1997, in
Rhinelander, Wisconsin, with an
informational meeting preceding each
hearing. EPA also provided numerous
opportunities for input from local
governments in EPA’s public notice and
hearing process on the proposed
rulemaking for the redesignation.
The redesignation proposal elicited
numerous comments from state
governments, local governments and the
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general public. Responses to these
comments are found in the response to
comments document, which is part of
the record for this rulemaking. However,
major comments are summarized in this
notice.
B. Lands Suitable for Redesignation
Section 164(c) of the CAA provides
that ‘‘Lands within the exterior
boundaries of reservations of federally
recognized Indian Tribes may be
redesignated. * * *’’ 42 U.S.C. 7474(c).
The PSD regulations define ‘‘Indian
Reservation’’ as ‘‘any federally
recognized reservation established by
Treaty, Agreement, executive order, or
act of Congress.’’ See 40 CFR
52.21(b)(27). The FCP Community’s
reservation lands are comprised of noncontiguous trust parcels comprising a
total area in excess of 11,700 acres, as
described in Section II.B. The FCP
Community’s trust holdings are
primarily located in Forest County, with
other parcels located in surrounding
townships. In its redesignation request,
the FCP Community included only
those parcels of 80 acres or greater in
size and located within Forest County.
Several commenters raised concerns
that the area proposed for redesignation
includes lands that are not within the
boundaries of the FCP Indian
reservation. To address these concerns,
EPA sought further information from
both the FCP Community and the
Bureau of Indian Affairs (BIA) regarding
the status of lands proposed by the FCP
Community for redesignation. By letter
of February 24, 1998, the FCP
Community provided documents
describing the parcels subject to the
proposed redesignation. EPA
subsequently requested an opinion from
the U.S. Department of Interior (DOI) on
the status of those lands, and, DOI’s BIA
stated as follows:
The map compiled by S. Funk and dated
12/13/94 was used for determination
purposes. All of those lands identified on
that map as tribal trust meet the criteria of
Section 164(c) of the CAA as so stated. The
parcels noted as tribal trust have all been
designated reservation land by proclamation
of the Assistant Secretary.12
The BIA certification is available for
inspection at the public docket for this
rulemaking.
However, the FCP Community
commented that the list of parcels
subject to the Class I redesignation
request contained errors when
compared to the S. Funk map. These
12 Letter from Robert Jaeger, Superintendent, BIA
Great Lakes Agency, to David Kee, Air and
Radiation Division, USEPA Region 5, April 16,
1998.
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errors have been corrected in this
action. See Section III.B. EPA’s action
redesignates to Class I only those lands
from FCP Community’s original list
which have been confirmed to be held
in trust for the FCP Community and,
therefore, are part of FCP Community’s
Reservation.
Several commenters, including the
FCP Community, also expressed their
belief or concern that lands acquired by
a Tribe or State subsequent to this
redesignation request would
automatically become part of the Class
I area without having to follow the
redesignation process in 40 CFR
52.21(g). However, EPA believes that a
State or Tribe is required to submit a
new redesignation request and follow
all of the procedural steps to redesignate
additional parcels not covered by a
previous request where, as here, a Tribe
has requested redesignation of specified
parcels, and not its entire reservation. In
addition, EPA would be required to
follow the public notice and comment
procedures set out by Congress in
section 164(b)(2) of the CAA to review
the new request prior to making its
determination whether to grant the
request. Therefore, any additional lands
which are placed into trust for the FCP
Community would require the FCP
Community to submit a new
redesignation request.
Some commenters also 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. EPA disagrees.
As explained in the notice that resolves
the dispute resolution with the State of
Michigan and that is published
concurrently with this final action in
this Federal Register, EPA can only
consider the size of an area proposed for
redesignation when resolving a dispute
under CAA section 164(e). Michigan
raised such a dispute and EPA is
resolving it in a separate notice. For
reasons explained there, EPA concluded
that the size of the areas requested for
redesignation provides no basis for
disapproval.
C. EPA’s Role in Evaluating Class I
Redesignations
Several commenters asserted that
EPA’s consideration of a redesignation
request should not be limited to
whether a Tribe or State has met the
procedural requirements, but rather,
that EPA should also consider the
substantive basis of the request,
examine tribal jurisdiction, and interject
its judgment as to whether the Tribe or
State redesignation request is warranted
by considering such factors as the
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potential economic impact of the
redesignation. EPA disagrees. These
comments urge that EPA should, to
varying degrees, exceed the
congressional imposed limits on EPA’s
review authority and suggest imposing
requirements on a Tribe’s redesignation
request that go far beyond what the CAA
provides.
EPA began administering a PSD
program in 1974, before Congress
promulgated statutory provisions for the
PSD program in the Clean Air Act
Amendments of 1977, Public Law
95–95, 91 Stat. 685 (1977 Amendments).
In its early CAA implementing
regulations, EPA played an active role
in the review and approval of
redesignation requests. See 39 FR
42510, 42515 (Dec. 5, 1974). Among
other things, EPA’s pre-1977 regulations
authorized it to disapprove a
redesignation request if a State had
‘‘arbitrarily and capriciously
disregarded’’ anticipated growth, or the
social, environmental, and economic
impact of redesignation on surrounding
areas. See 40 CFR
52.21(c)(3)(vi)(a)(1975); 40 CFR
52.21(c)(3)(ii)(d)(1975).
However, in the 1977 CAA
Amendments, Congress minimized
EPA’s authority to disapprove
redesignation requests. Specifically, in
section 164(b)(2), Congress limited
EPA’s authority to disapprove a
redesignation ‘‘only if [EPA] finds, after
notice and opportunity for public
hearing,’’ that the applicable
‘‘procedural requirements’’ of section
164 have not been met. 42 U.S.C.
7474(b)(2) [emphasis added]. By this
language, Congress clearly intended to
limit EPA’s role to ensuring that a State
or Tribe adheres to the procedural
requirements of section 164(b)(2). As the
House Report accompanying the 1977
Amendments stated:
The intended purpose of [the congressional
PSD program is] * * * to delete the
[preexisting] EPA regulations and to
substitute a system which gives a greater role
to the States and local governments and
which restricts the Federal Government.
* * * [b]y eliminating the authority which
the Administrator has under current EPA
regulations to override a State’s classification
of an area on the ground that the State
improperly weighed energy, environment,
and other factors.
EPA honored this directive when it
revised its PSD regulations following
the 1977 CAA Amendments. See 42 FR
57479–57480 (Nov. 3, 1977) and thus
EPA ‘‘will no longer be able to base a
disapproval of a proposed redesignation
on a finding that the State decision was
arbitrary or capricious.’’ Furthermore,
although this language refers to States,
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the CAA and legislative history make
clear that the discussion applies equally
to tribal redesignations. See also
Arizona v. EPA.
Thus, Congress has limited EPA’s
review of a proposed redesignation.
Under section 164(c)(2) of the CAA,
EPA’s role is to determine whether the
requesting State or Tribe followed
specific procedural requirements, and to
ensure that the local decision making
process provides ample opportunity for
interested parties to express their views.
It is inappropriate for EPA to interpose
superseding Federal views on the merits
of the resulting State or Tribal decisions,
so long as procedural rigor is assured.
Thus, in the case of the FCP
Community’s redesignation request,
EPA’s review of the redesignation
proposal is limited to ensuring that the
FCP Community followed the
prescribed statutory requirements. See
Section IV.A. For those reasons, EPA
concludes that comments regarding the
possible economic impact of the
redesignation or the merits of the Tribe’s
request do not provide any basis for
EPA to disapprove the redesignation.
D. Impact of Dispute Resolution on
Redesignation
Section 164(e) of the CAA and 40 CFR
52.21(t) provide the current statutory
and regulatory framework for resolving
disputes between States and Tribes
arising from the redesignation of an
area. Section 164(e) provides that if the
Governor of an affected State or the
appropriate Indian Governing Body of
an affected Tribe disagrees with a
request for redesignation by either party,
then the governor or Indian ruling body
may request that EPA negotiate with the
parties to resolve the dispute. Pursuant
to the statute and implementing
regulations, EPA is not a party to the
dispute. The Administrator of EPA is by
statute designated as the final arbiter of
the dispute.
The statute provides that either party
can ask the Administrator for a
recommendation to resolve the dispute,
and if the parties fail to reach an
agreement during the negotiations, ‘‘the
Administrator shall resolve the dispute
and his determination, or the results of
agreements reached through other
means, shall become part of the
applicable plan and shall be enforceable
as part of such plan.’’ See section 164(e).
The statute further provides that, ‘‘In
resolving such disputes relating to area
redesignation, the administrator shall
consider the extent to which the lands
involved are of sufficient size to allow
effective air quality management or have
air quality related values of such an
area.’’ Section 164(e).
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As previously noted in Section IV.C,
section 164(b)(2) of the CAA provides a
general rule which allows EPA to
disapprove a redesignation request
‘‘only if [it] finds, after notice and
opportunity for public hearing,’’ that
applicable ‘‘procedural requirements’’ of
the section are unmet. Section 164(e) of
the CAA creates a limited exception to
this general rule and requires EPA to
consider additional factors where a
State or Tribe requests that EPA enter
into negotiations to resolve a StateTribal dispute.
Section 164(e) mandates that when
EPA resolves a dispute, it must
‘‘consider the extent to which the lands
involved are of sufficient size to allow
effective air quality management or have
air quality related values of such area.’’
But where the parties reach agreement,
the agreement becomes part of the
applicable plan and the dispute is
ended. Similarly, where EPA resolves a
dispute in favor of the party requesting
redesignation, dispute resolution is also
terminated, and the only remaining
question is whether the Tribe met the
requirements of section 164(b)(2). EPA
explained its role in the dispute
resolution process as follows:
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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.
71 FR 75696.
EPA received letters from the
Governors of Michigan and Wisconsin,
dated June 8, 1995, requesting that EPA
initiate dispute resolution. Between
June 1995 and July 1999, in two
separate rounds of dispute resolution
proceedings, the parties utilized a
professional mediation service, under
contract to EPA, to mediate the separate
disputes between Wisconsin and the
FCP Community, and between Michigan
and the FCP Community.
EPA has determined that no issues
raised during either dispute resolution
process would provide a basis on which
EPA would deny the FCP Community’s
request for redesignation. For this
reason, EPA is treating its resolution of
the disputes invoked by the States of
Wisconsin and Michigan under section
164(e) of the CAA separately from its
approval of the redesignation request,
and is publishing them separately, but
at the same time as this final action.
EPA provides a complete discussion of
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the resolution of the intergovernmental
disputes in these two separate Federal
Register notices.
E. Appropriate Mechanism for Codifying
Class I Area
1. Role of Federal Implementation Plans
(FIP)
As noted in section IV.A, Section 164
of the CAA affords States and Tribes the
right to request that EPA redesignate
lands under their control. If all
procedural requirements are met, EPA
must approve this request. However,
several commenters asserted that EPA
has no authority to implement the
redesignation by any mechanism but a
TIP. EPA disagrees.
Before the FCP Community submitted
this request for redesignation from Class
II to Class I the Yavapai Apache Tribe
of Arizona submitted such a request,
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 Arizona v. EPA. The Ninth Circuit’s
decision stated, among other things, that
EPA had not abused its discretion by
approving the Tribe’s redesignation
request but 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
with this rule that certain provisions of
the CAA should not be applied to Tribes
in exactly the same manner in which
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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, however, 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 established the
framework 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 51,
Appendix V, or does not receive 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.
For that reason, and consistent with
the approach detailed in the TAR, the
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FCP Community sent a letter to Francis
X. Lyons, Regional Administrator of
EPA Region 5, requesting that EPA
promulgate the requested redesignation
of the proposed Class I area parcels in
a FIP, as opposed to utilizing a TIP,
because the FCP Community was
continuing to build its capacity and
infrastructure to run its 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 that a
FIP would be an appropriate option for
implementing the Class I area should
EPA grant the FCP Community’s
request. On December 18, 2006, EPA
published a supplemental proposal
seeking comment on the proposed
codification of the FCP Community
redesignation in a FIP. 71 FR 75694
(December 18, 2006). In that proposal,
EPA expressed its view that, consistent
with the TAR, 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.
The PSD program is implemented in
Wisconsin under an EPA approved SIP
which excludes all of Indian country
within the State. In the December 18,
2006 proposal, EPA explained:
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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 in tribal lands and
other sources that require permits issued by
the EPA. See 64 FR 28748 (May 27, 1999).
The current EPA regulations addressing the
PSD program in Wisconsin are found at 40
CFR 52.2581.
71 FR 75694, 75698. Therefore, EPA’s
December 18, 2006, proposal to codify
the Forest County Potawatomi Class I
area is an amendment to an existing FIP
for Wisconsin Indian country, rather
than the promulgation of a new FIP.
For those reasons, EPA does not agree
with any suggestion that promulgation
of a FIP cannot be the mechanism for
implementing a redesignation of tribal
lands as Class I. As discussed
previously in this section, the FCP
Community has formally requested that
EPA approve its request to redesignate
certain reservation lands and has
demonstrated that it has met the
necessary procedural requirements.
EPA’s promulgation of a FIP, at the
Tribe’s express request because it is not
yet ready to develop its own TIP, does
not supplant the Indian governing
body’s role in making the decision to
request EPA approval of the
redesignation.
However, another commenter also
argues that use of a FIP is inappropriate
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because section 164(c) of the CAA states
that only the appropriate Indian
governing body may redesignate
reservation lands, which, the
commenter suggests, leaves no role for
EPA. The commenter is mistaken.
Section 164 of the CAA sets out the
requirements for non-federal land
redesignations and clearly specifies that
the decision to redesignate will be made
by the appropriate State or Indian
governing body following certain
procedural steps, discussed in Section
IV.A, and that EPA makes the decision
whether to approve the redesignation.
The Tribe has requested the
redesignation and EPA has approved it.
That is fully consistent with CAA
section 164(b)(2).
Furthermore, one State commenter
asserts that a FIP is inappropriate in this
case because it is not needed to protect
the air quality of the lands proposed for
redesignation because these lands are
already protected as Class II areas under
the CAA. EPA does not agree. As the
FCP Community’s request for
redesignation makes clear, the FCP
Community is seeking greater protection
for these lands than is presently
provided under their Class II
classification. Section 164(c) of the CAA
provides that States and Tribes may
redesignate lands of their choosing
where they meet the procedural
requirements for redesignation.
Moreover, this State commenter argues
that a FIP is inappropriate because the
TAR rule addresses only ‘‘tribal air
quality programs’’ and Class I
redesignation is not such a program.
EPA disagrees that the use of a FIP is
inappropriate for implementation of
anything except a tribal air quality
program. As discussed at the beginning
of this section, 40 CFR 49.11 states in
pertinent part that ‘‘[The Administrator]
[s]hall promulgate without unreasonable
delay such Federal implementation plan
provisions as are necessary or
appropriate to protect air quality * * *
if a Tribe does not submit a tribal
implementation plan. * * *’’ (emphasis
added). Where, as here, the FCP
Community has declined to submit a
TIP, a FIP is an appropriate mechanism
to protect the air quality of the
redesignated Class I lands.
2. Contents of Implementation Plan
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
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the proposed Class I area in Wisconsin.
The terms of the agreement are not
appropriate for inclusion into the FIP,
however, because they do not apply to
the effects of the Class I Redesignation.
Rather, the agreement establishes
certain special provisions regarding the
effects of the Class I redesignation on
potential sources outside the
redesignated area. Those provisions
have been summarized by EPA as
follows:
[T]he 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.
71 FR 75696. As these special
provisions differ from Wisconsin’s
currently approved SIP for the PSD
program, for this portion of the FCP
Community—Wisconsin MOA to
become enforceable will require
revision of the Wisconsin SIP, which
otherwise would not recognize a
limitation of the area in which the Class
I increment analysis must be conducted.
EPA takes the position that it
generally will not interfere with the
agreements reached between Tribes and
States through the CAA’s 164(e) dispute
resolution process. However, to the
extent that the agreement reached under
the terms of the MOA allows for
restricting the requirements normally
associated with Class I areas as these
apply to sources located outside a 10mile radius of the redesignated
reservation lands, EPA takes the
position that a revision of the Wisconsin
SIP will be necessary to apply this
provision to potential sources located
outside the boundaries of the
redesignated parcels. Therefore, EPA
disagrees with the State commenter who
argued that a SIP cannot be used in
conjunction with any aspect of a Class
I rulemaking.
EPA received several comments on
language to be used in the
implementation plan. The FCP
Community has stated that EPA has
used out of date language in the
proposed FIP and therefore any FIP
should use the current language for 40
CFR 52.2581. EPA agrees, and this
change is noted in Section III.B. The
FCP Community also states that EPA’s
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proposed FIP leaves ambiguous whether
the provisions of 40 CFR 52.21 would
apply to the redesignated FCP
Community Reservation Class I land.
EPA agrees and has modified the FIP to
make clear that the provisions of the
PSD program apply to the redesignated
reservation lands. This change is also
noted in Section III.B.
F. Air Program Implementation in
Indian Country/Role of Tribes in
Protecting Air Quality
Several commenters argued that EPA
should deny the FCP Community’s
request because if this request is
granted, then other Tribes will be
encouraged to seek Class I redesignation
and could eventually result in a
nationwide blanket of Class I areas. EPA
disagrees. Any redesignation request, by
either a State or Tribe will have to
consider the area of impact in its
technical analysis supporting the
redesignation request. Furthermore, the
CAA does not require a State or Tribe
to project potential future
redesignations or speculate about their
potential, and does not allow EPA to
consider the likelihood of future
redesignations as a basis for a
disapproval under CAA section
164(b)(2). Any future proposed
redesignation will be reviewed on a factspecific basis according to the
applicable regulations.
Other commenters expressed their
view that because State air programs
already address air quality, there is no
need for a Tribe to implement its own
air program, and, additionally, tribal air
programs will unfairly burden existing
state air programs by duplicating or
adding to existing state requirements.
EPA disagrees.
EPA’s authorization of State air
programs does not extend to federally
recognized Indian reservations, which
are excluded from State SIP approvals.
CAA section 164(c) expressly provides
that Tribes are responsible for
redesignating reservations, and that
Tribes can redesignate their lands when
they conclude that the redesignation is
appropriate to protect Reservation air
quality. See TAR, 63 FR 7254, at 7254.
It is Congress, through the CAA, that has
provided Tribes (and States) with the
authority to redesignate certain lands
and to implement programs under CAA
authorities.
The CAA states that ‘‘air pollution
prevention * * * and air pollution
control at the source is the primary
responsibility of States and local
governments * * *’’ and that ‘‘each
State shall have the primary
responsibility for assuring air quality
within the entire geographic area
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comprising such State. * * *’’ 42 U.S.C.
7401(a)(3) and 7407(a). States, however,
are not the exclusive regulating entity
under the CAA.
In the 1990 amendments to the CAA,
Congress amended the CAA to add
sections 110(o) and 301(d), which allow
Tribes to administer many CAA
programs in the same manner as States.
See 59 FR 43956. EPA furthered this
congressional purpose when it
promulgated regulations for
implementation of CAA programs by
Tribes. See 63 FR 7254 (February 12,
1998). These amendments reflect
Congressional recognition that Tribes
should be primarily responsible for
environmental regulations and
decisions that impact reservation
environments.
Nevertheless, redesignation of the
FCP Community lands to Class I will
not require the Tribe to develop any air
quality regulations. Because
northeastern Wisconsin is a designated
Class II area and is an attainment area,
PSD requirements already apply to
sources there. The regulations currently
in place under Wisconsin’s PSD
program already require the owner/
operator of proposed major stationary
sources locating in PSD areas to submit
a permit application containing an
analysis of their air quality impacts and
to install ‘‘best available control
technology’’ to control emissions. See
sections 165(a) and 169(3) of the CAA.
The air quality analysis must show that
the proposed source will not cause or
contribute to a violation of an applicable
PSD increment or a NAAQS, as
demonstrated by air quality modeling.
See 40 CFR 52.21(c) and (d). After
notice and public hearing for a proposed
permit, the permitting authority reviews
the permit application and determines
whether the PSD permit requirements
have been met.
Thus following this rulemaking
granting Class I status to FCP
Community reservation lands, the States
of Wisconsin and Michigan will remain,
for their respective lands, the permitting
authorities for sources located outside
the FPC Community reservation. EPA
will remain the federal permitting
authority for proposed sources locating
within the FCP Community reservation
boundaries until the FCP Community
applies for and receives delegation of
this authority. Until Wisconsin amends
its SIP to specify how the redesignation
of the Reservation as a Class I area will
affect sources in Wisconsin, such
sources will treat the Reservation
identically to the way they would treat
any other Class I area. Sources in
Michigan will treat the Reservation as a
Class I area as they would any other
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Class I area under the FIP that currently
applies to Michigan, and which will not
be altered by this action.
G. Air Quality Related Values of
Redesignated Lands
Commenters challenged the
redesignation on the basis that the
Reservation does not have appropriate
air quality related values. EPA,
however, does not believe those
comments provide any basis for
rejecting the redesignation request.
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). While States
and Tribes ‘‘may redesignate such
[other] areas [within their jurisdiction]
as [they] deem[] appropriate’’, there is
no requirement that states or Tribes
identify AQRVs before proposing to
redesignate an eligible area. See CAA
section 164(a), 40 CFR 52.21(g)(4).
H. Impact of Class I Redesignation on
Minor Sources
Some commenters argue against the
redesignation because they believe that
the economic impact of Class I
redesignation would affect residential,
agricultural, and small businesses and
small business growth in the area or the
State of Wisconsin. EPA disagrees with
this comment. Analyses included in the
FCP Community’s Technical Report
show that only large stationary sources
proposing to locate in close proximity to
the Reservation lands would be affected
by the redesignation and regardless of
whether they are in a Class II or a Class
I area, such major sources are already
required to obtain an air quality permit,
conduct modeling analyses, and use the
best available technology to control
emissions under the PSD program. In
terms of other businesses, the
redesignation will not affect mobile
emission sources such as cars because
no vehicle inspection and maintenance
(smog-check) programs would be
required. In addition, redesignation
would not limit the home use of woodburning stoves, nor would it create
restrictions on controlled forest burning,
or require dirt roads to be paved to
reduce dust and particulates. Thus,
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home and small business owners in
nearby communities should not be
affected by a Class I designation of
Reservation lands. Furthermore and as
explained in Section IV.C, economic
impacts, including impacts on minor
sources, are not within the scope of
EPA’s review when evaluating a
redesignation request.
V. Statutory and Executive Order
Reviews
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A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under the Executive
Order.
However, as part of its application
package for Class I redesignation, the
FCP Community prepared an analysis of
the potential costs and benefits
associated with this action 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. See ‘‘EPA
memorandum dated October 25, 2004’’
in the public docket for this action.
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 sifting 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 the
known proposed developments in the
region would be adversely affected.
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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
final action. However, 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
number 1230.20. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
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.
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 final action on small entities,
small entity is defined as: (1) A small
business as defined by the Small
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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
V.A., 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 Report
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.
For example, air dispersion modeling
and EPA-approved screening performed
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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
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
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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
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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 this final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final 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.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 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
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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
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. In addition, the 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. Thus,
this rule is not subject to the
requirements of sections 202 and 205 of
the UMRA.
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
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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 final 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 are provided in the
public docket of this 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 final
rule establishes federal standards and
will have tribal implications. However,
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23099
it will neither impose substantial direct
compliance costs on tribal governments,
nor preempt Tribal law. Thus,
consistent with section 3 of the
Executive Order, in the process of
developing this final action, EPA
consulted with FCP Community tribal
officials to allow 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 to further their goal
of exercising control over reservation
resources and to better protect the
members of their community. 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 final action. Most recently, EPA
officials held consultations with the
FCP Community between February and
August 2007 to discuss this final action
and to answer the Community’s
questions. 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 final rule is not subject to the
Executive Order because it is not
economically significant as defined in
Executive Order 12866, and the Agency
does not have reason to believe the
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environmental health or safety risks
addressed by this action present a
disproportionate effect on children.
Redesignation of the identified parcels
of the FCP Community Reservation to
Class I status will reduce the allowable
increase in ambient concentrations 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
well documented. Sulfur dioxide, for
example, is known to irritate the
respiratory system. As explained in the
FCP Community’s Technical Support
Document, 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.13 Children and asthmatics are
especially vulnerable to the adverse
health effects of sulfur dioxide.14 If the
Class I redesignation is codified in a
FIP, the allowable increase in ambient
concentrations 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 in ambient
concentrations, thus providing greater
health protection to children from such
air pollutants.
Likewise, the allowable increase in
ambient concentrations of 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,
13 SO —How Sulfur Dioxide Affects the Way We
2
Live & Breathe. U.S. EPA Office of Air Quality
Planning & Standards (November 2000) (available at
https://www.epa.gov/air/urbanair/so2/).
14 Health and Environmental Impacts of SO
2
(September 30, 2003) (available at https://
www.epa.gov/air/urbanair/so2/hlth1.html).
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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.15 Adverse health effects from
particulate matter are often cumulative
and progressive, worsening as
particulates gradually collect in the
lungs following repeated, long-term
exposure.16
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 lung.17 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 ambient
concentrations of 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
15 Health and Environmental Impacts of PM (30
September 2003) (available at https://www.epa.gov/
air/urbanair/pm/hlth1.html).
16 PM—Chief Causes for Concern (30 September
2003) (available at https://www.epa.gov/air/
urbanair/pm/chf.html).
17 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
https://www.air.dnr.state.ga.us/information/
pm25.html).
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not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
As noted in the proposed rule,
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
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 action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it
increases the level of environmental
protection for all affected populations
without having any disproportionately
high and adverse human health or
environmental effects on any
population, including any minority or
low-income population.
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 in ambient
concentrations of various types of
pollutants. Consequently, this
redesignation should result in health
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benefits to tribal members and members
of the surrounding communities.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). Therefore,
this rule will be effective May 29, 2008.
VII. Statutory Authority
The statutory authority for this final
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,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxides, Volatile
organic compounds.
Dated: April 18, 2008.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble,
part 52, chapter I, of title 40 of the Code
of Federal Regulations is amended as
follows:
I
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
I
Authority: 42 U.S.C. 7401 et seq.
Subpart YY—Wisconsin
2. Section 52.2581 is amended by
adding paragraph (f) to read as follows:
I
§ 52.2581
quality.
Significant deterioration of air
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*
*
*
*
*
(f) Forest County Potawatomi
Community Reservation.
(1) The provisions for prevention of
significant deterioration of air quality at
40 CFR 52.21 are applicable to the
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Forest County Potawatomi Community
Reservation, pursuant to § 52.21(a).
(2) In accordance with section 164 of
the Clean Air Act and the provisions of
40 CFR 52.21(g), those parcels of the
Forest County Potawatomi Community’s
land 80 acres and over in size which are
located in Forest County are designated
as a Class I area for the purposes of
prevention of significant deterioration of
air quality. For clarity, the individual
parcels are described below, all
consisting of a description from the
Fourth Principal Meridian, with a
baseline that is the Illinois-Wisconsin
border:
(i) Section 14 of Township 36 north
(T36N), range 13 east (R13E).
(ii) Section 26 of T36N R13E.
(iii) The west half (W1⁄2) of the east
half (E1⁄2) of Section 27 of T36N R13E.
(iv) E1⁄2 of SW1⁄4 of Section 27 of
T36N R13E.
(v) N1⁄2 of N1⁄2 of Section 34 of T36N
R13E.
(vi) S1⁄2 of NW1⁄4 of Section 35 of
T36N R13E.
(vii) Section 36 of T36N R13E.
(viii) Section 2 of T35N R13E.
(ix) W1⁄2 of Section 2 of T34N R15E.
(x) Section 10 of T34N R15E.
(xi) S1⁄2 of NW1⁄4 of Section 16 of
T34N R15E.
(xii) N1⁄2 of SE1⁄4 of Section 20 of
T34N R15E.
(xiii) NW1⁄4 of Section 28 of T34N
R15E.
(xiv) W1⁄2 of NE1⁄4 of Section 28 of
T34N R15E.
(xv) W1⁄2 of SW1⁄4 of Section 28 of
T34N R15E.
(xvi) W1⁄2 of NE1⁄4 of Section 30 of
T34N R15E.
(xvii) SW1⁄4 of Section 2 of T34N
R16E.
(xviii) W1⁄2 of NE1⁄4 of Section 12 of
T34N R16E.
(xix) SE1⁄4 of Section 12 of T34N
R16E.
(xx) E1⁄2 of SW1⁄4 of Section 12 of
T34N R16E.
(xxi) N1⁄2 of Section 14 of T34N R16E.
(xxii) SE1⁄4 of Section 14 of T34N
R16E.
(xxiii) E1⁄2 of Section 16 of T34N
R16E.
(xxiv) NE1⁄4 of Section 20 of T34N
R16E.
(xxv) NE1⁄4 of Section 24 of T34N
R16E.
(xxvi) N1⁄2 of Section 22 of T35N
R15E.
(xxvii) SE1⁄4 of Section 22 of T35N
R15E.
(xxviii) N1⁄2 of SW1⁄4 of Section 24 of
T35N R15E.
(xxix) NW1⁄4 of Section 26 of T35N
R15E.
(xxx) E1⁄2 of Section 28 of T35N R15E.
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
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(xxxi) E1⁄2 of NW1⁄4 of Section 28 of
T35N R15E.
(xxxii) SW1⁄4 of Section 32 of T35N
R15E.
(xxxiii) E1⁄2 of NW1⁄4 of Section 32 of
T35N R15E.
(xxxiv) W1⁄2 of NE1⁄4 of Section 32 of
T35N R15E.
(xxxv) NW1⁄4 of Section 34 of T35N
R15E.
(xxxvi) N1⁄2 of SW1⁄4 of Section 34 of
T35N R15E.
(xxxvii) W1⁄2 of NE1⁄4 of Section 34 of
T35N R15E.
(xxxviii) E1⁄2 of Section 36 of T35N
R15E.
(xxix) SW1⁄4 of Section 36 of T35N
R15E.
(xl) S1⁄2 of NW1⁄4 of Section 36 of
T35N R15E.
(xli) S1⁄2 of Section 24 of T35N R16E.
(xlii) N1⁄2 of Section 26 of T35N R16E.
(xliii) SW1⁄4 of Section 26 of T35N
R16E.
(xliv) W1⁄2 of SE1⁄4 of Section 26 of
T35N R16E.
(xlv) E1⁄2 of SW1⁄4 of Section 30 of
T35N R16E.
(xlvi) W1⁄2 of SE1⁄4 of Section 30 of
T35N R16E.
(xlvii) N1⁄2 of Section 34 of T35N
R16E.
[FR Doc. E8–8946 Filed 4–28–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–1188; FRL–8559–5]
Approval and Promulgation of Air
Quality Implementation Plans;
Delaware; Control of Stationary
Generator Emissions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is approving a State
Implementation Plan (SIP) revision
submitted by the State of Delaware. This
SIP revision contains provisions to
control emissions from stationary
generators. EPA is approving this SIP
revision in accordance with the Clean
Air Act (CAA).
DATES: Effective Date: This final rule is
effective on May 29, 2008.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2007–1188. All
documents in the docket are listed in
the https://www.regulations.gov Web
site. Although listed in the electronic
docket, some information is not publicly
E:\FR\FM\29APR1.SGM
29APR1
]]>Agencies
[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Rules and Regulations]
[Pages 23086-23101]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8946]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2004-WI-0002; FRL-8557-6]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; Redesignation of the Forest County Potawatomi Community
Reservation to a PSD Class I Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final action, EPA is approving the request by the
Forest County Potawatomi Community's (FCP Community) Tribal Council to
redesignate certain portions of the FCP Community Reservation as a non-
Federal Class I area under the Clean Air Act (Act or CAA) program for
the Prevention of Significant Deterioration (PSD) of air quality. These
regulations are designed to preserve the air quality in national parks
and other areas that are meeting the National Ambient Air Quality
Standards (NAAQS). The Class I designation will result in lowering the
allowable increases in ambient concentrations of particulate matter,
sulfur dioxide, and nitrogen dioxide on the Reservation.
DATES: This final rule is effective on May 29, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2004-WI-0002. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through https://www.regulations.gov or in hard copy at
the Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507. This
Facility is open from 8:30 a.m. to 4:30 p.m. Central Standard Time,
Monday through Friday, excluding legal holidays. We recommend that you
telephone Constantine Blathras at 312-886-0671 before visiting Region
5's office. Hard copies of these docket materials are also available in
the EPA Headquarters Library, Room Number 3334 in the EPA West
Building, located at 1301 Constitution Ave., NW, Washington, DC. The
EPA/DC Public Reading Room hours of operation will be 8:30 a.m. to 4:30
p.m. Eastern Standard Time (EST), Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permits
Section, Air Programs Branch (AR-18J), Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507;
telephone number: 312-886-0671; fax number: 312-886-5824; e-mail
address: blathras.constantine@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
[[Page 23087]]
I. General Information
A. Does This Action Apply to Me?
This action will apply to applicants to the PSD construction permit
program on Class I trust lands of the FCP Community.
B. Where Can I Obtain Additional Information?
In addition to being available in the docket, an electronic copy of
this final rule is also available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this final rule will be
posted on the EPA's New Source Review (NSR) Web site, under Regulations
& Standards, at https://www.epa.gov/nsr/actions.html.
C. How Is This Action Organized?
The information presented in this action is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. Where Can I Obtain Additional Information?
C. How is this Action Organized?
II. Background
A. The Clean Air Act Prevention of Significant Deterioration
(PSD) Program and Class I Area Redesignations
B. The Forest County Potawatomi Community Redesignation Request
III. Overview of This Final Action
A. What We Proposed
B. Final Action and Differences From Proposal
IV. Basis for Final Action
A. Class I Redesignation Requirements
1. EPA's Interpretation of Section 164 of the Clean Air Act
B. Lands Suitable for Redesignation
C. EPA's Role in Evaluating Class I Redesignations
D. Impact of Dispute Resolution on Redesignation
E. Appropriate Mechanism for Codifying Class I Area
1. Role of Federal Implementation Plans (FIP)
2. Contents of Implementation Plan
F. Air Program Implementation in Indian Country/Role of Tribes
in Protecting Air Quality
G. Air Quality Related Values (AQRVs) of Redesignated Lands
H. Impact of Class I Redesignation on Minor Sources
V. 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. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
VII. Statutory Authority
II. Background
A. The Clean Air Act Prevention of Significant Deterioration (PSD)
Program and Class I Area Redesignations
The CAA provides a comprehensive structure for ``protect[ing] and
enhanc[ing] the quality of the Nation's air resources[.]'' See section
101(b) of the CAA. The basis of the CAA's regulatory structure is the
NAAQS, which specify the maximum permissible concentrations of certain
pollutants in the ambient air. See section 108 and 109 of the CAA.
Furthermore, Part C of Title I of the CAA provides for the prevention
of significant deterioration of air quality. The PSD program sets forth
procedures for the preconstruction review and permitting of new and
modified major stationary sources of air pollution locating in areas
meeting the NAAQS, i.e., ``attainment'' areas, or in areas for which
there is insufficient information to classify an area as either
attainment or nonattainment, i.e., ``unclassifiable'' areas. These
areas are referred to as ``PSD areas.'' See section 165(a) of the CAA.
``Major stationary sources'' are large industrial sources which emit or
have the potential to emit 250 tons per year (tpy) or more of a
regulated air pollutant (100 tpy or more if the source falls in one of
28 specified categories). See 40 Code of Federal Regulations (CFR)
section 52.21(b). The applicability of the PSD program to a particular
source must be determined in advance of construction, and it is
pollutant specific. To obtain a PSD permit, a major stationary source
must install the ``best available control technology'' (BACT) to
control emissions of regulated pollutants emitted in significant
amounts. See section 165(a)(4) and section 169(3) of the CAA; 40 CFR
52.21(j). PSD permits also require the source to demonstrate that it
will not contribute to a violation of the NAAQS or applicable PSD
increments (the maximum allowable air quality deterioration allowed in
a PSD area). See section 165(a)(3).
The CAA provides three basic classifications for PSD areas: Class
I, II and III. For each classification, the PSD regulations establish
the incremental amount of air quality deterioration allowed. However
and in all cases, the NAAQS set the maximum allowable concentration
levels of certain pollutants that may not be exceeded in a PSD area,
irrespective of any increment. Increments have been established for
three pollutants--Particulate Matter (PM10), Sulfur Dioxide
(SO2) and Nitrogen Dioxide (NO2)--and for a
variety of averaging periods, which correspond to the averaging periods
for the NAAQS for those pollutants. See 40 CFR 52.21(c). Class I areas
include national parks greater than 6,000 acres in size, national
wilderness areas greater than 5,000 acres in size and other natural
areas of special concern; the smallest increments are specified for
those areas. In addition, when Congress enacted the PSD program in
1977, it provided that these areas may not be redesignated to another
classification. See section 162(a) of the CAA. Class II applies to
areas in which pollutant increases accompanying moderate growth are
allowed. Under the 1977 amendments to the CAA, all areas, other than
the mandatory Federal Class I areas were initially designated as Class
II PSD areas. However, States and Tribes have the authority to
redesignate Class II areas to Class I to provide additional air quality
protection and some Tribes have done so.\1\ Class III applies to those
areas in which more air quality deterioration is considered acceptable.
States and Tribes have the authority also to redesignate Class II areas
to Class III to promote development, but to date; none have chosen to
do so.
---------------------------------------------------------------------------
\1\ These are the Northern Cheyenne Reservation, the Flathead
Indian Reservation, the Fort Peck Indian Reservation, and the
Spokane Indian Reservation. See 40 CFR 52.1382(c), 52.2497(c), and
52.144(c).
---------------------------------------------------------------------------
The CAA directs the Secretary of the Interior, or other appropriate
Federal land manager, to review other Federal lands and recommend for
redesignation to Class I any appropriate areas ``where air quality
related values (AQRVs) are important attributes of the area.'' See
section 164(d) of the CAA. The Act does not define AQRVs nor identify
specific AQRVs other than visibility (See section 165(d)(2)(B) of the
Act), but in the legislative history to the Act, AQRVs are described as
follows:
The term ``air quality related values'' of Federal lands
designated as Class I includes the fundamental purposes for which
such lands have been established and preserved by the Congress and
the responsible Federal agency. For example, under the 1916 Organic
Act to establish the National Park Service (16
[[Page 23088]]
U.S.C. 1), the purpose of such national park lands ``is to conserve
the scenery and the natural historic objects and the wildlife
therein and to provide for the enjoyment of the same in such manner
and by such means as will leave them unimpaired for the enjoyment of
future generations.''
Nevertheless, Class I status is not reserved for special Federal
areas alone. Section 164 of the CAA provides to States and Indian
governing bodies the ultimate authority to reclassify any lands within
their borders as Class I. The CAA specifies that ``a State may
redesignate such areas as it deems appropriate as Class I areas.'' See
section 164(a) of the CAA. Tribes have similar authority to redesignate
``lands within the exterior boundaries of reservations.''
The procedural requirements for a Class I redesignation by a Tribe
are set out in section 164(c) of the CAA and are further defined in the
implementing regulations at 40 CFR 52.21(g)(4). These provisions
explain the steps a Tribe needs to follow to request redesignation of
reservation lands. The EPA Administrator may disapprove a redesignation
request only if the Administrator finds that the proposal did not meet
the procedural requirements or was inconsistent with the CAA. See 42
U.S.C. 164(b)(1)(C)(2).
B. The Forest County Potawatomi Community Redesignation Request
The FCP Community is a federally recognized Indian Tribe recognized
by a congressional Act of June 23, 1913 (38 Stat. 102). The 1913 Act
provided that 11,786 acres of non-contiguous land purchased by the
Federal government would be set aside for the purpose of making
allotments to the Wisconsin Potawatomi Indians (which included the FCP
Community). While the lands were purchased for making allotments, no
allotments were ever made due to changes in Federal allotment policies.
Thus, title to the land remained with the United States until 1988,
when Congress passed legislation to place the land in trust for the FCP
Community, and to recognize explicitly all of these lands as belonging
to the FCP Community.\2\ The majority of the FCP Community's
reservation lands are located in Forest County, Wisconsin, with the
remaining acreage located in six neighboring townships.
---------------------------------------------------------------------------
\2\ On August 6, 1987, the Senate enacted Bill 1602 which
declared that the trust lands that had been purchased pursuant to 38
Stat. 102 are ``hereby declared to be the reservation of the Forest
County Potawatomi Community of Wisconsin.''
---------------------------------------------------------------------------
The FCP Community is downwind of key areas of industrial
development. The reservation is located in the North Central Wisconsin
Intra-State Air Quality Control Region 238. Land in the
northern counties of this region is mostly forested. Lands south of
Madison County in this region are mostly agricultural. Population and
industry is concentrated southwest and west of the reservation, in the
areas of Wausau, Stevens Point, Wisconsin Rapids, and Rhinelander. At
present, Forest County itself has little industrial development, and
the CAA's PSD minor source baseline date, which is the date on which
the first complete application for a PSD permit is filed in a
particular area, has not been triggered. Thus, at this time, there has
been no PSD increment consumption in this area.
On February 14, 1995, the FCP Community submitted its formal
request for redesignation to EPA's Region 5 office. FCP Community's
redesignation request proposes to reclassify as Class I those trust
parcels of 80 acres or more located in Forest County. See Notice of
Proposed Rulemaking, 60 FR 33779 (June 29, 1995). A list of these
parcels can be found in the codification section of this notice labeled
Subpart YY-Wisconsin, Forest County Potawatomi Reservation (b). The FCP
Community explained its reasons for requesting redesignation as
follows:
``* * * the Forest County Potawatomi Community respects Mother
Earth, and is aware of clean air as being a valuable resource that
all living things depend upon to exist, and, * * * the Forest County
Potawatomi Community wish to continue to strive towards self-
determination, which will be strengthened by codes and land use
plans that are compatible with their renewable resources and
culture, and, * * * the present level of protection given to the
Forest County Potawatomi air resource does not provide the level of
protection the Tribe wishes to give their air, which they want to
maintain as very pristine. * * *'' See Technical Report at 2.
The FCP Community reaffirmed these reasons in comments submitted to EPA
on April 27, 2007, by citing the unique history of the reservation and
FCP Community, the location of the headwaters of several wild and
scenic rivers in the area, the importance of fish as a nutritional and
recreational resource, the location of key wetlands in the area, the
FCP Community's desire to protect and restore Devil's Lake, and the
designation of portions of the area including the FCP Community
Reservation and surrounding areas as eligible for listing in the
National Historic Register as ``Traditional Cultural Property.'' A
Traditional Cultural Property is one that meets the criteria for
listing in the National Register and which has an ``association with
cultural practices or beliefs of a living community,'' as rooted in
that community's history and which is important because of its role in
maintaining the continuing cultural identity of the community.\3\
---------------------------------------------------------------------------
\3\ Jeff Crawford, Forest County Potawatomi Attorney General,
``Comments Regarding U.S. Environmental Protection Agency's proposed
Federal Implementation Plan under the Clean Air Act for Certain
Trust Lands of the FCP Community if Designated as a PSD Class I
Area'' [hereafter FCP 2007 Comments], April 2007, at 3-10.
---------------------------------------------------------------------------
Additionally, the FCP Community described the central importance of
``purity'' to its cultural and spiritual practices, where natural
resources ``must be drawn from spiritually pure natural environments.
Concern about access to these resources and the ability of the
environment to provide the pure resources needed to sustain Potawatomi
culture occupies the thoughts and prayers of the community.'' FCP
Community member Jim Thunder, stated: ``Today we are abusing our Mother
Earth. Our air, water and soil are polluted. We are told not to eat
fish out of certain streams and lakes. I pray to our creator that we
look back so that we may see ahead. Let us examine our lives so that we
are respectful to our fellow humans and to nature. Let us respect our
children and, above all, let us live our lives in accordance with our
beliefs.'' \4\
---------------------------------------------------------------------------
\4\ Id. at 10.
---------------------------------------------------------------------------
Finally, the FCP Community also explains that clean air is
important to the Tribal enterprises and economy of the Tribe, and to
the northern Wisconsin area, where recreation and tourism are a primary
component of the economic base and a key projected component of
economic growth for the Tribe and for the region.\5\
---------------------------------------------------------------------------
\5\ ``Tourism in these seven counties [Forest, Oneida, Florence,
Langlade, Marinette and Oconto] grew by 117% between 1994 and 2005
compared to 107% for Wisconsin as a whole [citation omitted]. In
2005 in these seven counties, the $715 million spent by tourists
created some 18,005 equivalent full-time jobs and generated some
$23.2 million in revenue for local governments through such means as
property taxes, sales taxes, lodging taxes, and so forth [citation
omitted].'' Id. at 14.
---------------------------------------------------------------------------
III. Overview of This Final Action
EPA is taking final action on its evaluation of the FCP Community's
Tribal Council request to redesignate certain portions of the FCP
Reservation as a non-Federal Class I area under the CAA program for the
prevention of significant deterioration of air quality. We have decided
to approve this request. The Class I designation will result in
lowering the allowable increases in ambient concentrations of PM,
SO2, and NOX on the Reservation.
[[Page 23089]]
A. What We Proposed
On June 29, 1995, and July 10, 1997, EPA proposed to approve a
request by the FCP Community Tribal Council to redesignate lands within
the FCP Community Reservation in the State of Wisconsin to Class I
under EPA's regulations for prevention of significant deterioration of
air quality (60 FR 33779, 62 FR 37007). The Class I designation will
result in lowering the allowable increases in ambient concentrations of
PM, SO2, and NOX on certain of the FCP
Community's lands.
On December 18, 2006, EPA proposed that it would promulgate a
Federal Implementation Plan (FIP) if it approves FCP Community's
request, with the FIP to be implemented by EPA unless or until it is
replaced by a Tribal Implementation Plan (TIP).
B. Final Action and Differences From Proposal
In this final action, we are approving FCP's Community request to
redesignate certain reservation lands to Class I status. EPA finds that
the FCP Community has met the applicable procedural requirements and
thus its redesignation request must be approved.
However, we are amending, based on comments received, the language
proposed in the December 18, 2006, rulemaking, which had stated in
pertinent part the following modification to the FIP for the PSD
program in Wisconsin:
(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. * *
*
(8) Section 2 of T36N R13E* * *
(26) N\1/2\ of Section 22 of T35N R16E* * *
(27) SE\1/4\ of Section 22 of T35N R16E* * *
First of all, the FCP Community noted that the draft language was
not based on the current language for 40 CFR 52.2581, which provides:
(e) Regulations for the prevention of significant deterioration
of air quality. The provisions of Sec. 52.21 except paragraph
(a)(1) 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.
EPA agrees and for that reason the current language should be the
starting point to any modification of this provision.
Second, the FCP Community stated that EPA's proposed FIP language
``creates ambiguity regarding whether the requirements of 40 CFR 52.21
apply to the FCP Community's Reservation.'' \6\ EPA intends that the
requirements of 40 CFR 52.21 apply to the parcels redesignated as Class
I, and has modified the proposed FIP language accordingly to remove the
phrase ``except as specified in paragraph (f) of this section. The
revised rulemaking text is as follows:
\6\ FCP Comment letter, 2007, at 31.
---------------------------------------------------------------------------
(e) Regulations for the prevention of significant deterioration
of air quality. The provisions of Sec. 52.21 except paragraph
(a)(1) 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.
(f) Forest County Potawatomi Community Reservation.
(1) The provisions for prevention of significant deterioration
of air quality at 40 CFR 52.21 are applicable to the Forest County
Potawatomi Community Reservation, pursuant to Sec. 52.21(a).
(2) In accordance with section 164 of the Clean Air Act and the
provisions of 40 CFR 52.21(g), those parcels of the Forest County
Potawatomi Community's land 80 acres and over in size which are
located in Forest County are designated as a Class I area for the
purposes of prevention of significant deterioration of air quality.
For clarity, the individual parcels are listed in 40 CFR
52.2581(f)(2).
Finally, the FCP Community has commented that the three parcels,
numbers 8, 26, and 27 have been incorrectly identified either in the
description of lands provided in the Tribe's letter of February 24,
1998, or in EPA's list of parcels proposed for redesignation published
in the December 18, 2006, proposed rulemaking. These lands are,
however, correctly identified on the December 13, 1994, S. Funk map
provided by the Tribe with its redesignation request. This map was
specifically reviewed by the Bureau of Indian Affairs, Minneapolis
District office, which certified that the lands marked for proposed
redesignation are lands held in trust for the Tribe. Letter from Robert
Jaeger, Superintendent, Bureau of Indian Affairs to David Kee,
Director, Region 5 Air and Radiation Division on April 16, 1998. This
map has been available for public notice and comment during the
pendancy of this rulemaking. Accordingly, EPA has corrected the legal
description of parcel numbers 8, 26, and 27 in the list of lands
redesignated to Class I pursuant to today's action.
IV. Basis for Final Action
A. Class I Redesignation Requirements
EPA is taking this action in accordance with the requirements of
section 164 of the CAA. In section 164 of the Act, Congress provides
States and Tribes the ultimate authority to reclassify any lands within
their borders as Class I based on the following statutory and
regulatory requirements:
(1) At least one public hearing must be held in accordance with
procedures established in 40 CFR 51.102. See 40 CFR 52.21(g)(2)(i).
(2) Other States, Indian Governing Bodies, and Federal Land
Managers whose lands may be affected by the proposed redesignation must
be notified at least 30 days prior to the public hearing. See 40 CFR
52.21(g)(2)(ii).
(3) At least 30 days prior to the Tribe's public hearing, a
discussion of the reasons for the proposed redesignation including a
satisfactory description and analysis of the health, environmental,
economic, social and energy effects of the proposed redesignation must
be prepared and made available for public inspection. See 40 CFR
52.21(g)(2)(iii).
(4) Prior to the issuance of the public notice for a proposed
redesignation of an area that includes Federal lands, the Tribe must
provide written notice to the appropriate Federal Land Manager and
afford an adequate opportunity for the Federal Land Manager to confer
with the Tribe and submit written comments and recommendations. See 40
CFR 52.21(g)(2)(iv).
(5) The proposal to redesignate has been made after consultation
with the elected leadership of local and other substate general purpose
governments in the area covered by the proposed redesignation. See 40
CFR 52.21(g)(2)(v).
(6) Prior to proposing the redesignation, the Indian Governing Body
must consult with the State(s) in which the Reservation is located and
that border the Reservation. See 40 CFR 52.21(g)(4)(ii).
(7) Following completion of the procedural steps and consultation,
the Tribe submits to the Administrator a proposal to redesignate the
area. See 40 CFR 52.21(g)(4).
1. EPA's Interpretation of Section 164 of the Clean Air Act
In addition to reiterating the CAA section 164 requirements, the
following discussion identifies the actions taken
[[Page 23090]]
by the FCP Community to fulfill those requirements and clarifies our
interpretation of the requirements in light of several comments we
received.
1. At least one public hearing must be held in accordance with
procedures established in 40 CFR 51.102. See 40 CFR 52.21(g)(2)(i).
The regulations require that a public hearing on a proposed
redesignation be conducted in accordance with 40 CFR 51.102, which
requires the following: A minimum of 30 days notice, ``prominent
advertisement'' regarding the hearing in the affected area,
availability of plans; notification to the EPA Administrator, local air
pollution authorities, and preparation of a record of the proceedings.
See 40 CFR 51.102(a)-(f).
The FCP Community held a public hearing on the proposed
redesignation on September 29, 1994, at the Potawatomi Tribal Hall, in
Crandon, Wisconsin. The FCP Community's redesignation request included
a certification that the hearings were held in compliance with
applicable notice requirements, including adequate notice to
appropriate local, State and Federal entities, as well as public
hearing requirements. A transcript of the hearing, notices (including
copies of advertisements), letter invitations, copies of comments
received, a transcript of the hearing, and response to comments was
included in the FCP application for redesignation. Accordingly, EPA
finds that the hearing held by the FCP Community was adequate.
2. Other States, Indian Governing Bodies, and Federal Land Managers
whose lands may be affected by the proposed redesignation must be
notified at least 30 days prior to the public hearing. See 40 CFR
52.21(g)(2)(ii).
The FCP Community held its public hearing on September 29, 1994.
Notices of the public hearing, as well as notification of the public
comment period and copies of supporting documents, were sent to dozens
of governmental entities and interest groups in a letter dated August
26, 1994. Entities noticed included EPA Region 5, the States of
Wisconsin and Michigan \7\ (even though the lands covered by the
redesignation lie wholly within Forest County, Wisconsin), the Bureau
of Indian Affairs, the U.S. Fish and Wildlife Service; nine Wisconsin
Tribal governments; nineteen counties and townships; local planning
commissions in Wausau, Eau Claire, and Green Bay, Wisconsin; and, many
other organizations. The FCP Community also published notices of the
September 29, 1994, public hearing in four local newspapers, which ran
between August 29, 1994 and September 1, 1994. Representatives from
many of these governmental entities and organizations provided comments
at the hearing or in writing. The FCP Community responded to these and
other comments received from private individuals and commercial
entities in its February 1995 ``Responses to Common Questions and
Issues in Written Comments on the Proposed Forest County Potawatomi
Community PSD Class I Area Redesignation,'' Technical Report at
Appendix A. For a copy of this document, please visit the public docket
of this rulemaking.
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\7\ EPA examined correspondence between the Tribe and the State
of Michigan and confirmed that the State received timely
notification of the public hearing.
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In light of the outreach, public notice, opportunity for comment,
and information distributed by the FCP Community in preparation for
making their request to EPA for redesignation, EPA finds that the FCP
Community provided adequate opportunity for notice, comment, and
consultation.
3. At least 30 days prior to the Tribe's public hearing, a
discussion of the reasons for the proposed redesignation including a
satisfactory description and analysis of the health, environmental,
economic, social and energy effects of the proposed redesignation must
be prepared and made available for public inspection. See 40 CFR
52.21(g)(2)(iii).
Section 164(b)(1)(A) of the CAA requires that a State or Tribe
prepare for public comment a ``satisfactory description and analysis of
the health, environmental, economic, social, and energy effects of the
proposed redesignation.'' However, neither the CAA nor EPA regulations
define ``satisfactory description and analysis,'' as that term is used
in CAA section 164(b) and 40 CFR 52.21(g)(2). In construing its
meaning, EPA considered Congressional intent that EPA's review of a
``description and analysis'' be deferential. In addition, EPA
considered the question: ``Satisfactory to whom?'' Many commenters
argued that the Tribe's request should be denied because they were
unsatisfied with the level of documentation in the Tribe's application
regarding economic impacts and whether the Tribe had sufficiently
demonstrated that Class I redesignation would not have an adverse
economic impact on surrounding areas, be they local communities,
adjacent states, or states across the nation. EPA disagrees.
In enacting section 164(b), it is clear that Congress intended to
entrust EPA with the authority to set a deferential standard for
``satisfactory description and analysis.'' Thus, EPA stated in its
final rule on the Yavapai Apache Class I redesignation that: ``[The use
of the word ``satisfactory''] in the statute and implementing
regulations suggests a relatively low threshold. Congress did not
dictate that the analysis be comprehensive or exhaustive. Further, the
statutory language does not assign any specific weight to the
consideration of health, environmental economic, social or energy
effects, or suggest that one consideration should be given priority
over another. * * * See ``Arizona Redesignation of the Yavapai Apache
Reservation to a PSD Class I Area,'' 61 FR 56461-56464 (November 1,
1996).
Therefore, there is no requirement that a State or Tribe conduct a
balancing test of the costs and benefits of a redesignation request,
nor that the various factors to be considered in its analysis need to
be balanced against one another. EPA has taken the position that the
fact that no weight or priority is assigned to any particular factor,
taken together with the broad redesignation discretion conferred on
States and Tribes, indicates that the Tribe does not have to justify or
overcome a balancing test in its redesignation request or show that a
proposed redesignation will have no impact on the surrounding
community.
Legal precedent clearly supports EPA's interpretation. In Nance v.
EPA, 645 F.2d 701 (9th Cir. 1981), petitioners claimed that the
Northern Cheyenne Tribe's analysis was inadequate in several respects.
However, the Ninth circuit court rejected the claim that the Tribe was
required to meet exacting analysis requirements and held that the Tribe
had considered the factors identified in EPA's regulations. Nance v.
EPA, 645 F.2d at 712. EPA's decision in this case was upheld under the
far more exacting pre-1977 regulatory regime that expressly provided
for an analysis that included consideration of growth anticipated,
regional impacts, and social, environmental and economic effects as
well as stricter EPA scrutiny of the analysis.
Moreover, the court found that the Tribe's decision was supported
and strengthened by the policy for maintaining clean air embodied in
the CAA:
[T]he Clean Air Act contains a strong presumption in favor of
the maintenance of clean air, and the nature of a decision which
simply requires that the air quality be maintained at a certain
level prevents any exact prediction of its consequences. The Tribe
has considered the factors enumerated in EPA regulations, and its
choice in favor of the certainty of clean air is a choice
[[Page 23091]]
supported by the preferences embodied in the Clean Air Act.
Nance v. EPA, 645 F.2d at 712.
In another case regarding the approval of a redesignation request,
in this case for the Yavapai Apache Tribe (See Administrator, State of
Arizona v. EPA, 151 F.3d at 1211, 9th Cir. 1998, hereafter Arizona v.
EPA), the Ninth Circuit also deferred to EPA's conclusion that the
existing statutory requirement of a ``satisfactory description and
analysis'' is a relatively low threshold. The court explained that the
1977 CAA amendments to the PSD provisions, which are still in the
statute, changed previous law by eliminating EPA's previous authority
to override a classification by a local government on the basis that
the local government did not properly weigh energy, environment, and
other factors. Arizona v. EPA at 151 F.3d at 1211 (citing legislative
history). Moreover, EPA's role in reviewing redesignation requests is
so limited it cannot disapprove a request unless it finds that the
redesignation ``does not meet the procedural requirements'' of the Act,
CAA Section 164(b)(2); this statutory limitation provides no support
for the commenters' suggestion that EPA has broad authority to review
the quality of the ``description and analysis'' much less to disapprove
a redesignation unless the description and analysis are
``satisfactory.''
For those reasons, EPA finds that the FCP Community met the
statutory requirement to provide a ``satisfactory description and
analysis.'' Nevertheless, many commenters argued that the Tribe's
request should be denied because they were unsatisfied with the level
of documentation in the Tribe's application regarding economic impacts
and whether the Tribe had sufficiently demonstrated that Class I
redesignation would not have an adverse economic impact on surrounding
areas, be they local communities, adjacent states, or states across the
nation.\8\
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\8\ FCP 2007 Comments, at 15.
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As discussed previously, neither the CAA nor its implementing
regulations require a State or Tribe to assess the impact of a proposed
redesignation on areas outside the lands proposed for redesignation,
nor to demonstrate that a request for redesignation would not impact
these areas. Nevertheless, the FCP Community's application for
redesignation contained information to show that the Tribe had examined
the existing economy of the region and analyzed the potential impact of
Class I redesignation on the existing and future projected economic
growth in the region, concluding that ``The development of large
industrial projects will very likely be effected [sic] more by economic
viability, external market conditions, and other existing local
environmental and land use restrictions than by the Class I
redesignation.'' \9\
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\9\ Technical Report, included in Application, at 56.
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Furthermore, supplemental information submitted by the FCP
Community in June 1995, contained an additional analysis showing that
the anticipated (at that time) PSD caliber sources planning to
construct or expand, as well as projected area economic growth, would
not be adversely impacted by the proposed Class I area. The analysis
concluded that ``Class I redesignation will not effect the operations
of any existing industry because the PSD program only effects the
development of new air pollutant sources.'' Therefore, the Technical
Report concluded, ``The redesignation will not result in the loss of
any existing jobs, nor in the ``downsizing'' or closing of any existing
businesses. It will only require major new development projects to
analyze the effects of and control the emission of air pollutants, so
that the existing air quality remains clean [emphasis in original].''
\10\
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\10\ Technical Report at 55. Supplemental information submitted
by the FCP Community in its 2007 comments on the proposed FIP
provided additional information to show that economic development
did not slow or decrease near Class I areas.
---------------------------------------------------------------------------
Moreover, the Tribe prepared a Technical Report and released it for
public comment in advance of its public hearing. This Technical Report
examines the environmental, health, economic, social and energy effects
of the proposed redesignation both on and off FCP Community reservation
lands. The analysis includes a survey of present conditions and
presents projected impacts of redesignation on health, employment, and
natural resources, including the project impacts to aquatic, forest and
wetlands ecosystems; and to fish and wildlife populations. The FCP
Community's Technical Report also provides a discussion of the
projected effects of redesignating the FCP Community Reservation lands
to Class I and the effects of remaining Class II.
Additionally, although there is no statutory obligation to identify
AQRVs prior to seeking redesignation, the FCP Community's Technical
Report and a supplementary support document dated June 14, 1995,
provide the FCP Community's analysis of potential impacts of the two
AQRVs identified (mercury deposition and acid rain) in the context of
the health, environmental, energy, economic, and social factors
analysis, both for lands subject to the redesignation request, and
those located outside the proposed area. The Technical Report notes in
several instances that adverse impacts on AQRVs, which occur at
concentrations lower than Class I increments, might pose an additional
restriction on the sitting of large projects.
In conclusion, upon review of the documentation submitted by the
FCP Community, EPA finds that the FCP Community has fully met the
requirement in CAA section 164(b)(1)(A) and 40 CFR 52.21(g)(2)(iii) to
provide a ``satisfactory description and analysis of the health,
environmental, economic, social, and energy effects of the proposed
redesignation.''
4. Prior to the issuance of the public notice for a proposed
redesignation of an area that includes Federal lands, the Tribe must
provide written notice to the appropriate Federal Land Manager (FLM)
and afford an adequate opportunity for the FLM to confer with the Tribe
and submit written comments and recommendations. See 40 CFR
52.21(g)(2)(iv).
In addition to consultation undertaken by the FCP Community with
Federal, State, and local agencies, the FCP Community consulted
directly with the Bureau of Indian Affairs (BIA) regarding FLM
responsibilities. After those consultations, the BIA informed the FCP
Community of that Agency's support of the Class I redesignation request
and that Agency's view that the Tribe would be the appropriate land
manager for the lands subject to the redesignation request.\11\ EPA
finds, accordingly, that the Tribe has satisfied this requirement.
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\11\ Letter from Acting Superintendent Robert C. Ford, Great
Lakes Agency, Bureau of Indian Affairs, U.S. Department of Interior,
to Al Milham, Chairman, February 15, 1994.
---------------------------------------------------------------------------
5. The proposal to redesignate has been made after consultation
with the elected leadership of local and other substate general purpose
governments in the area covered by the proposed redesignation. See 40
CFR 52.21)(g)(2)(v).
The lands covered by the proposed redesignation lie wholly within
Forest County, Wisconsin, and are comprised wholly of reservation lands
held in federal trust. The CAA requires notice to governmental entities
``in the area covered by the proposed redesignation.'' See
52.21(g)(2)(v) (emphasis added). There is no requirement, however, for
a finding on what areas may be affected
[[Page 23092]]
by a proposed redesignation or notice to such governments in such
areas. As discussed in Section IV.A.1-2, the FCP Community's
application contains a list of dozens of federal, state and local
governmental offices which were notified of the Tribe's intended
action. Additionally, the FCP Community developed a fact sheet and held
a consultation session with federal, state, and local governmental
representatives to further explain and hear concerns regarding the
proposed action, besides the required public hearing. Further, the FCP
Community received numerous comments on its proposed action, to which
it prepared a response to comments document. Thus, and even while the
regulation does not provide a standard for ``consultation,'' EPA deems
the actions of the FCP Community to have provided sufficient notice and
opportunity for comment.
6. Prior to proposing the redesignation, the Indian Governing Body
must consult with the State(s) in which the Reservation is located and
that border the Reservation. See 40 CFR 52.21(g)(4)(ii).
The FCP Community's reservation is located wholly within the State
of Wisconsin. For that reason, the FCP Community included several
Wisconsin offices and agencies in its notice on the proposed
redesignation and public hearing, as discussed in section IV.A.1-2
above. Nevertheless, the FCP Community also provided notice of its
intent to redesignate to several divisions of the Michigan Department
of Environmental Quality, although the State of Michigan does not
border the reservation. Both Wisconsin and Michigan provided comments
on the proposed redesignation, to which the Tribe responded in its
response to comments document. Thus, EPA finds that the FCP Community's
consultation efforts comply with the requirement to consult with
States.
7. Following completion of the procedural requirements, the Tribe
submits to the Administrator a proposal to redesignate the area. See 40
CFR 52.21(g)(4).
On December 4, 1993, and by majority vote, the FCP Community
General Council and the tribal governing body of the FCP Community
passed a resolution to request the Administrator to redesignate the FCP
Community Reservation and on February 10, 1995, the FCP Community
General Council passed a resolution to submit its completed
redesignation request package to EPA. The FCP Community submitted its
formal request for redesignation to EPA's Region 5 office on February
14, 1995.
EPA reviewed the FCP Community's request and made a preliminary
determination that the request met the applicable procedural
requirements of 40 CFR 52.21(g)(4). After making this preliminary
determination, EPA published a notice of proposed rulemaking in the
Federal Register proposing to approve the request and announced a 120-
day public comment period on the issue of whether the Tribe had met the
procedural requirements. See Notice of Proposed Rulemaking, 60 FR 33779
(June 29, 1995).
However, on June 8, 1995, the Governors of Wisconsin and Michigan
sent a letter to EPA objecting to EPA's proposal to grant the FCP
Community request for redesignation and requested EPA to intervene. The
letter also requested that EPA not finalize the proposed redesignation
until further regulations were in place to address permitting on non-
Federal Class I areas. On August 7, 1995, EPA published a notice
cancelling the August 2, 1995, hearing and indefinitely extending the
public comment period because the Governors of Wisconsin and Michigan
had requested negotiations pursuant to Section 164(e) of the CAA to
resolve their dispute regarding the proposed Class I request. In
response to the States' requests, EPA suspended the rulemaking to
address the States' concerns. See 60 FR 40139 (August 7, 1995).
In 1997, EPA published an advanced notice of proposed rulemaking to
address PSD permitting in non-Federal Class I areas. 62 FR 27158 (May
16, 1997). Additionally, two public workshops were held to gather
comments on the advanced proposal. 62 FR 33786 (June 23, 1997). EPA
also initiated a dispute resolution process for Michigan and Wisconsin,
but after 2 years of discussions, the parties had failed to reach an
agreement.
Accordingly, EPA published a notice scheduling two public hearings
on the proposed redesignation and setting the closing date of the
public comment period for September 15, 1997. 62 FR 37007 (July 10,
1997). EPA held two public hearings on the proposed redesignation, the
first on August 12, 1997, in Carter, Wisconsin, and the second on
August 13, 1997, in Rhinelander, Wisconsin, with an informational
meeting preceding each hearing. EPA also provided numerous
opportunities for input from local governments in EPA's public notice
and hearing process on the proposed rulemaking for the redesignation.
The redesignation proposal elicited numerous comments from state
governments, local governments and the general public. Responses to
these comments are found in the response to comments document, which is
part of the record for this rulemaking. However, major comments are
summarized in this notice.
B. Lands Suitable for Redesignation
Section 164(c) of the CAA provides that ``Lands within the exterior
boundaries of reservations of federally recognized Indian Tribes may be
redesignated. * * *'' 42 U.S.C. 7474(c). The PSD regulations define
``Indian Reservation'' as ``any federally recognized reservation
established by Treaty, Agreement, executive order, or act of
Congress.'' See 40 CFR 52.21(b)(27). The FCP Community's reservation
lands are comprised of non-contiguous trust parcels comprising a total
area in excess of 11,700 acres, as described in Section II.B. The FCP
Community's trust holdings are primarily located in Forest County, with
other parcels located in surrounding townships. In its redesignation
request, the FCP Community included only those parcels of 80 acres or
greater in size and located within Forest County.
Several commenters raised concerns that the area proposed for
redesignation includes lands that are not within the boundaries of the
FCP Indian reservation. To address these concerns, EPA sought further
information from both the FCP Community and the Bureau of Indian
Affairs (BIA) regarding the status of lands proposed by the FCP
Community for redesignation. By letter of February 24, 1998, the FCP
Community provided documents describing the parcels subject to the
proposed redesignation. EPA subsequently requested an opinion from the
U.S. Department of Interior (DOI) on the status of those lands, and,
DOI's BIA stated as follows:
The map compiled by S. Funk and dated 12/13/94 was used for
determination purposes. All of those lands identified on that map as
tribal trust meet the criteria of Section 164(c) of the CAA as so
stated. The parcels noted as tribal trust have all been designated
reservation land by proclamation of the Assistant Secretary.\12\
\12\ Letter from Robert Jaeger, Superintendent, BIA Great Lakes
Agency, to David Kee, Air and Radiation Division, USEPA Region 5,
April 16, 1998.
The BIA certification is available for inspection at the public docket
for this rulemaking.
However, the FCP Community commented that the list of parcels
subject to the Class I redesignation request contained errors when
compared to the S. Funk map. These
[[Page 23093]]
errors have been corrected in this action. See Section III.B. EPA's
action redesignates to Class I only those lands from FCP Community's
original list which have been confirmed to be held in trust for the FCP
Community and, therefore, are part of FCP Community's Reservation.
Several commenters, including the FCP Community, also expressed
their belief or concern that lands acquired by a Tribe or State
subsequent to this redesignation request would automatically become
part of the Class I area without having to follow the redesignation
process in 40 CFR 52.21(g). However, EPA believes that a State or Tribe
is required to submit a new redesignation request and follow all of the
procedural steps to redesignate additional parcels not covered by a
previous request where, as here, a Tribe has requested redesignation of
specified parcels, and not its entire reservation. In addition, EPA
would be required to follow the public notice and comment procedures
set out by Congress in section 164(b)(2) of the CAA to review the new
request prior to making its determination whether to grant the request.
Therefore, any additional lands which are placed into trust for the FCP
Community would require the FCP Community to submit a new redesignation
request.
Some commenters also 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. EPA disagrees. As explained in the notice that resolves the
dispute resolution with the State of Michigan and that is published
concurrently with this final action in this Federal Register, EPA can
only consider the size of an area proposed for redesignation when
resolving a dispute under CAA section 164(e). Michigan raised such a
dispute and EPA is resolving it in a separate notice. For reasons
explained there, EPA concluded that the size of the areas requested for
redesignation provides no basis for disapproval.
C. EPA's Role in Evaluating Class I Redesignations
Several commenters asserted that EPA's consideration of a
redesignation request should not be limited to whether a Tribe or State
has met the procedural requirements, but rather, that EPA should also
consider the substantive basis of the request, examine tribal
jurisdiction, and interject its judgment as to whether the Tribe or
State redesignation request is warranted by considering such factors as
the potential economic impact of the redesignation. EPA disagrees.
These comments urge that EPA should, to varying degrees, exceed the
congressional imposed limits on EPA's review authority and suggest
imposing requirements on a Tribe's redesignation request that go far
beyond what the CAA provides.
EPA began administering a PSD program in 1974, before Congress
promulgated statutory provisions for the PSD program in the Clean Air
Act Amendments of 1977, Public Law 95-95, 91 Stat. 685 (1977
Amendments). In its early CAA implementing regulations, EPA played an
active role in the review and approval of redesignation requests. See
39 FR 42510, 42515 (Dec. 5, 1974). Among other things, EPA's pre-1977
regulations authorized it to disapprove a redesignation request if a
State had ``arbitrarily and capriciously disregarded'' anticipated
growth, or the social, environmental, and economic impact of
redesignation on surrounding areas. See 40 CFR
52.21(c)(3)(vi)(a)(1975); 40 CFR 52.21(c)(3)(ii)(d)(1975).
However, in the 1977 CAA Amendments, Congress minimized EPA's
authority to disapprove redesignation requests. Specifically, in
section 164(b)(2), Congress limited EPA's authority to disapprove a
redesignation ``only if [EPA] finds, after notice and opportunity for
public hearing,'' that the applicable ``procedural requirements'' of
section 164 have not been met. 42 U.S.C. 7474(b)(2) [emphasis added].
By this language, Congress clearly intended to limit EPA's role to
ensuring that a State or Tribe adheres to the procedural requirements
of section 164(b)(2). As the House Report accompanying the 1977
Amendments stated:
The intended purpose of [the congressional PSD program is] * * *
to delete the [preexisting] EPA regulations and to substitute a
system which gives a greater role to the States and local
governments and which restricts the Federal Government. * * * [b]y
eliminating the authority which the Administrator has under current
EPA regulations to override a State's classification of an area on
the ground that the State improperly weighed energy, environment,
and other factors.
EPA honored this directive when it revised its PSD regulations
following the 1977 CAA Amendments. See 42 FR 57479-57480 (Nov. 3, 1977)
and thus EPA ``will no longer be able to base a disapproval of a
proposed redesignation on a finding that the State decision was
arbitrary or capricious.'' Furthermore, although this language refers
to States, the CAA and legislative history make clear that the
discussion applies equally to tribal redesignations. See also Arizona
v. EPA.
Thus, Congress has limited EPA's review of a proposed
redesignation. Under section 164(c)(2) of the CAA, EPA's role is to
determine whether the requesting State or Tribe followed specific
procedural requirements, and to ensure that the local decision making
process provides ample opportunity for interested parties to express
their views. It is inappropriate for EPA to interpose superseding
Federal views on the merits of the resulting State or Tribal decisions,
so long as procedural rigor is assured. Thus, in the case of the FCP
Community's redesignation request, EPA's review of the redesignation
proposal is limited to ensuring that the FCP Community followed the
prescribed statutory requirements. See Section IV.A. For those reasons,
EPA concludes that comments regarding the possible economic impact of
the redesignation or the merits of the Tribe's request do not provide
any basis for EPA to disapprove the redesignation.
D. Impact of Dispute Resolution on Redesignation
Section 164(e) of the CAA and 40 CFR 52.21(t) provide the current
statutory and regulatory framework for resolving disputes between
States and Tribes arising from the redesignation of an area. Section
164(e) provides that if the Governor of an affected State or the
appropriate Indian Governing Body of an affected Tribe disagrees with a
request for redesignation by either party, then the governor or Indian
ruling body may request that EPA negotiate with the parties to resolve
the dispute. Pursuant to the statute and implementing regulations, EPA
is not a party to the dispute. The Administrator of EPA is by statute
designated as the final arbiter of the dispute.
The statute provides that either party can ask the Administrator
for a recommendation to resolve the dispute, and if the parties fail to
reach an agreement during the negotiations, ``the Administrator shall
resolve the dispute and his determination, or the results of agreements
reached through other means, shall become part of the applicable plan
and shall be enforceable as part of such plan.'' See section 164(e).
The statute further provides that, ``In resolving such disputes
relating to area redesignation, the administrator shall consider the
extent to which the lands involved are of sufficient size to allow
effective air quality management or have air quality related values of
such an area.'' Section 164(e).
[[Page 23094]]
As previously noted in Section IV.C, section 164(b)(2) of the CAA
provides a general rule which allows EPA to disapprove a redesignation
request ``only if [it] finds, after notice and opportunity for public
hearing,'' that applicable ``procedural requirements'' of the section
are unmet. Section 164(e) of the CAA creates a limited exception to
this general rule and requires EPA to consider additional factors where
a State or Tribe requests that EPA enter into negotiations to resolve a
State-Tribal dispute.
Section 164(e) mandates that when EPA resolves a dispute, it must
``consider the extent to which the lands involved are of sufficient
size to allow effective air quality management or have air quality
related values of such area.'' But where the parties reach agreement,
the agreement becomes part of the applicable plan and the dispute is
ended. Similarly, where EPA resolves a dispute in favor of the party
requesting redesignation, dispute resolution is also terminated, and
the only remaining question is whether the Tribe met the requirements
of section 164(b)(2). EPA explained its role in the dispute resolution
process as follows:
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.
71 FR 75696.
EPA received letters from the Governors of Michigan and Wisconsin,
dated June 8, 1995, requesting that EPA initiate dispute resolution.
Between June 1995 and July 1999, in two separate rounds of dispute
resolution proceedings, the parties utilized a professional mediation
service, under contract to EPA, to mediate the separate disputes
between Wisconsin and the FCP Community, and between Michigan and the
FCP Community.
EPA has determined that no issues raised during either dispute
resolution process would provide a basis on which EPA would deny the
FCP Community's request for redesignation. For this reason, EPA is
treating its resolution of the disputes invoked by the States of
Wisconsin and Michigan under section 164(e) of the CAA separately from
its approval of the redesignation request, and is publishing them
separately, but at the same time as this final action. EPA provides a
complete discussion of the resolution of the intergovernmental disputes
in these two separate Federal Register notices.
E. Appropriate Mechanism for Codifying Class I Area
1. Role of Federal Implementation Plans (FIP)
As noted in section IV.A, Section 164 of the CAA affords States and
Tribes the right to request that EPA redesignate lands under their
control. If all procedural requirements are met, EPA must approve this
request. However, several commenters asserted that EPA has no authority
to implement the redesignation by any mechanism but a TIP. EPA
disagrees.
Before the FCP Community submitted this request for redesignation
from Class II to Class I the Yavapai Apache Tribe of Arizona submitted
such a request, 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 Arizona v. EPA. The Ninth
Circuit's decision stated, among other things, that EPA had not abused
its discretion by approving the Tribe's redesignation request but 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 with this rule 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, however, 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 established
the framework 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 no
