[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56450-56461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27848]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ 58-1-7131-b]
[FRL-5634-5]
Redesignation of the Yavapai-Apache Reservation to a PSD Class I
Area; State of Arizona; Dispute Resolution
AGENCY: Environmental Protection Agency (EPA).
ACTION: Announcement of dispute resolution.
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SUMMARY: The purpose of this action is to announce the EPA's resolution
of an intergovernmental dispute over a request by the Yavapai-Apache
Tribal Council to redesignate the Yavapai-Apache Reservation (``the
Reservation'') as a non-Federal Class I area under the Clean Air Act
program for prevention of significant deterioration of air quality. On
August 22, 1994 the Governor of Arizona raised concerns about EPA's
proposal to approve the request of the Yavapai-Apache Tribe to
redesignate its Reservation as a Class I area and asked EPA to initiate
the intergovernmental dispute resolution process provided for in
section 164(e) of the Clean Air Act. The State and the Tribe were
unable to reach an agreement concerning the redesignation. Section
164(e) of the Clean Air Act provides that EPA must therefore resolve
the dispute. After fully considering the concerns raised by the State
of Arizona, EPA declines in these particular circumstances to
disapprove the Tribe's decision to limit the amount of air quality
deterioration allowed within its Reservation. Therefore, as described
in a final rulemaking notice also published in today's Federal
Register, EPA is finalizing its proposed decision to redesignate the
Yavapai-Apache Reservation as a non-Federal Class I area. The Class I
designation will result in lowering the allowable increases in ambient
concentrations of particulate matter, sulfur dioxide, and nitrogen
dioxide within the Reservation.
EFFECTIVE DATE: December 2, 1996.
ADDRESSES: The public docket for this notice, which includes additional
information related to this decision and relevant materials submitted
to EPA, is available for public inspection and copying during normal
business hours. Please contact the EPA official listed below at the
given address. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Jessica Gaylord, Air and Toxics
Division (A-5-1), U.S. EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105-3901, (415) 744-1290. An electronic copy of this
Federal Register notice and other pertinent information is available on
the World Wide Web at this Internet address: http://www.epa.gov/
region09/air/yavapai/
SUPPLEMENTARY INFORMATION:
I. Summary of Final Rule Approving Yavapai-Apache Tribe's Request
for Redesignation
Elsewhere in today's Federal Register EPA has published a final
rulemaking notice granting the Yavapai-Apache Tribe's request to
redesignate its reservation as a Class I area under the Clean Air Act
(CAA) program for the prevention of significant deterioration of
[[Page 56451]]
air quality (PSD). The final rulemaking notice contains a discussion of
the following: (1) The PSD program and PSD area classifications; (2)
the PSD redesignation requirements; (3) the PSD class I redesignation
request submitted to EPA by the Tribe and the public process
accompanying EPA's review of the request; (4) the statutory and
regulatory limits on the scope of EPA's review; and (5) EPA's response
to public comments on EPA's proposed approval of the request, including
concerns about the potential impacts of the redesignation on areas
outside the reservation. While some aspects of the final rulemaking
notice are reiterated here, the reader is referred to the notice for a
more detailed discussion.
As explained in EPA's final rulemaking notice approving the
redesignation, section 164(b)(2) of the CAA provides that EPA may
disapprove a State or Tribal redesignation request only if it finds,
after notice and public hearing, that the redesignation does not
conform with the applicable procedural requirements. See also 40 CFR
52.21(g)(5). However, section 164(e) of the CAA also calls for EPA to
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'' in the narrow context where EPA is
resolving intergovernmental disputes relating to a PSD area
redesignation.
As explained in EPA's notice of final rulemaking, EPA's review of
the Tribe's request in light of the public comments revealed no
procedural error by the Tribe. In this notice, EPA examines the issues
raised by the State of Arizona and the Tribe in their intergovernmental
dispute, including the specific factors EPA is required to consider in
resolving intergovernmental disputes relating to redesignations. For
the reasons described below, EPA declines in these particular
circumstances to disapprove the Tribe's decision to limit the amount of
air quality deterioration allowed within its Reservation. Accordingly,
in the notice of final rulemaking also published in today's Federal
Register, EPA announces its approval of the Tribe's Class I
redesignation request.
II. Statutory and Regulatory Background
A. Description of the PSD Program: PSD Area Classifications,
Redesignations and Permit Requirements
The PSD program applies to areas designated ``attainment'' or
``unclassifiable'' under section 107 of the CAA relative to EPA's
national ambient air quality standards (NAAQS). See section 161 of the
CAA. Attainment areas are areas that meet the NAAQS and unclassifiable
areas are areas that cannot be determined on the basis of available
information as meeting or not meeting the NAAQS. See section
107(d)(1)(A) of the CAA. These areas are referred to as ``PSD areas.''
PSD areas are further categorized as Classes I, II or III. The
classification of an area determines the amount or ``increment'' of air
quality deterioration that is allowed over a baseline level. Class I
areas have the smallest increments and therefore allow the least amount
of air quality deterioration. Conversely, Class III areas have the
largest air quality increments and allow the greatest degradation.
EPA's PSD regulations establish the incremental amount of air quality
deterioration that is allowed for particulate matter, sulfur dioxide
and nitrogen dioxide in Class I, II and III areas. See 40 CFR 52.21(c).
In all instances, the NAAQS represent the overarching ceiling that may
not be exceeded in a PSD area, notwithstanding any increment.
When Congress enacted a statutory PSD program in the 1977
amendments to the Clean Air Act it provided that specified Federal
lands, including certain national parks and wilderness areas, must be
designated as Class I areas and may not be redesignated to another
classification. See section 162(a) of the CAA. These areas are called
mandatory Federal Class I areas. The statute also carried forward as
Class I areas any areas redesignated as Class I under EPA's pre-1977
PSD regulations. The Northern Cheyenne reservation was a redesignated
Class I area affected by this provision. See Nance v. EPA, 645 F.2d 701
(9th Cir. 1981), cert. denied, Crow Tribe of Indians v. EPA, 454 U.S.
1081 (1981).
In the 1977 amendments to the Clean Air Act, Congress provided that
all other PSD areas of the country would be designated as Class II
areas. See section 162(b) of the CAA. At the same time, Congress gave
States and Indian Tribes broad authority to redesignate Class II areas
as Class I. See section 164 of the CAA.
Section 164(c) of the CAA expressly provides for PSD area
redesignations by Federally recognized Indian Tribes:
Lands within the exterior boundaries of reservations of
federally recognized Indian tribes may be redesignated only by the
appropriate Indian governing body.
The Department of the Interior periodically publishes a list of Tribes
officially recognized by the Federal government. See 60 FR 9250
(February 16, 1995) (identifying Yavapai-Apache Nation of the Camp
Verde Reservation, Arizona).
The Clean Air Act establishes a narrow role for EPA in reviewing
State and Tribal PSD redesignations, providing for EPA disapproval of
redesignation requests only if EPA finds that the procedural
requirements applicable to redesignations have not been met. See
section 164(b)(2) of the CAA. Accordingly, EPA's implementing
regulations provide that EPA ``shall disapprove, within 90 days of
submission, a proposed redesignation of any area only if [it] finds,
after notice and opportunity for public hearing, that such
redesignation does not meet the procedural requirements of [40 CFR
52.21(g)].'' See 40 CFR 52.21(g)(5). EPA's final rulemaking notice
approving the Tribe's redesignation request published elsewhere in
today's Federal Register examines in detail the procedural
requirements, EPA's review role and related issues.
The EPA has previously approved Class I redesignation requests for
the Northern Cheyenne Indian Reservation, the Flathead Indian
Reservation, the Fort Peck Indian Reservation and the Spokane Indian
Reservation. See 40 CFR 52.1382(c) and 52.2497.
The PSD program is implemented through a preconstruction review
permit program. The permit program applies only to major stationary
sources located in PSD areas. In general, a major stationary source is
a large stationary source that has the potential to emit 250 tons per
year of a regulated air pollutant or, for a certain set of specifically
listed source categories (e.g., iron and steel mill plants, etc.), 100
tons per year of a regulated air pollutant. See 40 CFR 52.21(b)(1).
In broad overview, the PSD program calls for the owners and
operators 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.'' See
sections 165(a) and 169(3) of the CAA. The air quality analysis,
performed using air quality modeling, must show that the proposed
source will not cause or contribute to an exceedance of an applicable
PSD increment, over a baseline concentration, or a NAAQS. See 40 CFR
52.21(c) and (d). The permitting authority reviews the permit
application and determines whether in its informed judgment, after
notice and public hearing, the PSD permit requirements have been met.
[[Page 56452]]
B. Yavapai-Apache Tribe Request To Redesignate Its Reservation From
Class II to Class I
On December 17, 1993, the Yavapai-Apache Tribal Council (``the
Tribal Council'' or ``the Tribe'') submitted to EPA a request to
redesignate the Yavapai-Apache Reservation from Class II to Class I.
The Tribe's submittal explains that its redesignation request is to
protect its air quality for its citizens:
The Yavapai-Apache Tribe desires to maintain high quality air
standards for its citizens by redesignating Reservation lands as a
Class I Clean Air area.
See Yavapai-Apache Tribe Air Quality Redesignation Plan, Sept. 1993 at
p. 1.
The Yavapai-Apache Reservation is located in the Verde Valley, in
the State of Arizona. The Reservation is comprised of five land parcels
which total approximately 635 acres. The Tribe's redesignation request
includes its entire Reservation. Maps of the Reservation are included
as appendices to the Tribe's September 1993 Air Quality Redesignation
Plan, which is available as part of the public docket identified at the
beginning of this notice.
The Reservation is approximately 90 miles north of Phoenix in the
Verde Valley of central Arizona. The Verde Valley is situated near the
``red rock'' country of Sedona and Oak Creek Canyon. Nearby national
forests include the Coconino National Forest, the Kaibab National
Forest and the Prescott National Forest. The Montezuma Castle,
Montezuma Well and Tuzigoot National Monuments are located within the
Verde Valley in the vicinity of the Reservation. In addition, the
Sycamore Canyon Wilderness Area, designated a mandatory Federal Class I
area under the CAA, is located a few miles north of the Town of
Clarkdale. See 40 CFR 81.403.
EPA reviewed the Tribe's redesignation request and preliminarily
determined that it met the applicable procedural requirements of 40 CFR
52.21(g)(4). On April 18, 1994, EPA published a notice of proposed
rulemaking in the Federal Register proposing to approve the request and
announced a 30-day period to receive public comments. See 59 FR 18346.
At the request of the Town of Clarkdale, located near the Clarkdale
parcel of the Reservation, EPA held a public hearing on the proposed
redesignation on June 22, 1994. EPA's public hearing notice indicated
that EPA would allow until July 6, 1994 for the submittal of written
comments. In order to facilitate public understanding about EPA's
proposed action, EPA began the public hearing with an explanation of
the Class I redesignation process and the PSD program.
Following the public hearing, the Town of Clarkdale requested an
extension of the public comment period. On July 20, 1994, EPA published
a Federal Register notice announcing an extension of the public comment
period, providing the public until August 22, 1994 to submit written
comments. See 59 FR 37018-19.
At the conclusion of the extended comment period, the Governor of
Arizona submitted an August 22, 1994 letter to EPA requesting EPA to
initiate dispute resolution pursuant to section 164(e) of the CAA. See
Letter from Fife Symington, Governor of Arizona, to Carol M. Browner,
EPA Administrator.
III. The Intergovernmental Dispute
A. Background
In broad overview, section 164(e) of the CAA provides a mechanism
for States and Tribes to resolve intergovernmental disagreements about
a PSD area redesignation or proposed permit. Specifically, section
164(e) provides in relation to PSD redesignations that if a State
affected by the redesignation of an area by an Indian tribe or an
Indian tribe affected by the redesignation of an area by a State
disagrees with such redesignation, the Governor or Indian ruling body
may request EPA to enter into negotiations with the governments
involved to resolve the dispute. The statute calls for EPA to resolve
the dispute if the governments involved do not reach agreement.
Further, section 164(e) provides that in resolving disputes related to
an area redesignation, EPA 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 an area.'' See
also 40 CFR 52.21(t).
B. Concerns Raised by State and Tribe
In the discussion below, EPA has summarized the concerns that have
been raised by the State and Tribe. Because the State was raising
objections to the Tribe's redesignation request and because EPA has
ultimately decided to approve the request, the summary below
particularly focuses on the concerns raised by the State. Additional
information about EPA meetings with State and Tribal representatives is
contained in the public docket identified at the beginning of this
notice.
The Governor of Arizona's August 22, 1994 letter indicated that he
was concerned that ``[t]he effects of the proposed redesignation are
not apparent to all of the stakeholders, and confusion exists about the
potential impacts of the Agency's proposed action.'' The Governor
indicated that he was requesting EPA to initiate the dispute resolution
process so that ``the effects of the proposed action can be better
understood and outstanding concerns addressed for the benefit of all
stakeholders.'' See Letter from Fife Symington, Governor of Arizona, to
Carol M. Browner, EPA Administrator.
In an October 6, 1994 letter EPA asked the State to elaborate the
bases for its dispute, to help EPA facilitate resolution of the
disagreement. See Letter from John C. Wise, EPA Deputy Regional
Administrator, to Fife Symington, Governor of Arizona. In the letter,
EPA also offered to meet with the State to discuss options for
additional public outreach to address the State's concern that the
effects of the proposed redesignation were not understood by all of the
stakeholders.
The Governor's December 5, 1994 reply indicated that ``[t]he
purpose of invoking the dispute resolution is to raise the issues of
whether the Yavapai-Apache Reservation is of sufficient size to allow
effective air quality management or have air quality-related values.''
See Letter from Fife Symington, Governor of Arizona, to Felicia Marcus,
EPA Regional Administrator. The State's reply also referred to October
20, 1993 comments submitted by a State official during the Tribe's
public comment period. The October 20, 1993 letter raised the following
concerns:
The proposed [Yavapai-Apache Tribe Air Quality Redesignation]
Plan points out that the Reservation is comprised of five small,
scattered land parcels totaling 635 acres in the Verde Valley,
ranging in size from almost four to 458 acres, and located over a
range of approximately 30 miles. Reservation lands are separated by
relatively long distances and a variety of land ownership as well as
development patterns.
Considering the size and dispersed nature of the Reservation
lands, the [Arizona] Department [of Environmental Quality] has
concluded that redesignation of the Reservation to Class I status
would not necessarily result in effective air quality management.
Section 165 of the CAA prescribes the type of analysis which must be
conducted prior to the issuance of permits for Prevention of
Significant Deterioration in Class I areas. The Department has
concluded that it would be neither realistic nor practicable to
apply those requirements to all Reservation lands while
distinguishing those lands from surrounding Class II areas, which
would be subject to different air quality limitations.
See Letter from Edward Z. Fox, Director of the Arizona Department of
Environmental Quality, to Theodore
[[Page 56453]]
Smith, Sr., Chairman of the Yavapai-Apache Tribe.
The Tribe responded to the State's comments regarding the size of
the Reservation in the December 7, 1993 letter to EPA requesting
redesignation to Class I, as follows:
However, no where does the writer cite a law or regulation which
requires Class I areas to be a certain size, but rather the
regulations merely call for the EPA Administrator to consider the
extent to which the lands involved are of sufficient size. The U.S.
Congress, in passing the Clean Air Act, could not have intended that
only larger areas could receive clean air designations while smaller
areas must suffer from a lack of clean air. This is especially true
since Congress included in the Clean Air Act an explicit provision
for Indian Tribes to request redesignations and since Congress knew
that Indian Reservations would clearly vary in size.
See Letter from Theodore Smith, Sr., Chairman of the Yavapai-Apache
Tribe, to Matt Haber, EPA Region 9.
On January 12, 1995, EPA held a series of meetings in the Phoenix
area with representatives of the State and Tribe to facilitate
resolution of the dispute. EPA first met separately with
representatives of the State and Tribe, to allow each to express its
concerns in a non-adversarial setting, and then the two parties met
without EPA officials. Subsequently, EPA officials held a joint meeting
with representatives of the State and Tribe. In the joint meeting,
which was transcribed, representatives of both parties described their
concerns, summarized below.
Representatives of the State expressed concern about impacts
outside of the reservation:
The impact of the redesignation is significant with regard to
areas outside of the Indian territory, Indian lands. And because of
that, it has an impact which certainly was unforeseen or
unanticipated by the non-Indian residents of the Verde Valley.
The redesignation will have significant impacts on future growth
and growth trends, business trends, job opportunities in the Verde
Valley, and in a way which may or may not impact the ability to
manage the area for air quality values or to effectively manage the
area for air quality purposes. It is because of this what I consider
to be [the] extraterritorial effect of the redesignation from the
Tribe onto state and county and local lands that we believe the
redesignation to be inappropriate.
See January 12, 1995 EPA Dispute Resolution Proceedings, Transcript at
p. 7 (hereafter ``Transcript'').\1\
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\1\ A copy of the transcript is included in the public docket
for this action, identified at the beginning of this notice.
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The State also described its belief that in addressing the dispute
EPA is required to consider ``whether the area can be effectively
managed for air quality values, meaning the redesignated area, which is
the Tribal lands, or whether there are air quality related values on
the Reservation that need to be protected.'' See Trans. at ps. 7-8. The
State indicated that it believed the answer to both questions to be no
and therefore it is inappropriate for the Tribe unilaterally to seek
the redesignation:
It is our opinion that in both of those situations the answer is
no. And because of that, we believe that the health and effect of
the--All the residents of the Verde Valley, Tribal or non-Tribal
need to be protected, but be protected holistically, not one side
dictating to the other. And we believe that this redesignation is
indeed a dictation from one side to the other.
See Trans. at p. 8.
The State also raised concerns that the reservation consists of
separate parcels and that in the State's view it was untenable and
unworkable to manage air quality off of the disperse land parcels:
It is a Reservation that is made up of five individual parcels
spread out through the--five or six individual parcels throughout
the Verde Valley. * * *
* * * * *
* * * [G]iven what I believe to be a very untenable and
unworkable arrangement with regard to trying to manage air quality
off of these dispersed pieces of Indian land, we think the
designation is not appropriate.
See Trans. at ps. 7 & 9.
The State also objected to the redesignation because the
redesignation would not address the Tribe's concern about existing
health and welfare problems:
And so to the extent that there are current problems with the
health and welfare of the Tribal members, those issues don't get
resolved in this process anyway and they will have to be resolved
otherwise in some other form.
See Trans. at p. 8.
The Tribe stated that it had followed and met all of the procedural
requirements that apply to a Tribal class I redesignation. See Trans.
at p. 9. The Tribe indicated that it was concerned about the health and
welfare of its members:
While the Tribe respects the views of everyone, the Tribe holds
the health and welfare of its members at a premium.
See Trans. at p. 13.
Further, the Tribe suggested that the concerns about off
reservation impacts were based on misinformation and that the
redesignation would not preclude economic development off the
reservation:
Some people have said that the Class I status would affect
automobile emission standards or affect their ability to burn wood
in their fireplaces, others have said that the Class I status would,
quote, affect all development in the Verde Valley. Statements like
these have no basis in fact. Economic development can still happen.
See Trans. at p. 13.
The Tribe recounted the process its redesignation has been subject
to, as follows: (1) On September 11, 1993 the Tribal Council
unanimously approved the air quality redesignation request and the
description and analysis of its effects; (2) on October 21, 1993, the
Tribe held a public hearing on the Reservation at which 43 people
including 37 non-Indians voiced support for the redesignation and no
one opposed it; (3) in December 1993 the Tribe submitted its
redesignation request to EPA; (4) on April 18, 1994 EPA published a
Federal Register notice proposing to approve the redesignation; (5) on
May 18, 1994 the public comment period ended; (6) on May 20, 1994, EPA
reopened the process and decided to hold an EPA sponsored public
hearing in Arizona; (7) on June 22, 1994, EPA conducted a second public
hearing on the reservation--at which 40 people provided comments,
including at least 20 non-Indians, in support of the Tribe's request
and five people opposed the request--and extended the public comment
period for an additional two weeks; (8) on July 6, 1994 the extended
public comment period concluded; (9) on July 20, 1994 EPA published
another Federal Register notice extending the public comment period
again; and (10) on August 22, 1994 the public comment period ended and
that same day the Governor of Arizona sent a letter to EPA requesting
this dispute resolution process. See Trans. at ps. 9-11.
The Tribe expressed concern about the length of time that had
passed in arranging a meeting with the State to explore a resolution of
the dispute:
For over four months now, the Tribe has been patiently waiting
for the State to agree to even attend the dispute resolution
proceedings.
See Trans. at p. 11.
The Tribe expressed concern about the length of time that elapsed
before the State provided a list of reasons for disagreeing with the
redesignation:
On October 6th, 1994, the EPA formally requested from the
Governor a list or outline of his reasons for disagreeing with the
Tribe's proposal. That request was made to produce the document
within one week. Two months later, on December 5th, 1994, the
Governor finally responded with a one-page letter simply stating
that the issue was whether the Yavapai-Apache Reservation was of
[[Page 56454]]
sufficient size to allow effective air quality management [or have
air quality related values].
See Trans. at p. 11
After hearing the concerns expressed by the State and Tribe, EPA
attempted to explore whether there was common ground for a resolution.
See Trans. at p. 13. EPA adjourned the meeting when neither party
expressed an interest in further discussion. See Trans. at p. 15. EPA
subsequently encouraged the Tribe and the State to jointly meet again
to further explore possible resolution of the dispute. The parties,
however, declined.
IV. EPA's Resolution of the Intergovernmental Dispute
A. Introduction
Because the State and Tribe were unable to reach agreement, section
164(e) of the CAA calls for EPA to resolve the dispute. As noted,
section 164(b)(2) of the CAA provides that EPA may disapprove a
redesignation request submitted by a State or Tribe only if EPA finds,
after notice and public hearing, that the redesignation does not meet
the applicable procedural requirements. See also 40 CFR 52.21(g)(5). As
explained below, these statutory and regulatory provisions and their
associated legislative and administrative history indicate that so long
as the prescribed procedures for public input and involvement are
followed, EPA is to give States and Tribes broad latitude in deciding
what PSD classification is appropriate for lands within their
respective jurisdictions.
1. Statutory and Regulatory Background
EPA's pre-1977 PSD regulations authorized EPA to disapprove an area
redesignation request if EPA determined that the State or Tribe
proffering the request acted arbitrarily and capriciously in
considering certain factors. See 39 FR 42510, 42515 (Dec. 5, 1974). In
the 1977 Clean Air Act amendments Congress adopted major changes to the
CAA, including a PSD regime to supplant EPA's pre-1977 administrative
program. EPA's current regulations implement section 164(b)(2) of the
CAA, adopted with the 1977 Clean Air Act amendments, by providing for
disapproval of a State or Tribal redesignation only if EPA finds, after
notice and opportunity for public hearing, that the request does not
meet the applicable procedural requirements. EPA's regulations also
reflect the limited EPA review role by calling for EPA to make this
determination within 90 days of submission of a redesignation request.
See 40 CFR 52.21(g)(5).
The legislative history associated with Congress's adoption of the
1977 PSD program indicates that Congress deliberately intended to
curtail EPA's authority to disapprove a redesignation request under its
pre-1977 regulations, giving States and Tribes greater discretion in
this area:
The intended purpose of [the congressional PSD program] are * *
* (3) to delete the current EPA regulations and to substitute a
system which gives a greater role to the States[, Tribal 2,]
and local governments and which restricts the Federal Government in
the following ways: * * * (b) By eliminating the authority which the
Administrator has under current EPA regulations to override a
State's [or Tribe's] classification of an area on the ground that
the State [or Tribe] improperly weighed energy, environment, and
other factors.
\2\ The statute and the legislative history make it clear that
the references to State redesignation authority in the legislative
history apply equally to redesignations by Tribes. See, e.g., S.
Rep. No. 127, 95th Cong., 1st Sess. 9 (1977) reprinted in 1977 CAAA
Legislative History, vol. 3 at 1383.
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See H.R. Rep. No. 294, 95th Cong., 1st Sess. 7-8 (1977) reprinted in
Senate Comm. on the Environment and Public Works, 95th Cong., 2d Sess.,
A Legislative History of the Clean Air Act Amendments of 1977, vol. 4
at 2474-75 (1978) (hereafter ``1977 CAAA Legislative History''); see
also 1977 CAAA Legislative History, vol. 3 at 373 (colloquy between
Senators Garn and Muskie, during the Senate's consideration of the
Conference report, about the types of procedural error that might
trigger a disapproval).
Thus, Congress adopted the statutory provisions governing EPA's
review of State and Tribal redesignation requests to limit the scope of
Federal review. Under the current provisions, EPA's role is to
determine whether the requesting State or Tribe followed specific
procedural requirements, to ensure that the local decisionmaking
process provides ample opportunity for interested parties to express
their views. While EPA must ensure procedural rigor, it is generally
inappropriate for EPA to interpose superseding Federal views on the
merits of the resulting State or Tribal decisions. See, e.g., H.R. Rep.
No. 294 at 146-47 (1977) reprinted in 1977 CAAA Legislative History,
vol. 4 at 2613-14. The limited Federal review applies to both State and
Tribal redesignation requests and therefore would apply to EPA's review
of objections to a State's redesignation request.
In this instance, EPA examined the Yavapai-Apache Tribe's decision
to limit the amount of air quality deterioration within its Reservation
in light of significant comments and concluded that the redesignation
request is the product of a decision-making process that comports with
procedural requirements. The reader is referred to the notice approving
the Tribe's redesignation request, also published in today's Federal
Register. The notice contains a detailed discussion of these issues.
At the same time that section 164(b)(2) provides that EPA may
disapprove a redesignation request only if it determines that the
requesting State or Tribe has committed a procedural error, section
164(e) of the CAA calls for EPA to 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'' in
resolving intergovernmental disputes about a PSD area redesignation.
EPA's regulations implementing section 164(e) simply repeat this
language and do not provide additional regulatory guidance. See 40 CFR
52.21(t).
However, the legislative history accompanying the adoption of
section 164(e) is pertinent, specifically indicating that the
intergovernmental dispute resolution provision was not intended to
encroach on Indian sovereignty. During the House of Representatives'
consideration of the Conference Committee report, Congressman Rogers,
Chairman of the House Subcommittee on Health and the Environment and
one of the conferees, admonished that EPA's review of Tribal
redesignations in resolving intergovernmental disputes should be
exercised with utmost caution and that EPA should reverse a Tribal
determination only under the most serious circumstances:
The conference bill provides that both States and Indian tribes
will continue to have the power they now have to redesignate their
lands to a new air quality classification. In cases where another
State may object to such classification, and when the two
jurisdictions cannot amicably come to agreement, the Administrator
is granted the power to review the redesignation. But it is intended
that the Administrator's review of such determinations by tribal
governments be exercised with utmost caution to avoid unnecessarily
substituting his judgment for that of the tribe. The concept of
Indian sovereignty over reservation lands is a critical one, not
only to native Americans, but to the Government of the United
States. A fundamental incident of that sovereignty is control over
the use of their air resources. Some statutes, I imagine, have
encroached upon Indian sovereignty, eroding treaty rights negotiated
at an earlier time. This is not such a bill, for the Administrator
should reverse the determination made by an Indian
[[Page 56455]]
governing body to reclassify its land, only under the most serious
circumstances.
See 1977 CAAA Legislative History, vol. 3 at 326.
Federal and Agency Tribal policies direct EPA to respect Tribal
sovereignty. For example, on January 24, 1983, President Reagan issued
a Federal Indian Policy, reaffirming and calling for implementation of
President Nixon's 1970 national policy of self-determination for Indian
Tribes as well as the ensuing 1975 Indian Self-Determination and
Education Assistance Act. The Policy Statement issued by President
Reagan stressed two related themes: (1) that the Federal government
will pursue the principle of Indian ``self-government'' and (2) that it
will work directly with Tribal governments on a ``government-to-
government'' basis. An April 29, 1994 Presidential Memorandum issued by
President Clinton reiterated that the rights of sovereign Tribal
governments must be fully respected. See 59 FR 22951 (May 4, 1994).
EPA's Tribal policies implement these principles, including recognizing
Tribal Governments as sovereign entities with primary authority and
responsibility for the reservation populace. See November 8, 1984 ``EPA
Policy for the Administration of Environmental Programs on Indian
Reservations''; Policy Reaffirmed by Administrator Carol M. Browner in
a Memorandum issued on March 14, 1994. See also Washington Department
of Ecology, 752 F.2d 1465, 1471-72 and n.5 (9th Cir. 1985). The United
States also has a unique fiduciary relationship with Tribes. See, e.g.,
Nance v. EPA, 645 F.2d 701, 710-11 (9th Cir.), cert. denied, Crow Tribe
of Indians v. EPA, 454 U.S. 1081 (1981).
Finally, a central purpose of the CAA is ``to protect and enhance
the quality'' of air resources ``to promote the public health and
welfare.'' See section 101(b)(1) of the CAA; see also Sierra Club v.
Ruckleshaus, 344 F. Supp 253 (D.D.C. 1972), aff'd per curiam, 4 Env't
Rep. Cases 1815 (D.C. Cir. 1972), aff'd by an equally divided court,
sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973). The specific purposes
of the PSD program include: (1) protecting the public health and
welfare from any actual or potential adverse effect from air pollution,
notwithstanding attainment and maintenance of the NAAQS; (2) insuring
that economic growth will occur in a manner consistent with the
preservation of existing clean air resources; and (3) assuring that
emissions from any source in one jurisdiction will not interfere with
the prevention of significant deterioration in any other jurisdiction.
See section 160(1), (3), and (4) of the CAA.
2. Overview of Dispute Resolution
To disapprove the Tribe's Class I redesignation would wholly and
summarily deprive the Tribe of any air quality protection on its
Reservation that may be afforded by a more stringent classification.
The intergovernmental dispute resolution provisions of section 164(e)
provide a more narrowly tailored mechanism for addressing any disputes
that actually result from the Class I redesignation in the context of a
specific permit proceeding.
EPA would be the permitting authority for any proposed source
locating within the boundaries of the Indian Reservation and EPA, in
consultation with the Tribe, would implement the new Class I increment
within the Reservation. However, the State is the permitting authority
for PSD sources proposing to locate in the Verde Valley outside the
Reservation boundaries. If, in the context where the State is the
permitting authority, the governing body of the Tribe determines that a
proposed source locating outside the Reservation would cause or
contribute to an excess change in air quality within the Reservation,
section 164(e) provides that the Tribe may request that EPA enter into
negotiations with the State and Tribe to resolve the dispute. If the
parties do not reach agreement, EPA would be required to resolve the
dispute.
Thus, the Tribe may pursue specific concerns about a proposed
source's impact on possible violations of air quality standards within
the redesignated Class I area through EPA and the section 164(e)
dispute resolution process. Section 164(e) similarly authorizes an
affected State to invoke the dispute resolution process because of the
impacts of a proposed PSD source on the State's air quality.
The Tribe's authority to protect the non-Federal Class I area
within its jurisdiction is notably different from the authority of
Federal Land Managers under section 165(d) of the CAA to protect
Federal Class I areas. Federal Land Managers must directly certify that
a proposed source causing or contributing to a violation of the Class I
increment in a Federal Class I area will not adversely impact the area,
before permitting may proceed. See, e.g., section 165(d)(2)(C)(iii) of
the CAA.
In the specific circumstances at issue, EPA believes that fully
examining any State or Tribal concerns raised in the context of a
particular permit proceeding where the Tribe has actually determined
that a proposed source will cause or contribute to a violation of the
allowable increment within the Reservation pursuant to section 164(e)
is a more measured alternative to summarily disapproving the Tribe's
request for several reasons. First, a central concern raised by the
State (as well as public commenters) is the potential off-Reservation
impacts of the redesignation. As explained below and in the Federal
Register notice approving the redesignation request, EPA does not
expect that the Class I redesignation will have major off-Reservation
impacts. Further, if there are any actual permit controversies that
result from the Class I redesignation, at that juncture there will be
concrete facts and particularized, focused issues that are better fit
for resolution than more general allegations and objections. EPA is
committed to working with the State and Tribe to resolve any
intergovernmental permit disputes that actually arise as a result of
the Class I redesignation.
In addition, as explained further below, EPA will continue to
provide public education about the potential impacts of the Class I
redesignation. Further, EPA's technical staff do not expect that the
additional Class I area, comprised of five separate parcels, will
present substantial air quality management obstacles. EPA will work
with the State to overcome any particular air quality management
difficulties it encounters as a result of the Class I redesignation.
In the discussion below, EPA addresses the issues and concerns
raised by the State, including the specific factors EPA is directed to
consider pursuant to section 164(e) of the CAA. Ultimately, EPA
declines in these specific circumstances to disapprove the Tribe's
decision to limit the amount of air quality deterioration within its
Reservation. Thus, the Class I redesignation for the Reservation will
become part of the applicable implementation plan for the Yavapai-
Apache Tribe, as provided in the final rulemaking notice published
elsewhere in today's Federal Register.
B. Public Understanding of Redesignation Implications and Off-
Reservation Impacts
The August 22, 1994 letter from the Governor of Arizona stated that
the Governor was requesting EPA to initiate the dispute resolution
process so that the effects of EPA's proposal to approve the
redesignation can be better understood and outstanding concerns
addressed for the benefit of all
[[Page 56456]]
stakeholders. See Letter from Fife Symington, Governor of Arizona, to
Carol M. Browner, EPA Administrator.
At the January 12, 1995 meeting with EPA and Tribal
representatives, a State representative expressed concern that the
redesignation would have impacts outside of the Reservation that were
unanticipated by the non-Indian residents of the Verde Valley,
including significant impacts on future growth and growth trends,
business trends, and job opportunities in the Verde Valley. The State
representative objected to the redesignation because of this
``extraterritorial effect.'' See Trans. at p. 7.
The Tribe's redesignation request has been subject to a fairly
extensive public review process to provide an opportunity for public
input and to facilitate public understanding. The Tribe held a public
hearing during its development of the redesignation request. A number
of local citizens who are not Tribal members attended the Tribe's
public hearing and expressed support for the Class I redesignation.
To enhance public understanding, EPA's Federal Register notice
proposing to approve the redesignation request described the PSD
program and the implications of a Class I redesignation. See 59 FR
18346 (April 18, 1994). EPA held a public hearing on its proposed
approval of the redesignation request, to be responsive to a request
from the Town of Clarkdale, a town located near one of the Reservation
parcels. As indicated in the public notice announcing the public
hearing, EPA began the public hearing ``with an informational
discussion of the Class I redesignation process and an overview of the
air quality permitting program that is related to the Class I
redesignation'' to help the public understand the potential
implications of the proposed redesignation. See Red Rock News and Verde
Independent, both May 20, 1994. EPA also extended the public comment
period on its proposal to August 22, 1994, in response to a request
from the Town of Clarkdale. See 59 FR 37018 (July 20, 1994).
After receiving the Governor's August 22, 1994 letter expressing
concerns about the stakeholder's understanding, EPA wrote to the
Governor indicating that EPA ``would be pleased to meet with you to
discuss options for additional outreach and dissemination of
information.'' See Letter from John C. Wise, EPA Deputy Regional
Administrator, to Fife Symington, Governor of Arizona (October 6,
1994). The State's reply did not further pursue this issue. See Letter
from Fife Symington, Governor of Arizona, to Felicia Marcus, EPA
Regional Administrator (December 5, 1994).
In this notice and the final rulemaking notice approving the
Tribe's redesignation published elsewhere in today's Federal Register,
EPA has endeavored to explain the PSD program and the potential effects
of the Class I redesignation on areas outside the Reservation. The
final rulemaking notice contains a detailed discussion that addresses
concerns and misimpressions about potential economic and regulatory
impacts, in response to questions and comments raised by the Towns of
Camp Verde and Clarkdale and a mining company. This discussion was
included in the final rulemaking notice to promote public
understanding.
In the final rulemaking notice, EPA addressed, among other
concerns, misconceptions about the CAA requirements associated with a
PSD Class I redesignation. As explained, a PSD Class I redesignation
does not impose vehicle inspection and maintenance (i.e., motor vehicle
``smog check'') in the surrounding area or establish requirements for
controls on residential woodstoves in the surrounding area. EPA also
indicated that it does not expect the redesignation of the non-Federal
Class I area to adversely impact economic growth in the Verde Valley.
For example, Tucson, which is located in southern Arizona, is bordered
on its east and west by two separate parcels of a Federal Class I area,
the Saguaro National Monument, Tucson has a population size and
economic activity level that far exceeds that presently found in the
Verde Valley. The reader is referred to that notice for further
discussion of these issues.
Also, as explained in part II.A, the PSD preconstruction review
permit requirements only apply to major stationary sources in a PSD
area. The permit requirements apply to major stationary sources
proposing to locate in a PSD area or to major modifications at existing
major stationary sources. Major stationary sources are large sources
that have the potential to emit 250 tons per year of regulated air
pollutant or, for certain listed source categories, 100 tons per year
of regulated air pollutant. See 40 CFR 51.166(b)(1) and 52.21(b)(1). In
general terms, a major modification is a physical or operational change
at a major stationary source that would result in a significant net
emissions increase of a regulated air pollutant. See 40 CFR
51.166(b)(2) and 52.21(b)(2).
The area in the Verde Valley outside the Reservation boundaries is
designated a Class II area under the PSD provisions. The owner/operator
of a proposed major stationary source or proposed major modification to
an existing major stationary source in this area would have to
implement ``best available control technology'' irrespective of the PSD
classification of the Reservation. See 40 CFR 51.166(b)(12) &
51.166(j). In addition, the owner or operator would have to demonstrate
that emissions increases from the proposed source would not cause or
contribute to a violation of a NAAQS or increment. See 40 CFR
51.166(k). The Class I designation may influence this analysis because
in addition to assessing its air quality impact relative to the Class
II increment in effect where the source is located, the source may have
to assess its impact relative to the Class I increment applicable on
the Reservation. The Class I designation may also trigger PSD review
(including best available control technology and air quality analyses)
for a new major stationary source or major modification which would
construct within 10 kilometers of the Class I boundary and whose
emissions rate or net emissions increase would have an impact of 1
microgram per cubic meter (24-hour average) on the Class I area.
As noted, the intergovernmental dispute resolution provisions of
section 164(e) apply to permit disputes. If the Tribal governing body
determines that a proposed source locating outside the Reservation
would cause or contribute to an excess change in air quality within the
Reservation, the Tribe may request that EPA enter into negotiations
with the State to resolve the dispute. If the parties do not reach
agreement, EPA would be required to resolve the dispute:
In the event a dispute occurs over any development or activity
in an adjacent State, the Governor of the affected State [or the
Indian governing body of an affected Tribe] may request the
Administrator to enter into negotiations. If this is not successful,
the Administrator shall then resolve the dispute.
See 1977 CAAA Legislative History, vol. 3 at 530.
Thus, a Tribe or State with a non-Federal Class I area may pursue
their concerns about a proposed source's impact on excess air quality
deterioration within the area through the section 164(e) dispute
resolution process. This is in contrast with the broad authority
conferred on Federal Land Managers to protect Federal Class I areas.
For example, Federal Land Managers must directly certify that a
proposed source causing or contributing to a violation of a Class I
increment in a Federal Class I area nevertheless will
[[Page 56457]]
not adversely impact the area, before a permit may be issued. See,
e.g., section 165(d)(2)(C)(iii) of the CAA.
There is a dilemma that is created by virtue of the
interjurisdictional issues presented. The State has objected to the
Tribe's redesignation because of potential off-Reservation impacts on
economic development. However, to disapprove the Tribe's redesignation
because it may have impacts on activity outside the Reservation would
wholly deprive the Tribe of its decision to provide additional air
quality protection within the Reservation and allow the State to
effectively dictate the air quality increment appropriate for the
Reservation and its populace.
Congress, by the adoption of the permit dispute provisions of
section 164(e), has established a useful and reasonable mechanism to
address this dilemma--providing for consideration and resolution of the
reciprocal interjurisdictional concerns in particular permit
proceedings. In these circumstances, EPA elects to rely on this
statutory mechanism instead of disapproving the redesignation. For the
reasons outlined above and in the final notice approving the
redesignation, EPA does not expect the redesignation to have major off-
Reservation impacts. Further, resolving conflicts in any permit
controversy that actually does arise as a result of the Class I
redesignation is more narrowly tailored than the sweeping decision of
wholly disapproving the Tribe's request. At the same time, any
unresolvable State and Tribal concerns actually raised as a result of
the Class I redesignation may be considered in addressing the permit
dispute. In any actual permit controversy the parties would also be
resolving a dispute where the facts and issues are more concrete and
therefore more fit for resolution than disputes involving general
concerns and allegations. EPA is committed to working with the State
and Tribe to resolve any intergovernmental permit disputes that
actually arise as a result of the Class I redesignation.
Finally, by no means does EPA view the need to advance the public's
understanding of the Tribal Class I redesignation as ending with EPA's
approval of the Tribe's Class I redesignation request. EPA will
continue to help clarify any confusion or misunderstanding. Among other
efforts, EPA will continue to make staff available to answer any public
inquiries about the Class I designation and its potential effects.
Public inquiries should be directed to the EPA contact identified at
the beginning of this notice. Further, in conjunction with today's
decision, EPA is communicating with the Governor's office to reiterate
EPA's willingness to meet with State officials to plan and conduct
additional public outreach efforts.
C. Sufficient Size to Allow Effective Air Quality Management.
The State expressed concern that the redesignation of the
Reservation would not necessarily result in effective air quality
management. The State is concerned that the approximately 635 acre
Reservation is comprised of five land parcels ranging in size from
almost four to 458 acres, separated by different land uses and located
over a large area. The State is therefore concerned that ``it would be
neither realistic nor practicable'' to distinguish the Class I and II
areas in applying the PSD permitting requirements. See Letter from
Edward Z. Fox, Director of the Arizona Department of Environmental
Quality, to Theodore Smith, Sr., Chairman of the Yavapai-Apache Tribe
(Oct. 20, 1993). During the January 12, 1995 meeting with EPA and the
Tribe, the State representative reiterated that he objected to ``a very
untenable and unworkable arrangement with regard to trying to manage
air quality off of these dispersed pieces of Indian land.'' See Trans.
at p. 9.
As noted, in disputes resolving area redesignations, section 164(e)
calls for EPA to consider ``the extent to which the lands involved are
of sufficient size to allow effective air quality management.'' See
also 40 CFR 52.21(t). Neither the statute nor EPA's implementing
regulations elaborate on EPA's consideration of this factor.
The legislative history suggests that Congress intended to give
States and Tribes broad discretion regarding the size and boundaries of
areas redesignated. The report of the House Committee on Interstate and
Foreign Commerce provides that if a State or Tribe ``wished to
designate some parts class I and retain some class II areas, it may
draw classification boundaries in any way it chooses--by entire air
quality control regions, along county lines, or even along smaller
subcounty lines.'' See H.R. Rep. No. 294 at 147 (1977) reprinted in
1977 CAAA Legislative History, vol. 4 at 2614. Further, a colloquy
between Senators Garn and Muskie during the Senate's consideration of
the Conference report indicates that it would be permissible to
redesignate a single mine. See 1977 CAAA Legislative History, vol. 3 at
371.
The State did not specify why the Class I designation for the
Reservation parcels would create difficulty in distinguishing between
the Class I and II areas in implementing PSD permitting requirements,
rendering implementation of the PSD program ``untenable and
unworkable.'' EPA is uncertain what particular underlying concerns or
obstacles informed the State's objection.
Over the years, air quality management tools, techniques and
policies have become increasingly sophisticated and refined. Currently,
air quality planning and management strategies apply to a variety of
area sizes and configurations. For example, EPA, in coordination with
States, has established nonattainment areas in States for the purpose
of implementing nonattainment planning requirements for the lead NAAQS
that encompass areas of only a few square kilometers. See, e.g., 40 CFR
81.310 (lead nonattainment area in Florida that consists of ``[t]he
area encompassed within a radius of (5) kilometers centered at UTM
coordinates: 364.0 East, 3093.5 North, zone 17 (in city of Tampa)'')
and 40 CFR 81.311 (lead nonattainment area in Georgia that consists of
``[t]hat portion of [Muscogee] county which includes a circle with a
radius of 2.3 kilometers with the GNB, Inc., lead smelting and battery
production facility in the center''). Conversely, there is an ozone
transport region under the CAA for the purpose of ozone nonattainment
planning that spans from Maine to northern Virginia. See section 184(a)
of the CAA.
As noted in parts II.A and IV.B, a PSD permit applicant for a
source proposing to locate outside the Reservation may have to
demonstrate that the proposed source does not cause or contribute to a
violation of the applicable increment in either the Class II area in
which it is proposing to locate or within the Tribe's Class I area.
Thus, applicants may need to include additional receptor points in
their Class II area air quality modeling analyses to assess the effect
of potential emissions on the Class I area parcels. As the permitting
authority, the State would review the analyses to determine whether in
the State's informed judgment the demonstration is sound.
EPA's technical staff examined whether it would be difficult to
perform a PSD air quality modeling analysis that assessed the impacts
of a proposed source on the Class II area in which it was located as
well as the five separate, disperse Class I parcels. EPA staff
concluded that based on existing modeling tools it would be relatively
simple and practicable for a proposed source to project its impact on
the Class I area parcels and relatively straight-forward for the
reviewing permitting authority to evaluate the analyses. Further, such
Class I area analyses may
[[Page 56458]]
already be required for a source locating in the area based on the
source's proximity to the Sycamore Canyon Wilderness Area, a Federal
Class I area. This analysis is included in the EPA's Technical Support
Document, which is available for public review in the docket identified
at the beginning of this notice.
EPA is the permitting authority for new major stationary sources
that propose to locate within the boundaries of the Yavapai-Apache
Reservation. EPA does not believe that its ability or the State's
ability to effectively administer the PSD program within or outside the
Yavapai-Apache Reservation will be significantly affected by the
designation of the five separate parcels as Class I areas.
EPA, States and local governments routinely manage air quality
management situations that are of greater complexity than the
consideration of additional Class I areas within an area that is
exclusively subject to PSD, containing no overlapping nonattainment
areas and associated nonattainment planning requirements.
The State of Arizona contains a number of areas with complex air
quality situations. Phoenix, for example, has one set of boundaries for
ozone and carbon monoxide nonattainment planning purposes, another set
of boundaries for particulate matter nonattainment planning purposes
and overlapping portions of the City that are subject to PSD for other
pollutants that are attainment or unclassifiable with respect to the
NAAQS. See 40 CFR 81.303.
Arizona also has a number of Federal Class I areas. See 40 CFR
81.403. The City of Tucson contains a carbon monoxide nonattainment
area with a specific set of boundaries. The metropolitan area is
subject to PSD for other pollutants and is generally a Class II area.
In addition, the City is bordered on its eastern and western boundaries
by two separate parcels of the Saguaro National Monument, a Federal
Class I area. Thus, in the Tucson area, it may be necessary to manage
source impacts on the carbon monoxide nonattainment area, Class II
increments and the two separate Class I area parcels.
In the Verde Valley, the State manages a PSD program that
encompasses the Sycamore Canyon Wilderness Area, which is a mandatory
Federal Class I area. Therefore, under current circumstances, the State
may have to ensure that a major stationary source or major modification
proposing to locate in the area demonstrate whether emissions would
cause or contribute to violations of the Class I and II increments.
Thus, while the redesignation of the Yavapai-Apache Reservation as
a non-Federal Class I area may increase the number of Class I increment
analyses that the State would need to review, consideration of the
consumption of Class I increment in addition to the consumption of
Class II increment would not preclude the State from effectively
implementing the PSD program. The PSD program frequently applies in
areas that are comprised of disparate classifications and land uses. In
addition, EPA will make technical staff and resources available to the
State in the event the State encounters obstacles to effective air
quality management as a result of the Class I redesignation.
In the circumstances at issue, the Tribe has requested that its
entire Reservation be redesignated as a Class I area. EPA is reluctant
to establish rigid requirements regarding the geographic size,
geographic orientation, or population size of a Reservation, that would
disqualify certain Tribes as a threshold matter from exercising the
authority conferred under section 164(c) to redesignate lands within
Reservation boundaries.
EPA would be inclined to a different outcome regarding the
consideration of air quality management issues if EPA was faced with a
specious redesignation request. For example, EPA would be disinclined
to resolve an intergovernmental dispute by approving a Class I
redesignation for a very small portion of a State or Reservation where
the purpose of the request is not to provide air quality benefit for
the requesting jurisdiction but to interpose effects and accompanying
air quality management burdens outside of the jurisdiction.
Here, however, the Tribe's redesignation request indicates that
protecting the health and welfare of the Reservation population is a
primary concern. See Yavapai-Apache Tribe Air Quality Redesignation
Plan, Sept. 1993. Moreover, the Tribe has requested that its entire
Reservation be redesignated as a Class I area. That historical events
have diminished the size of the Tribe's Reservation should not
disqualify the Tribe from obtaining additional health and welfare
protection for its Reservation populace.
D. Air Quality Related Values
The State also questioned whether the Reservation ``is of
sufficient size to * * * have air quality-related values.'' See Letter
from Fife Symington, Governor of Arizona, to Felicia Marcus, EPA
Regional Administrator (Dec. 5, 1994). The State averred that in
addressing a redesignation dispute under section 164(e) EPA is required
to consider ``whether the area can be effectively managed for air
quality values, meaning the redesignated area, which is the Tribal
lands, or whether there are air quality related values on the
Reservation that need to be protected.'' See Trans. at ps. 7-8. The
State further contended that the redesignation is inappropriate because
the answer to both questions is no. See Trans. at p. 8.
The State's concern that the Reservation is of insufficient size to
have air quality related values was not clearly explained. The State's
December 5, 1994 letter raising this concern referred to a previous
October 20, 1993 correspondence between the State and the Tribe as
having specifically raised this issue. However, the October 20, 1993
correspondence does not mention air quality related values. See Letter
from Edward Z. Fox, Director Arizona Department of Environmental
Quality, to Theodore Smith, Sr., Yavapai-Apache Tribal Chairman.
Section 164(e) provides that in resolving disputes about area
redesignations EPA 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.'' The
State appears to have combined the two criteria into one, objecting
that the redesignation should be denied because ``air quality values''
cannot be effectively managed on a Reservation of this size. In part
IV.C, EPA addressed the State's concerns about whether the Reservation
lands are of sufficient size to allow for effective air quality
management. In this discussion, EPA addresses the separate
consideration of ``air quality related values'' (AQRVs), including the
State's assertion that the Tribe's redesignation is not warranted
because there are no AQRVs on the Reservation that need to be
protected.
Section 164(e) does not make identification of AQRVs that need to
be protected a necessary condition of a redesignation. The final
sentence of section 164(e) provides that in resolving redesignation
disputes EPA must consider the extent to which the lands involved have
AQRVs. A preceding sentence in section 164(e) explicates the meaning of
this passage by calling for EPA to ``protect the air quality related
values of the lands involved'' in resolving intergovernmental disputes
over proposed PSD permits and redesignations. Thus, under section
164(e) EPA is to consider the AQRVs of
[[Page 56459]]
the lands involved in a redesignation, ensuring that any AQRVs are
adequately protected in resolving intergovernmental disputes.
The provisions of section 164(e) do not, by contrast, require EPA
to disapprove a decision by a State or Tribe to redesignate lands
because a disagreeing State or Tribe believes the area does not have
attributes that need to be protected. In addition to disputes over
Class I redesignations, the terms of section 164(e) apply to
intergovernmental disputes over a decision by a State or Tribe to give
their Class II lands less air quality protection by redesignating them
as Class III. The State's interpretation of section 164(e) that a
redesignation is inappropriate if the area does not have AQRVs that
need to be protected would not make sense in the context of a dispute
over a Class III redesignation. It would be illogical for EPA to
disapprove a redesignation to allow less air quality protection in an
area because the requesting State or Tribe has failed to demonstrate
that the lands involved have AQRVs that need to be protected.
Further, section 164(b) of the CAA and EPA's implementing
regulations governing redesignation requirements do not require that a
Tribe or State requesting a redesignation demonstrate or establish that
the affected lands have AQRVs. See 40 CFR 52.21(g)(4). In addition, the
legislative history accompanying the adoption of the PSD provisions,
discussed in part IV.A, indicates that Congress intended to give States
and Tribes broad discretion in redesignating areas and to restrict
EPA's authority to override or disapprove their judgment.
AQRVs are given special protection under section 164(e) at least in
significant part because of this local decisionmaking discretion. The
PSD program adopted by Congress in 1977 modified EPA's pre-1977
administrative program to provide greater local discretion in
redesignation decisions by ``removing the Federal land manager's
authority to control classification of Federal lands.'' See H.R. Rep.
No. 294 at 7-8 reprinted in 1977 CAAA Legislative History, vol. 4 at
2474-75.
Congress specified certain mandatory Federal Class I areas that may
not be redesignated. See section 162(a) of the CAA. Congress also
called for the Federal Land Managers to review certain Federal Class II
areas--national monuments, primitive areas, and national preserves--and
recommend to the affected States any appropriate areas for
redesignation as Class I ``where air quality related values are
important attributes of the area.'' See section 164(d) of the CAA.
However, as indicated, Congress ultimately left it to the judgment of
States, not the Federal Land Managers, to decide whether to redesignate
these Class II Federal lands as Class I areas. Thus, by calling for EPA
to protect any identified AQRVs in resolving intergovernmental
disputes, section 164(e) ensures AQRV protection when a State has
accepted the Federal Land Manager's recommendation under section 164(d)
to request a Class I redesignation for Class II Federal lands where
AQRVs are important attributes. See generally H.R. Rep. No. 294 at 148-
49 reprinted in 1977 CAAA Legislative History, vol. 4 at 2615-16; see
also section 160(2) of the CAA.
The term ``air quality related values'' is not defined in the CAA.
The term ``air quality related values (including visibility)'' is used
in conjunction with Federal Class I areas. See generally section 165(d)
of the CAA. For Federal lands, the legislative history indicates that
the term AQRVs includes: ``the fundamental purposes for which such
lands have been established and preserved by Congress and the
responsible Federal agency. * * * [U]nder the 1916 Organic Act to
establish the National Park Service * * * the purpose of such national
park lands `is to conserve the scenery and the natural and 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.''' See S. Rep. No. 197, 95th
Cong., 1st Sess. at 36 reprinted in 1977 CAAA Legislative History, vol.
3 at 1410. Federal Land Managers have identified, for example, values
such as visibility, sensitive streams and watershed, and park
vegetation as AQRVs for particular resources and impaired visibility,
stream acidification and foliar injury as potential adverse impacts.
See, e.g., 55 FR 38403 (Sept. 18, 1990).
The Tribe's redesignation request addresses the Tribe's desire to
ensure a clean and safe environment by maintaining high air quality
standards for its citizens including, in particular, the elderly and
young, to ensure that air quality within the Reservation is not
adversely impacted by harmful industrial development, and to ensure
that its resources are protected for future generations. The Tribe's
request recounts the history of the Reservation and the special
religious and cultural value it holds for Tribal members. The submittal
describes the importance of the Class I redesignation in protecting
vegetation, wildlife and water resources, and visual air quality, and
expresses the Tribe's concern about adverse impacts on these resources.
The Tribe's submittal describes the unique natural resources in the
area where the Reservation is located, including: the Montezuma Castle,
Montezuma Well and Tuzigoot National Monuments; the Prescott, Coconino
and Kaibab National Forests; the Sycamore Canyon Wilderness Area, which
is a Federal Class I area; and the ``red rock'' country near Sedona.
See Yavapai-Apache Tribe Air Quality Redesignation Plan, Sept. 1993.
There may be a number of reasons for a State or Tribe to propose
redesignation of its lands as Class I, including its judgment that
decreasing the amount of allowable air quality deterioration is in the
interests of the health and welfare of its community, independent of
AQRVs. The purposes of the PSD program are broad and include:
protection of health and welfare from actual or potential adverse
effects, notwithstanding attainment of the national ambient air quality
standards; and assuring that economic growth will occur in a manner
consistent with the preservation of existing clean air resources. See
section 160 (1) and (3) of the CAA.
The Yavapai-Apache Tribe has offered many reasons why it is
requesting a Class I redesignation. The Clean Air Act generally calls
for EPA to defer to such judgments. EPA declines to disapprove the
Tribe's redesignation request because of the State's concern that the
Tribe has not identified AQRVs that need to be protected.
E. Redesignation Does Not Resolve Current Air Quality Problems
The State's objection to the proposed redesignation because it does
not address the Tribe's concern about ``current problems with the
health and welfare of Tribal members'' and because such concerns ``will
have to be resolved otherwise in some other form'' is problematic. See
Trans. at p. 8.
If no steps were taken to protect current air quality until all
pre-existing air quality problems were addressed, new air quality
problems would be created in the interim that in turn require remedial
action. This would be at odds with the purpose of the CAA to ``protect
and enhance'' the quality of air resources. See section 101(b)(1).
Further, the PSD program is fundamentally premised upon the efficacy
of, at least, preventing existing air quality from significantly
deteriorating.
Moreover, as noted, Federal law and policy provide that the Tribe
as a sovereign government may decide whether requesting a Class I
[[Page 56460]]
redesignation for its Reservation is in the interests of Tribal health
and welfare. The Tribe summarized its decision to request a Class I
designation as follows:
All people need a clean environment. The Yavapai-Apache Tribe
desires to maintain high quality air standards for its citizens by
redesignating Reservation lands as a Class I Clean Air area.
* * * The Clean Air Act specifically provides a mechanism for
any Indian tribe to promote and maintain clean air by redesignating
reservation lands as Class I areas. Considering the uncertainty of
``safe levels'' of air pollution, the Yavapai-Apache Tribe seeks
additional protection by redesignating its lands to Class I air
quality under the Clean Air Act.
Presently, Reservation lands are designated Class II allowing
for increases in industrial pollution. A redesignation to Class I
would reduce the permissible levels of pollution to ensure a clean
and safe environment.
See Yavapai-Apache Tribe Air Quality Redesignation Plan, September 1993
at p. 1. EPA declines to disapprove the Tribe's decision to provide
prospective air quality protection because of the State's concern that
the redesignation will not remedy extant air quality problems.
F. Additional Concern Regarding Potential Future Redesignations
Governor Symington expressed the following additional concern in a
letter to U.S. EPA Administrator Browner dated October 3, 1995:
* * * approval of this redesignation may have effects far
beyond the Verde Valley area. Twenty-one reservations are located,
in whole or in part, in Arizona. A proliferation of redesignation
requests and approvals for other reservations could have far-
reaching consequences for the future of the State and its economic
well-being.
See Letter from Governor Fife Symington to Administrator Carol Browner.
In separate communication, Governor Symington posed whether Tribes
whose reservations were located in proximity to large urban areas may
redesignate to Class I. As discussed at length in both this notice and
the accompanying notice granting the Yavapai-Apache Tribe's request,
the Clean Air Act provides that federally recognized tribes may
redesignate their reservation lands as they deem appropriate. Each such
request must be individually evaluated as set forth in Section 164 of
the Act and the implementing regulations at 40 CFR 52.21(g). EPA's
action today redesignating the Yavapai-Apache Reservation is based on
consideration of the specific factors relevant to this redesignation
request. EPA does not believe that speculation concerning potential
future requests for redesignation by other tribes is an appropriate
consideration in granting or denying the request at hand.
Similarly, it would be difficult to speculate at this time about
the general impact, economic or otherwise, if such a request for
redesignation in proximity to an urban area were approved. We have
explained in the Federal Register notice for the Yavapai-Apache
Redesignation that a Class I designation creates requirements only for
the construction or modification of major sources of air pollution.
Smaller sources of air pollution would not be affected by a Class I
designation, and permit applications for ``major sources'' are
generally infrequent. On the other hand, the Class I area would be
afforded greater air quality protections if one or more major sources
were proposed for construction. Specifically, the Class I designation
establishes a more stringent air quality standard that allows less
emissions growth than in surrounding Class II areas over a certain
baseline. A Class I designation would generally only affect those
sources emitting pollutants for which an urban metropolitan area is
designated attainment. In contrast, emissions of those pollutants for
which the urban area is designated nonattainment would be mitigated by
emissions offsets and more stringent control technology requirements.
In addition, Tribes whose requests for redesignation have been approved
would be able to invoke the dispute resolution provisions in section
164(e) to contest the permitting of any major source emitting criteria
pollutants-- whether under PSD or nonattainment new source review--with
visibility impairment or other air quality related values serving as a
basis for the dispute.
With respect to the review of PSD permit applications for major
sources proposing to locate near tribal class I areas, EPA will publish
shortly an advance notice of proposed rulemaking (ANPR) that will
address issues related to non-federal class I areas. The decision to
develop an ANPR follows a June 4, 1996, meeting among Mary Nichols,
EPA's Assistant Administrator for Air and Radiation and representatives
for the state environmental agencies of Michigan and Wisconsin. The
state representatives expressed concern about the lack of specific
procedures governing the review of PSD permit applications for major
sources locating on state lands near tribal class I areas. In that
meeting, Assistant Administrator Nichols agreed that rules specifically
addressing the PSD permit review process for sources potentially
affecting non-federal class I areas might be useful in clarifying the
roles and responsibilities of the affected parties. The ANPR is
intended to raise specific issues and solicit input from all interested
parties. See Letters from Carol M. Browner, EPA Administrator, to
Michigan Governor John Engler and Wisconsin Governor Tommy G. Thompson,
both July 16, 1996.
While it is likely that issues and disputes will arise from time to
time regarding impacts on reservations which have been redesignated to
Class I, we do not expect such disputes to be frequent or
insurmountable. As we have noted, there are many Class I areas located
adjacent to communities that are Class II areas. We have mentioned
Tucson's proximity to the Saguaro National Monument, a Federal Class I
area. Economic growth is not inconsistent with the management of the
more stringent air quality standard of the Class I area, as economic
development in Tucson has not been hindered by its close proximity to
the Saguaro National Monument Class I area. In addition, there are
seven Class I areas either within or adjacent to the Los Angeles
metropolitan area.
V. Administrative Review
A. Executive Order 12866
The Office of Management and Budget has exempted this action from
centralized regulatory review pursuant to section 6 of Executive Order
12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Section 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities. See 5 U.S.C. sections
603 and 604. Alternatively, EPA may certify that the rule will not have
a significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000. The decision announced in this notice is not a rule within the
meaning of the Regulatory Flexibility Act. In any event, EPA's
resolution of the intergovernmental dispute and the final rulemaking
action to approve the Tribe's PSD redesignation request, published
elsewhere in today's Federal Register, do not impose new requirements
on small entities, may only potentially have an impact on major
stationary sources, as defined by 40 CFR 52.21, and therefore will not
have a significant economic impact on a substantial number of small
entities.
[[Page 56461]]
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 205 allows EPA to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if EPA publishes with the final rule an explanation why
that alternative was not adopted.
The decision announced in this notice is not a regulation or rule
within the meaning of the UMRA. In any event, EPA's resolution of the
intergovernmental dispute announced in this notice and the final
rulemaking action to approve the Tribe's PSD redesignation request,
published elsewhere in today's Federal Register, are not subject to the
requirements of sections 202 and 205 of the UMRA because they do not
contain Federal mandates 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.
Authority: 42 U.S.C. 7401-7671q.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: October 2, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-27848 Filed 10-31-96; 8:45 am]
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