[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Rules and Regulations]
[Pages 8247-8263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3659]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 71
[FRL-6300-9]
RIN 2060-AG90
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action promulgates regulations setting forth EPA's
approach for issuing Federal operating permits to covered stationary
sources in Indian country, pursuant to title V of the Clean Air Act as
amended in 1990 (CAA). Consistent with EPA's Indian Policy, the CAA
authorizes the Agency to protect
[[Page 8248]]
air quality in Indian country by administering a Federal operating
permits program in areas lacking an EPA-approved or adequately
administered operating permits program. Implementation of today's rule
will benefit the environment by assuring that the benefits of title V,
such as increased compliance and resulting decreases in emissions,
extend to every part of Indian country. This action potentially applies
to all industry sectors.
EFFECTIVE DATE: March 22, 1999.
ADDRESSES: Supporting information used in developing the promulgated
rules is contained in Docket No. A-93-51. This docket is available for
public inspection and copying between 8:30 a.m. and 3:30 p.m., Monday
through Friday, at EPA's Air Docket, Room M-1500, Waterside Mall, 401 M
Street SW, Washington, DC 20460. A reasonable fee may be charged for
copying.
FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919-541-
3189), U.S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, Information Transfer and Program Integration
Division, Mail Drop 12, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Background Information Document
A background information document (BID) for the promulgated rule
may be obtained from the docket. Please refer to the ``Federal
Operating Permits Program--Response to Comments.'' The BID contains a
summary of the public comments made on the proposed Federal Operating
Permits Program rule published on March 21, 1997 and the public
comments made on the proposed Federal Operating Permits Program rule
published on April 27, 1995 that pertain to the subject matter of this
rulemaking, and EPA responses to the comments. Comments addressed in
the preamble to this rule are generally not duplicated in the BID.
Regulated Entities
Entities potentially regulated by this action are stationary
sources that (1) are located in Indian country or an area for which EPA
believes the Indian country status is in question; 1 and (2)
are major sources, affected sources under title IV of the CAA (acid
rain sources), solid waste incineration units required to obtain a
permit under section 129 of the CAA, or sources subject to a standard
under section 111 or 112 of the CAA except those area sources that have
been exempted or deferred from title V permitting requirements.
Regulated categories and entities include:
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\1\ The EPA believes that a few sources that are subject to
title V requirements may be located in areas where, in the Agency's
judgment, there is a bona fide question whether the area is Indian
country within the meaning of 18 U.S.C. Sec. 1151 and as defined in
this rule. As described more fully elsewhere in this preamble, EPA
believes the objectives of the Act and protection of air quality
will be more effectively served if EPA administers a part 71 program
in such areas. Unless it is otherwise apparent from the context,
when this preamble uses the term ``Indian country,'' it is intended
that the term also refer to areas for which EPA believes there is a
bona fide question about whether the area is Indian country.
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Category Examples of regulated entities
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Air pollution sources in all Major sources under title I,
industry sectors located in Indian section 112, or section 302 of
country. the CAA; affected sources under
title IV of the CAA (acid rain
sources); solid waste
incineration units required to
obtain a permit under section 129
of the CAA; sources subject to
standards under section 111 or
112 of the CAA that are not area
sources exempted or deferred from
permitting requirements under
title V.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the applicability criteria in section 71.3(a) of the rule, the
definition of ``Indian country'' in section 71.2 of the rule, and the
provisions of section 71.4 of the rule. If you have questions regarding
the applicability of this action to a particular entity, consult the
person listed in the preceding FOR FURTHER INFORMATION CONTACT section
or the EPA Regional Office that is administering the part 71 permit
program for the area in which the relevant source or facility is
located.
Outline
The contents of today's preamble are listed in the following
outline:
I. Background of the Final Rule
II. Summary of the Final Rule
III. Major Issues Raised by Commenters
A. Scope of the Federal Program
B. Effect of State Law
C. Determining Whether Sources Are Subject to the Federal
Program
IV. Changes from the Proposed Rules and the 1996 Final Rule
A. Geographic Area Subject to the Part 71 Program
B. Applicability Determinations
C. Permit Fee Relief
D. Duty to Administer the Part 71 Program
E. Publication of Notice of Final Permitting Actions
F. Technical Amendment to Sec. 71.4(f)
G. Effective Date of Program
V. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Regulatory Flexibility
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
F. Submission to Congress and the General Accounting Office
G. Executive Order 13045
H. Executive Order 12875: Enhancing Intergovernmental
Partnership
I. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
J. National Technology Transfer Advancement Act
I. Background of the Final Rule
Title V of the CAA as amended in 1990 (42 U.S.C. 7661 et seq.)
requires that EPA develop regulations that set minimum standards for
State operating permits programs. Those regulations, codified in part
70 of chapter I of title 40 of the Code of Federal Regulations, were
promulgated on July 21, 1992 (57 FR 32250). Title V also requires that
EPA promulgate, administer, and enforce a Federal operating permits
program when a State does not submit an approvable program within the
time frame set by title V or does not adequately administer and enforce
its EPA-approved program. On April 27, 1995, EPA proposed regulations
(60 FR 20804) (hereinafter ``1995 proposal'') setting forth the
procedures and terms under which the Agency would administer a Federal
operating permits program. The final rule was published on July 1, 1996
(61 FR 34202) and is codified at 40 CFR part 71. The regulations
authorize EPA to issue permits when a State, local, or Tribal agency
has not developed an approved program, has not adequately administered
or enforced its approved operating permits program, or has not issued
permits that comply with the applicable requirements of the Act.
Indian Tribes are not required to develop operating permits
programs, though EPA encourages Tribes to do so. See, e.g., Indian
Tribes: Air Quality Planning and Management, 63 FR 7253 (February 12,
1998) (hereinafter ``Tribal Authority Rule''). The EPA expects that
most Tribes will not develop title V operating permit programs, in part
due
[[Page 8249]]
to the resources required to develop such a program. Within Indian
country, EPA believes it is generally appropriate that EPA promulgate,
administer, and enforce a part 71 Federal operating permits program for
stationary sources until Tribes receive approval to administer their
own operating permits programs.
In the 1995 proposal, EPA stated its intention to implement part 71
programs to ensure coverage of Tribal areas which EPA proposed to
define as ``those lands over which an Indian Tribe has authority under
the Clean Air Act to regulate air quality.'' The final part 71 rule did
not include provisions relating to the boundaries of part 71 programs
in Tribal areas because EPA planned to address these issues in a rule
that specified provisions of the CAA for which EPA believes it is
appropriate to treat Indian Tribes in the same manner as States,
pursuant to section 301(d)(2) of the CAA. See 59 FR 43956 (August 25,
1994) (``Indian Tribes: Air Quality Planning and Management,''
hereinafter ``proposed Tribal Authority Rule'').
Subsequently, on March 21, 1997, EPA proposed a different approach
to administering the part 71 program for areas of Indian country that
are not covered by an approved State or Tribal part 70 program
(hereinafter ``1997 proposal''). See 62 FR 13748. In the 1997 proposal,
EPA explained that the 1995 proposal's definition of ``Tribal area''
(i.e., the Indian lands where EPA would exercise authority to implement
a Federal permit program) was inappropriate. The 1995 proposal was
generally based on two aspects of the proposed Tribal Authority Rule:
EPA's interpretation of Tribal jurisdiction under the CAA and the
procedures by which Tribes could demonstrate jurisdiction to implement
their own programs under the CAA. The approach of the 1995 proposal
would have required Tribes to establish their jurisdiction over certain
areas of Indian country before EPA could implement a Federal program
for those areas. The EPA noted in the 1997 proposal that the approach
of the 1995 proposal could create gaps in program coverage. The EPA
believes it is more consistent with the CAA that EPA administer part 71
programs in Indian country without requiring any jurisdictional showing
on the part of the Tribe. The Agency's authority under the CAA is not
premised on Tribal authority. Furthermore, in proposing that EPA
implement part 71 throughout Indian country, the 1997 proposal was
consistent with the Agency's general policy of administering
environmental programs in Indian country until a Tribe assumes
regulatory responsibility. See, e.g., EPA's 1984 Indian Policy
(``Policy for the Administration of Environmental Programs on Indian
Reservations,'' signed by William D. Ruckelshaus, Administrator of EPA,
dated November 8, 1984), reaffirmed by EPA Administrator Browner in
1994 (memorandum entitled ``EPA Indian Policy,'' signed by Carol M.
Browner, Administrator of EPA, dated March 14, 1994); Underground
Injection Control Programs for Certain Indian Lands, Final Rule, 53 FR
43096, 43097 (Oct. 25, 1988). The docket for today's rulemaking
contains copies of these documents.
In the 1997 proposal, EPA proposed to interpret the CAA as
authorizing EPA to protect air quality by directly implementing
provisions of the CAA throughout Indian country. Further, the 1997
proposal stated EPA's belief that under the CAA, Congress intended to
allow eligible Tribes to implement programs for all air resources
within the exterior boundaries of Indian reservations without
distinguishing among various categories of on-reservation land. In
light of this territorial view of Tribal jurisdiction, other provisions
of the CAA, and the legislative history, the proposal asserted EPA's
belief that Congress preferred that implementation of the CAA in Indian
country be carried out by either EPA or the Tribes. The bases for this
interpretation are discussed in detail in the 1997 proposal at 62 FR
13748, 13750; in section III.A of this preamble; in sections II.A and
II.B of the preamble to the proposed Tribal Authority Rule at 59 FR
43956, 43958-61; and in section II.A of the preamble to the final
Tribal Authority Rule at 63 FR 7254-7260.
Consistent with the Agency's interpretation of the CAA as described
above, in the 1997 proposal, EPA proposed to implement the title V
program even in areas of Indian country where a State previously may
have been able to demonstrate jurisdiction. The EPA would not implement
a part 71 program when a part 70 program has been explicitly approved
by EPA for the area, unless such approval was later withdrawn. Under
the 1997 proposal, where there was a ``dispute'' as to whether a
particular area is Indian country, EPA would run the title V program in
that area until the dispute was satisfactorily resolved. The proposal
suggested that State or Tribal governments could submit to EPA
sufficient information to demonstrate to EPA's satisfaction that a
question exists about whether an area is Indian country.
In the 1997 proposal, EPA proposed to add a definition of the term
``Indian country'' as defined in 18 U.S.C. Sec. 1151. In addition, EPA
proposed to delete the term ``Tribal area'' from the rule.2
Consistent with the proposal's approach to implementing the title V
program in Indian country, EPA proposed not to adopt regulatory
language (from the 1995 proposal) that would have referred to Tribal
assertions of jurisdiction. Instead, proposed section 71.4(b) would
establish EPA's authority to administer the part 71 program within
Indian country even where the Tribe had not demonstrated its
jurisdiction over the area. Also, unlike the 1995 proposal, the 1997
proposal did not provide that EPA would solicit comments on the
boundaries of the program through area-specific rulemakings or that
governmental entities would be notified of the proposed boundaries.
Rather, the issue of whether a specific source was subject to the part
71 program would be resolved in the context of permitting the source.
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\2\ Note that the final 1996 rule did not adopt a definition of
``Tribal area.'' The 1995 proposal contained a proposed definition
for the term which EPA deferred adopting pending today's follow-up
rulemaking.
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In the 1997 proposal, EPA stated that sources that are uncertain as
to whether they are located in Indian country should confer with the
appropriate Regional office, and that EPA would undertake outreach
efforts to notify sources that the Agency believes would be subject to
the program. The proposal stated that even sources that do not receive
notification would be responsible for ascertaining whether they are
located in Indian country. In the proposal, EPA solicited comments on
what steps EPA should take to provide notice to sources that they are
located in Indian country.
Finally, EPA proposed to clarify through a proposed revision to
section 71.4(b) that EPA would administer the part 71 program
throughout Indian country except where a part 70 program has been given
full or interim approval.
II. Summary of the Final Rule
The final rule establishes EPA's approach for issuing part 71
permits to sources in Indian country. The EPA will administer the part
71 program within Indian country unless a Tribal or State part 70
program has been explicitly approved for the area. The EPA will
administer the program within Indian country even where a Tribe has not
established its authority to regulate air resources within the same
area. To assure that there are no gaps in title V coverage for sources
in Indian country, EPA will also administer the part 71 program within
areas for which EPA
[[Page 8250]]
believes the Indian country status is in question, until EPA explicitly
approves or extends approval of a State or Tribal program to cover the
area.
The EPA will consult with Tribes, the Department of the Interior
(DOI), States, and stakeholders as needed to assess whether sources are
located in Indian country. The EPA will not conduct additional,
separate notice and comment rulemakings, but will provide notice to
State and local governments and Tribes each time it notifies sources
that they are subject to the part 71 program.
Within a year of the effective date of the program (or some earlier
deadline set by the EPA Regional Offices), sources that are subject to
the program must submit a permit application. Sources that become
subject to the program at a later date must submit permit applications
within a year of becoming subject to the program.
Sources are responsible for ascertaining whether they are subject
to the part 71 program. However, EPA will conduct outreach and provide
notice to sources that it believes are subject to the part 71 program.
Further, sources that are uncertain if they are located in an area
covered by the program or that have other questions concerning whether
they are subject to the program may informally consult with their EPA
Regional Office or may formally request EPA to make an applicability
determination. Submission of a formal request does not stay the permit
application deadline. The EPA's applicability determinations made
pursuant to section 71.3(e) are final Agency actions for judicial
review purposes under CAA section 307(b). The EPA will publish notice
of final permitting actions (including revision, issuance and denial of
permits) in the Federal Register.
Sources that are subject to the program must pay permit fees, but
EPA may reduce permit fees for sources that are located in areas for
which EPA believes the Indian country status is in question and that
have also paid permit fees to a State or local agency that has
attempted to apply its EPA-approved part 70 program in the area.
Sources that are explicitly determined to be located in Indian country
are not eligible for a fee reduction.
Although EPA does not generally recognize State or local air
regulations as being effective within Indian country for purposes of
the CAA, today's rule does not address the validity of State and local
law and regulations with respect to sources in Indian country or the
authority of State and local agencies to regulate such sources for
purposes other than the CAA. Rather, this rule describes the Agency's
authority to administer the Federal Operating Permits Program and the
Agency's general position that State and local law do not affect the
applicability of this program in Indian country.
The effective date of the part 71 program in Indian country is
March 22, 1999.
III. Major Issues Raised by Commenters
A. Scope of the Federal Program
Under today's rule, the part 71 program will be implemented
throughout Indian country. The Federal program will apply except where
a part 70 program has been explicitly approved by EPA to cover an area
of Indian country. The EPA generally will implement the part 71 program
even in areas of Indian country where a State may be able to
demonstrate jurisdiction. As explained in detail in section III.A.2
below, EPA's view of its authority is supported by CAA sections
301(d)(4) and 301(d)(2)(B) and several other provisions of the CAA as
well as its legislative history.
1. Comments on the 1997 Proposal
The EPA received numerous comments regarding the scope of the
Federal title V program for Indian lands. Several State and industry
commenters assert that Indian country is not the appropriate scope for
the part 71 rule and suggest alternatives to using Indian country.
Several industry commenters believe that the Federal program should be
limited to ``Tribal areas'' as proposed to be defined in the 1995
proposal. A State commenter believes ``reservation lands'' would be
more consistent with the statute. Tribal commenters generally supported
EPA's approach of implementing part 71 throughout Indian country in the
absence of approved part 70 programs.
State and industry commenters assert that EPA does not have
authority to implement the title V program throughout Indian country.
Several State and industry commenters state that the 1997 proposal
ignores State authority, particularly authority over non-Indian-owned
fee lands (fee lands) within reservations. Citing several cases,
including Montana v. United States, 450 U.S. 544 (1981), Brendale v.
Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408
(1989), and Strate v. A-1 Contractors, 117 S.Ct. 1404 (1997), these
commenters assert that States may have authority over fee lands and
that Tribes generally do not have authority over such lands. One State
commenter believes that because States may have jurisdiction over fee
lands, Federal jurisdiction must be determined on a case-by-case basis.
Several State commenters believe that the language in CAA section
301(d)(2)(B) that Tribes may be treated in the same manner as States
for reservations ``or other areas within the Tribe's jurisdiction''
means that Tribes must first make a jurisdictional showing before EPA
may federally implement the CAA in Indian country. One State commenter
asserts that the Indian country standard in the proposed rule is
illogical in light of CAA section 301(d)(2)(B), coupled with the
provision in CAA section 101 ``that air pollution prevention * * * and
air pollution control at its source is the primary responsibility of
States and local governments.''
Several State and industry commenters assert that EPA's authority
to federally implement the title V program is limited to situations
where a State fails to adopt or implement an adequate program. One
industry commenter states that EPA's proposal to extend part 71
throughout Indian country conflicts with CAA sections 502(i) and 505,
which specify those actions EPA may take to override a State's part 70
program and which limit EPA's authority to intervene in an approved
State part 70 program. Several commenters assert that their States have
not failed to adopt or adequately implement part 70 programs. Several
State and industry commenters contend that State programs currently
cover parts of Indian country, including non-Indian-owned lands within
reservations. One State commenter believes that EPA's proposed
interpretation of the CAA as generally authorizing EPA to implement the
title V program even in areas of Indian country where a State may be
able to demonstrate jurisdiction may conflict with CAA section 116,
which the commenter believes establishes that the CAA is not to be
implemented in derogation of State authority to regulate air quality.
Some State and industry commenters disagree with EPA's view, as
described in the 1997 part 71 proposal and the then proposed Tribal
Authority Rule, that Congress intended a territorial approach to Tribal
jurisdiction for all air resources within the exterior boundaries of
Indian reservations without distinguishing among various categories of
on-reservation land. A Tribal commenter agrees with the view expressed
by EPA in those proposals that Congress delegated authority to eligible
Tribes to implement the CAA over all reservation sources. One industry
commenter argues that EPA's
[[Page 8251]]
interpretation that CAA section 301(d) expressed a Congressional
preference for either Federal or Tribal implementation in Indian
country is not correct and that EPA provided no reasonable basis in
support of this interpretation of the CAA. One industry commenter
states that there would not be a jurisdictional void if EPA
administered the program for reservations and a State program is
available for non-reservation areas of Indian country. Several industry
commenters believe that there would be no gap in coverage if EPA
allowed States to implement the title V program over non-Indian-owned
lands within the reservation.
A number of State and industry commenters assert that EPA's
approach of applying the Federal title V program throughout Indian
country is not the most sensible way of implementing the CAA. One
industry commenter states that CAA section 301(d) gives EPA authority
to allow States to provide title V permit coverage over fee lands
within reservations and other non-Indian-owned lands in non-reservation
areas of Indian country. This commenter states that nothing in the CAA
prohibits States from implementing the CAA on non-Indian lands within
reservations. One commenter believes EPA's approach creates a need to
resolve jurisdictional questions even in cases where the Tribe may have
no interest in pursuing jurisdiction. Several commenters state that EPA
should allow facilities currently operating under a State part 70
program to continue unless the Tribe shows jurisdiction. Several
industry commenters express concern that under the proposed approach
they would have to comply with both State title V programs and EPA
title V programs.
State and industry commenters believe there are policy reasons why
EPA should allow States to implement the title V program in Indian
country. Commenters assert that State, rather than EPA, implementation
is more sensible because States have greater experience and resources
and are physically closer to the regulated sources. These commenters
also assert that State implementation of the title V program over non-
Indian-owned lands within Indian country would make State-wide and
interstate planning easier, make State-wide regulation more uniform,
and avoid piecemeal regulation over small tracts of land. One industry
commenter asserts that EPA has not demonstrated that it has the
resources to implement the title V program in Indian country. One
industry commenter asserts that a cooperative approach involving State-
Tribal cooperative agreements would be more effective than Federal
implementation and EPA's approach seems to rule these out.
Some industry commenters believe there is too much uncertainty
about the status of dependent Indian communities and other non-
reservation categories of Indian country. Some commenters are concerned
that under the Indian country standard, title V implementation might
shift among regulators depending on land ownership.
Finally, several State and industry commenters believe that States
should implement the title V program in areas where the Indian country
status is in question. These commenters assert that State
implementation would be more efficient and avoid confusion, delay, and
unnecessary expense for permittees. One commenter asserts that no
environmental benefit would be derived from requiring facilities
operating under an approved State part 70 program to obtain a Federal
part 71 permit while jurisdiction is being resolved.
2. Description of Final Rule and EPA's Response to Comments
Under today's final rule, the Federal title V permitting program
will apply throughout Indian country except where a part 70 program has
been explicitly approved by EPA to cover an area of Indian country. The
EPA's implementation in these areas will continue until EPA explicitly
approves or extends approval of a part 70 program covering an area of
Indian country. The Federal program will also apply in areas for which
EPA believes the Indian country status is in question.
The CAA provides EPA with the authority to run the title V program
in Indian country. In light of the statutory language in CAA sections
101(b)(1), 301(a), 301(d)(2)(B), and 301(d)(4) as well as the overall
statutory scheme, EPA is exercising the rulemaking authority entrusted
to it by Congress to directly implement title V programs throughout
Indian country and in areas for which EPA believes the Indian country
status is in question. See generally, Chevron U.S.A., Inc. v. NRDC, 467
U.S. 837, 842-45 (1984). This interpretation of EPA's authority under
the CAA is based in part on the general purpose of the CAA, which is
national in scope. As stated in CAA section 101(b)(1), Congress
intended to ``protect and enhance the quality of the Nation's air
resources so as to promote the public health and welfare and the
productive capacity of its population'' (emphasis added). Congress
intended for the CAA to be a general statute applying to all persons,
including those within Indian country. See Phillips Petroleum Co. v.
EPA, 803 F.2d 545, 553-558 (10th Cir. 1986) (holding that the Safe
Drinking Water Act applied to Indian Tribes and lands by virtue of
being a nationally applicable statute).
The CAA section 301(a) provides EPA broad authority to issue
regulations that are necessary to carry out the functions of the CAA.
Moreover, several provisions of the CAA call for a Federal program
where, for example, a State fails to adopt a program, adopts an
inadequate program, or fails to adequately implement a required
program. See, e.g., CAA sections 110(c)(1), 502(d)(3), and 502(i)(4).
These provisions exist in part to ensure that whether or not local
governments choose to participate in implementing the CAA, the purposes
of the CAA will be furthered throughout the Nation. Especially in light
of the problems associated with transport of air pollution across State
and Tribal boundaries, it follows that Congress intended that EPA also
would have the authority to operate a Federal program in instances when
Tribes choose not to develop a program, do not adopt an approvable
program, or fail to adequately implement an air program authorized
under CAA section 301(d). Read in the context of the CAA as a whole,
these provisions authorize EPA to implement the CAA in Indian country,
without limiting EPA's authority to areas for which Tribes have made a
jurisdictional showing.
This interpretation is most evident from Congress' grant of
authority to EPA under CAA section 301(d)(4). Section 301(d)(4)
authorizes the Administrator to directly administer provisions of the
CAA so as to achieve the appropriate purpose, where Tribal
implementation of those provisions is inappropriate or administratively
infeasible. EPA has determined that it is inappropriate to subject
Tribes to the deadlines and sanctions provisions of title V. See 40 CFR
Sec. 49.4(h) and (i). That determination triggers EPA's 301(d)(4)
authority to administer the part 71 program for areas over which a
Tribe may potentially receive CAA program approval. As noted in the
final Tribal Authority Rule, EPA interprets the CAA as establishing a
territorial approach to CAA implementation within Indian reservations
by delegating to eligible Tribes CAA authority over all reservation
sources without differentiating among the various categories of on-
reservation lands. 63 FR 7253-7258. In addition, the CAA authorizes
Tribes to implement CAA programs in non-reservation areas over which a
Tribe has jurisdiction, generally
[[Page 8252]]
including all areas of Indian country. Id. at 7258-7259.
Under CAA section 301(d)(4), Congress authorized EPA to maintain
the territorial approach by implementing the CAA throughout Indian
reservations in the absence of an EPA-approved Tribal program. The EPA
believes that Congress authorized the Agency, consistent with EPA's
Indian Policy, to avoid the checkerboarding of reservations based on
land ownership by federally implementing the CAA over all reservation
sources in the absence of an EPA-approved Tribal program. See S. Rep.
No. 228, 101st Cong., 1st Sess. 79 (1989)(implementation of the CAA to
be in a manner consistent with EPA's Indian Policy). In addition,
section 301(d)(4) authorizes the Agency to implement the CAA in non-
reservation areas of Indian country in order to fill any gap in program
coverage and to ensure an efficient and effective transition to Tribal
programs.
The EPA's interpretation of CAA section 301(d) as authorizing EPA
implementation throughout Indian country is also supported by the
legislative history. S. Rep. No. 228, 101st Cong., 1st Sess. 80 (1989)
(noting that CAA section 301(d) authorizes EPA to implement CAA
provisions throughout ``Indian country'' where there is no Tribal
program); Id. at 80 (noting that criminal sanctions are to be levied by
EPA, ``consistent with the Federal government's general authority in
Indian Country''); Id. at 79 (the purpose of section 301(d) is to
``improve the environmental quality of the air wit[h]in Indian country
in a manner consistent with the EPA Indian Policy'').
The EPA believes that it can implement the title V program in
Indian country without first finding that a State has failed to submit
a program or that a State's program is inadequate. As noted above, CAA
section 301(d)(4) authorizes EPA to implement the CAA throughout Indian
country and does not require a finding of failure to submit or
inadequacy. No provision in the CAA prohibits EPA from implementing the
CAA in Indian country absent a finding of failure to submit or
inadequacy. In fact, CAA section 502(d)(3) requires EPA, by November
15, 1995, to promulgate, administer and enforce a title V program where
``a program meeting the requirements of this subchapter has not been
approved in whole for any State.'' This provision is not conditioned
upon EPA making a failure to submit or inadequacy determination. While
EPA's final Tribal Authority Rule makes the November 15, 1995 deadline
inapplicable in the context of Tribal implementation of the CAA, EPA
remains under an obligation to implement title V in Indian country. See
63 FR at 7264-7265.
Furthermore, Congress could not have intended that EPA must make an
inadequacy or failure to submit determination before EPA could
implement the CAA in Indian country because States generally lack
authority over Indians in Indian country. California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987). In addition, such a determination
by EPA may result in the application of sanctions against States; it
would be nonsensical to punish States where they lack authority over
Indian country since States are powerless to remedy such a
``deficiency.''
In response to comments that some States may have authority over
non-Indian activities on reservation fee lands, EPA believes that in
the context of regulating air pollution, States generally will not have
jurisdiction over these lands. See 63 FR at 7256-7257; 53 FR 43080
(Oct. 25, 1988)(notice of denial of Washington department of Ecology
UIC Program for Indian lands). Furthermore, as discussed above, EPA
interprets the CAA as favoring unitary management of reservation air
resources and delegating Federal authority to eligible Tribes to
implement the CAA over all sources within reservations, including non-
Indian sources on fee lands. Accordingly, even if a State could
demonstrate authority over non-Indian sources on fee lands, EPA
believes that the CAA generally provides the Agency the discretion to
federally implement the CAA over all reservation sources in order to
ensure an efficient and effective transition to Tribal CAA programs and
to avoid the administratively undesirable checkerboarding of
reservations based on land ownership.
Federal implementation of the title V program does not conflict
with CAA sections 101 or 116. Neither of these provisions extends State
jurisdiction into Indian country where it does not already exist. See
Washington Department of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985).
The provision of section 101(a) cited by the commenter only expresses
the general view that air pollution regulation is the primary
responsibility of the States and localities. Congress has made it clear
that for reservations and for non-reservation areas over which Tribes
can demonstrate jurisdiction (generally including all non-reservation
areas of Indian country), Tribes are the entities with primary
responsibility to regulate air quality. See CAA section 301(d); S. Rep.
No. 228, 101st Cong., 1st Sess. 79 (1989). EPA's implementation of the
CAA where Tribes have yet to develop approvable programs is consistent
with section 101(a). Furthermore, the approach finalized today does not
conflict with section 116. Section 116 provides that the CAA does not
preclude or deny the right of any State to adopt or enforce any
standard or limitation respecting emissions of air pollutants or any
requirement respecting control or abatement of air pollution. Broadly
speaking, section 116 reserves to the States the right to set State
emission standards and limitations that are more stringent than and/or
in addition to Federal requirements. Section 116 does not preclude EPA
from implementing CAA programs. As discussed in detail in section III.B
below, this rule only addresses Federal implementation of the CAA. For
purposes of this rulemaking, EPA does not believe it is necessary to
resolve whether States are precluded from regulating air resources in
Indian country solely under color of State law or whether the
reservation of rights embodied in section 116 extends to Indian country
in some cases.
The EPA shares the concerns expressed by commenters about fair,
efficient, and effective implementation of the CAA. In finalizing this
rule, EPA sought to weigh and balance several objectives including:
avoiding gaps in title V coverage; minimizing jurisdictional disputes;
allowing for a smooth transition to Tribal programs; avoiding checker-
boarding of reservations; protecting Tribal sovereignty; minimizing
uncertainty, delay, and expense for the regulated community; and
maximizing efficient use of government expertise and resources. The EPA
believes the approach finalized today best ensures that the CAA is
implemented fairly, efficiently, and effectively in Indian country. See
Washington Department of Ecology, 752 F.2d 1465 (9th Cir. 1985).
The EPA disagrees with commenters who assert that there are policy
reasons that should compel EPA to allow States to implement the title V
program over Indian country lands, including non-Indian-owned fee lands
within Indian reservations. One of EPA's primary policy objectives is
to avoid gaps in title V coverage. This objective is not served by
allowing States that generally lack authority to regulate air sources
in Indian country, including non-Indian lands, to issue permits that
may not be enforceable under Federal law. In addition, EPA does not
believe the Agency has the authority to approve a State program in
Indian country unless the State can demonstrate that it has authority
over Indian country sources.
[[Page 8253]]
The EPA's approach also advances the important policies of
administrative clarity in the operation of the regulatory program,
effective and efficient environmental management, and support of Tribal
self-determination. Today's rule makes it clear that from the first day
of the program in Indian country, EPA would be the relevant permitting
authority for sources located in Indian country, until a part 70
program is explicitly approved for the area. Except in rare cases,
sources would be spared the delay and confusion caused by States
attempting to construct and support CAA jurisdictional demonstrations
over Indian country. Further, EPA has sufficient resources to implement
the program in Indian country. Today's rule also avoids checkerboarding
of regulatory authority within reservations. As stated above, EPA
believes that Congress intended that EPA take a territorial view of
implementing air programs within reservations. The EPA believes that
air quality planning for a checkerboarded area would be more difficult
and that it would be inefficient if a Tribe and a State were to
exercise piecemeal regulation over tracts of land within a reservation,
possibly with similar reservation sources being subject to different
substantive requirements. EPA's policy provides for coherent and
consistent environmental regulation within reservations.
Today's rule also supports and preserves Tribal sovereignty through
Federal implementation of the program until Tribes are delegated
authority pursuant to the Tribal Authority Rule to regulate all air
sources within their reservations. Consistent with EPA's Indian Policy,
EPA generally will implement the program in Indian country until Tribal
governments are willing and able to assume full responsibility for CAA
programs. See EPA Indian Policy, reaffirmed by Administrator Browner on
March 14, 1994.
Today's rulemaking will allow for a smooth transition to Tribal
implementation of title V programs. Apart from the question of whether
States could even demonstrate CAA jurisdiction in Indian country, if
EPA were to allow States to administer the program within reservations
until Tribal programs were approved, EPA would need to complete two
rounds of notice and comment rulemaking before taking a third round of
rulemaking to approve the Tribal program. The first would be to
explicitly approve State programs as covering reservations, and the
second would be to subsequently withdraw program approvals for the same
areas. This approach would be unwieldy as well as inconsistent with the
Agency's interpretation of the CAA. Further, EPA believes that there
would be less conflict between States and Tribes that administer title
V programs if there was not a period of State administration. The EPA,
nevertheless, strongly encourages Tribal and State cooperation in the
development of Tribal part 70 programs through sharing technical
expertise as well as information about sources and air quality issues.
With the Agency's increasing emphasis on regional solutions to air
quality issues, EPA supports Tribal and State efforts to jointly plan
air protection strategies. The EPA believes the most supportive
environment for collaborative efforts is one in which Tribes and States
are not adversaries on the issue of who has jurisdiction to administer
the title V program.
The EPA understands the strong desire expressed by industry
commenters to avoid having several regulating entities, e.g., EPA, a
State, and a Tribe, seeking to assert regulatory authority over them.
The EPA believes that Federal implementation of the title V program
throughout Indian country will help provide certainty and clarity to
regulated entities. While in some cases application of the Indian
country standard may involve a detailed, case-specific analysis, the
standard provides certainty. For example, Indian country clearly
includes all lands within Indian reservations, including fee lands. The
EPA believes that the vast majority of Indian country sources that are
subject to the part 71 program are located within reservations.
Therefore, it will be clear to most Indian country sources that they
are subject to the part 71 program. In addition, there is a well-
developed body of Federal case law on the Indian country standard,
including case law on the status of reservations, dependent Indian
communities, and allotments.
To provide additional certainty to regulated entities, EPA believes
it is helpful to clarify the extent to which State title V programs
have force in Indian country. The EPA makes clear today that the Agency
interprets past approvals of State title V programs as not extending to
Indian country unless that State has made an explicit demonstration of
jurisdiction over Indian country, and EPA has explicitly approved the
State's title V program for such area. This is consistent with
Congress' requirement that EPA approve State and Tribal programs only
where there is a demonstration of adequate authority. See CAA sections
502(b)(5)(A) and (E) and 40 CFR 70.4(b)(3).3 Since States
generally lack the authority to regulate air resources in Indian
country, EPA does not believe it would be appropriate for the Agency to
approve State CAA programs as covering Indian country where there has
not been an explicit demonstration of adequate jurisdiction and where
EPA has not explicitly indicated its intent to approve the State
program for an area of Indian country. Thus, to the extent States or
others may have interpreted past EPA approvals that were not based on
explicit demonstrations of adequate authority and did not explicitly
grant approval in Indian country, as approvals to operate part 70
programs in Indian country, EPA wishes to clarify any such
misunderstanding.4
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\3\ To obtain title V program approval, a State must demonstrate
that it has adequate authority to issue and enforce permits that
assure compliance by all sources required to have permits under
title V with each applicable requirement under the CAA. See CAA
sections 502(b)(5)(A) and (E); 40 CFR 70.4(b)(3). The program
submission must include a legal opinion from the Attorney General
from the State or the attorney for those State, local, or interstate
air pollution control agencies that have independent counsel,
stating that the laws of the State, locality, or interstate compact
provide adequate authority to carry out all aspects of the program.
This statement shall include citations to the specific statutes,
administrative regulations, and where appropriate, judicial
decisions that demonstrate adequate authority (40 CFR 70.4(b)(3)).
\4\ On May 15, 1998, the State of Colorado Department of Law,
Office of the Attorney General, submitted a document entitled
``Supplemental Attorney General Opinion--Title V Program'' to the
Regional Administrator of EPA Region VIII. This document requests
that EPA extend approval of Colorado's interim approved title V
program (60 FR 4563, January 24, 1995) to cover non-member-owned
sources located on fee lands within the exterior boundaries of the
Southern Ute Reservation. Colorado asserts that its request is
supported by Public Law 98-290. Colorado did not submit the request
as a comment on the proposed revisions to part 71 that are the
subject of today's rulemaking. The EPA will respond to Colorado's
request in a separate proceeding in accordance with the part 70
provisions governing EPA review of submitted programs. Today's
rulemaking does not constitute an EPA final action in response to
Colorado's request and does not prejudge EPA's consideration of
Colorado's request in any way.
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In State program approvals, EPA generally did not find that States
had demonstrated authority to regulate sources in Indian country
pursuant to part 70 programs. Although the language of program
approvals on this issue varied, approvals of State programs typically
excluded areas over which a Tribe has jurisdiction. Except where
expressly noted, at the time EPA issued part 70 approvals, EPA did not
find that the States whose programs were subject to the approvals had
made an adequate showing of authority pursuant to CAA sections
502(b)(5)(A) and (E) to justify approval of their programs in Indian
country.
[[Page 8254]]
In the 1997 proposal, EPA proposed to implement the program where
there is a ``dispute'' as to whether a particular area is Indian
country. However, EPA now believes the use of the term ``dispute'' may
be misleading and inappropriate. For purposes of this rule, there may
be, but need not be, a formal dispute, such as active litigation or
other form of public disagreement, for EPA to consider the Indian
country status of the area to be in question. Further, although it may
be helpful for States and Tribes to submit information to EPA relative
to their views, this information would not necessarily be dispositive
as to EPA's judgment about whether the Indian country status of the
area is in question. The EPA may be aware of questions regarding the
area's status based on information from other sources such as the
Department of the Interior (DOI) or other Federal agencies. Also, EPA
emphasizes that EPA will not consider there to be a question about the
status of areas that are clearly within the boundaries of an Indian
reservation.
The EPA's decision to implement the program in areas for which EPA
believes there is a question of whether the area is Indian country will
help achieve a number of important objectives. Federal implementation
in such areas will ensure no gap in title V coverage. If it is unclear
whether a Tribe or a State has authority over an area, EPA can ensure
that the title V program has legal effect by implementing the program
federally. See Underground Injection Control Programs for Certain
Indian Lands, Final Rule, 53 FR 43096, 43097 (Oct. 25, 1988) (observing
that where there is a dispute, both States and Tribes may disagree with
each other's assertions of jurisdiction, thereby raising doubts as to
whether either has enforcement authority over the area's sources).
The EPA notes that disputes and uncertainty could prevent both the
State and Tribe from effectively implementing the CAA title V program.
Where a State and Tribe assert jurisdiction over an area whose Indian
country status EPA believes is in question (and EPA has not resolved
the question and has not explicitly approved a part 70 program as
applying in the area), EPA would not view either the State or the Tribe
as having satisfied the CAA section 502(b)(5) requirements to have
adequate authority to issue permits that assure compliance with all CAA
applicable requirements, and enforce such permits, with respect to the
area. See 42 U.S.C. 7661a(b)(5)(A)-(E). Only when the State or Tribe
prevails on the Indian country question would EPA then be able to
conclude that the section 502(b)(5) requirements have been met for the
area. Until that time, the absence of an approved part 70 program in
the area necessitates implementation of part 71. By federally
implementing the title V program in areas for which EPA believes the
Indian country status is in question, EPA can help avoid jurisdictional
disputes that might hinder effective implementation of the CAA.
Furthermore, Federal implementation in such areas will help provide the
regulated community with certainty as to which entity (EPA, the State
or the Tribe) will implement the title V program.
In addition, as discussed in detail below, EPA is providing a
mechanism under this rule that will allow regulated entities to
formally seek a determination from EPA as to whether or not they are
covered by the part 71 program. This mechanism will help provide
certainty and minimize delay and expense for regulated entities.
Finally, EPA recognizes that, compared to States, the Agency has
different expertise, and generally expends fewer resources for direct
implementation of the CAA than for establishing national programs and
conducting oversight. However, EPA notes that it has substantial
experience with developing title V regulations and nationally-
applicable standards, issuing Prevention of Significant Deterioration
(PSD) and acid rain permits to sources in Indian country, providing
oversight of State title V and other CAA programs, and reviewing State-
issued title V permits. The EPA has the expertise and is committed to
ensuring that the CAA is fully implemented in Indian country. In the
preamble to the final Tribal Authority Rule, EPA outlines its strategy
for full implementation of the CAA in Indian country. A short summary
of the strategy is included in section III.B below.
The EPA notes that the approach finalized today is not intended to
preclude cooperative approaches between States and Tribes. To the
contrary, Tribes and States are permitted and encouraged to cooperate
in the implementation of the title V program, including by sharing
financial and technical resources and expertise.
B. Effect of State Law
Several commenters request that EPA clarify the effect of the part
71 program on permits issued under State law. In general, State and
industry commenters argue that the Federal operating permits program
should not alter either the authority of States to regulate non-Indian
sources operating on fee lands within reservations or the validity of
permits issued to sources in Indian country under State law. Several
commenters ask EPA to agree that a facility located in Indian country
operating under a permit issued by a State agency which purports to
limit the facility's potential to emit (PTE) to below the part 71
applicability emission thresholds is a ``synthetic minor'' source that
does not need to obtain a Federal operating permit.
As EPA stated in the 1997 proposal, EPA believes that CAA section
301(d)(2) clearly reflects Congress' decision to grant to eligible
Tribes the authority to administer programs over all air resources
within the exterior boundaries of a reservation and within areas
outside of the reservation that are within a Tribe's jurisdiction.
Until a Tribal program is approved, EPA believes that it should manage
air quality in those areas for the reasons discussed in section III.A
above. Consistent with this preference and the territorial approach
favored by Congress, it follows that under EPA's approach to
implementation of the CAA, State or local programs do not affect the
applicability of Federal Clean Air Act requirements to sources in
Indian country unless the programs are explicitly approved by EPA under
the CAA as applying within Indian country. Where such approval is
lacking, EPA will implement the CAA in Indian country except where a
Tribal program is approved. It is EPA's position that unless EPA has
explicitly approved the program as applying in Indian country, State or
local permits for sources in Indian country (and limitations in such
permits) are not effective for purposes of limiting PTE of sources such
that they are not covered by the part 71 program, or for any other
purpose under the CAA. The EPA is not taking a position in this
rulemaking on whether State laws regulating air resources have effect
in Indian country outside of the context of the CAA.
The EPA also notes that its decisions on whether States have
demonstrated authority in Indian country have already been made in
approvals of individual State part 70 programs. Where States have not
demonstrated authority in Indian country, EPA has limited the scope of
its approval of the State program accordingly. The fact that a source
has applied for or obtained a permit from a State or local program that
has not been explicitly recognized by EPA as extending into Indian
country but which purports to limit the PTE of the source does not
alter the requirement under part 71 that the source apply to EPA for a
Federal operating permit. The EPA expects all sources that meet the
applicability
[[Page 8255]]
criteria of part 71 to apply to the appropriate EPA Regional Office for
a Federal operating permit.
Sources located in Indian country are already subject to applicable
Federal CAA programs, such as the PSD program, New Source Performance
Standards (NSPS) and National Emissions Standards for Hazardous Air
Pollutants (NESHAP) issued under sections 111, 112, and 129 of the CAA,
the acid rain program under title IV of the CAA, and requirements of
title VI of the CAA. Nonetheless, EPA is aware that in the short term,
some of the estimated 100 part 71 sources in Indian country will not be
subject to substantive requirements that control their emissions. The
EPA has a number of efforts underway on dual tracks to remedy this
situation as part of the Agency's initiative to develop a comprehensive
strategy for implementing the CAA in Indian country. This approach
relies both on the development of Tribal air programs that will
establish substantive control requirements and on EPA's direct
implementation of new Federal requirements.
For the first track, EPA has been providing technical and financial
assistance to Tribal governments to build Tribal capacity to run EPA-
approved CAA permits programs and other CAA programs. For example, the
Agency is working with both the Shoshone-Bannock and the Navajo Tribes
to address pollution control of major sources on their reservations.
In terms of Federal implementation, EPA will establish priorities
for its direct Federal implementation activities by addressing as its
highest priority the most serious threats to public health and the
environment in Indian country that are not otherwise being adequately
addressed.
The EPA is in the process of developing a regulatory program for
preconstruction review of minor sources that will establish, where
appropriate, control requirements for sources that would be
incorporated into part 71 permits. EPA anticipates that the program
will offer sources located in Indian country the opportunity to accept
enforceable limits on their PTE, and possibly thereby avoid the
requirement to obtain a part 71 operating permit or a pre-construction
permit under the PSD program. The EPA is also working on nationally
applicable regulations for major source preconstruction permitting in
non-attainment areas that would apply to sources in Indian country.
To establish additional applicable, federally-enforceable emission
limits, the EPA Regional Offices will promulgate Federal implementation
plans that will establish Federal requirements for sources in specific
areas, where appropriate. The Regional Offices will carry out this
process in a prioritized manner without unreasonable delay, beginning
with facilities that pose the greatest threat to public health or the
environment and in instances where the Tribal government raises
important considerations.
Further, EPA plans to extend its January 25, 1995 transition policy
for PTE limits to sources located in Indian country where they maintain
emissions of less than 50 percent of all applicable major source
emissions thresholds. Under this policy, sources located in Indian
country that meet the criteria and record keeping requirements outlined
in the policy memorandum would not be considered major sources for
purposes of the part 71 program for an interim period until EPA or a
Tribe adopts and implements a mechanism that can be used to limit a
source's PTE. This policy will ensure that early implementation of the
part 71 program can focus attention on creating high-quality permits
and Federal implementation plans for higher-emitting part 71 major
sources.
C. Determining Whether Sources Are Subject to the Federal Program
The discussion below explains how EPA will decide in particular
cases whether sources are located in Indian country and communicate to
sources that they are expected to submit permit applications to their
appropriate EPA Regional Office. The approach adopted in today's rule
is essentially the one contained in the March 1997 proposal. In
addition, today's rule establishes procedures for sources to obtain
individual determinations from EPA as to whether they are subject to
the program. Like the permitting procedures themselves, however, these
procedures are not intended to provide a forum in which the Agency is
required to resolve all questions about whether an area is Indian
country. Moreover, a source owner or operator's decision to request
that the Agency make an applicability determination will not stay the
effectiveness of the part 71 program for the source.
1. The 1995 Proposal
Under the 1995 proposal, 90 days prior to the effective date of any
Federal part 71 program in a ``Tribal area,'' EPA would have notified
interested governmental entities of the proposed geographic scope of
the Federal program. Where the program would solely address sources
within a reservation, the notice would have specified the boundaries of
the reservation. But where the program would cover off-reservation
areas, the notice would have relied upon the Tribe's basis for
asserting jurisdiction. Governmental entities would have had 15 days in
which to submit written comments to EPA regarding any disagreement
concerning the boundaries of the reservation, with up to an additional
15 days to comment regarding disagreements about off-reservation areas
over which the Tribe had claimed jurisdiction. The EPA would then have
decided the scope of the Tribe's jurisdiction. Where disputes were not
resolved, EPA would have implemented part 71 in areas that were not
subject to competing jurisdictional claims. Final determinations of the
scope of Tribal jurisdiction would have been published in the Federal
Register at least 30 days prior to the effective date of the part 71
program in the ``Tribal area.'' See proposed 71.4(b)(1)(i)-(vi), 60 FR
20804, 20831-20832 (April 27, 1995). These provisions were not adopted
in the July 1996 final rule which announced that EPA would revisit in a
subsequent notice the issue of how EPA would make decisions regarding
whether sources are located in Indian country and are subject to the
program.
2. The 1997 Proposal
The 1997 proposal, in order to be more consistent with EPA's
general policy on implementing environmental programs in Indian
country, proposed that EPA would not conduct area-specific rulemaking
procedures to assess the boundaries of programs in Indian country.
(See, e.g., 40 CFR 144.3, 147.60(a) regarding EPA implementation of UIC
programs on ``Indian lands,'' defined equivalently to ``Indian
country.'') Instead, EPA's action to establish part 71 in Indian
country would occur through today's generally applicable national
rulemaking. Specific ``boundary'' questions relating to applicability
of the program to particular sources would be addressed through a less
formal consultation process involving, as appropriate, DOI, Tribes,
States and relevant stakeholders. Rather than requiring the Agency to
notify interested governmental entities of the proposed geographic
scope of programs, EPA would make case-specific determinations on
whether particular sources are in Indian country. Prior to the
effective date of the part 71 program, EPA would undertake similar
kinds of outreach efforts as those taken by States and local
governments under part 70 programs, notifying sources that
[[Page 8256]]
the Agency believed were subject to the program. In addition, under
section 71.4(g), EPA would publish an informational notice of the
effective date of the part 71 program for sources in Indian country.
Finally, EPA proposed that in cases of disagreement about whether an
area is Indian country, EPA would administer part 71 in the area
pending resolution of the area's Indian country status, and would, to
the extent possible, resolve such issues in the context of permitting
sources. See 62 FR 13748, 13750-13751 (March 21, 1997).
3. Comments on the 1997 Proposal
The EPA received numerous comments regarding the way the 1997
proposal addressed how EPA would determine whether sources are subject
to the Federal program. In general, State and local government
regulatory agencies and industry commenters favor requiring individual
notice and comment rulemaking procedures to establish the geographic
boundaries of each area where the Federal program applies, and prefer
the approach discussed in the 1995 proposal or procedures similar to
it. These commenters argue that the boundaries of Federal programs
should be set through case-by-case notice and comment procedures and
ascertained with geographical certainty before establishing programs,
in order to avoid imposing inappropriate costs and undermining clarity
and certainty for sources. Some argue that EPA's planned reliance on
Bureau of Indian Affairs (BIA) maps is misplaced due to the alleged
inaccuracy of this information. These commenters suggest that the
determination of geographic boundaries is a contested, fact-specific
inquiry that requires notification of appropriate governmental
entities, sources and the relevant public. They assert that the rule
should provide for delay of implementation until such questions are
resolved. Without this, the commenters argue, EPA would produce poor
jurisdictional decisions and frustrate title V's goals of clarity and
certainty for sources.
These commenters also believe that at the time EPA notifies sources
that they are subject to part 71, EPA should also notify relevant
States who may already be attempting to regulate these sources. They
assert that because of the perceived ambiguity concerning the scope of
Tribal or EPA authority under the CAA, many States may be implementing
title V in areas where EPA would consider them not to have
jurisdiction. This means that States need to be aware of jurisdictional
issues so that they can work with EPA and Tribes to resolve
jurisdictional questions without leaving the regulated sources caught
in uncertainty and having unintended fiscal impacts on States to which
sources have paid title V fees.
Several State and industry commenters believe that EPA should
return to the 1995 proposed rule's approach of requiring Tribes to
demonstrate jurisdiction before EPA would implement part 71 in off-
reservation areas. These commenters argue that the only clear
boundaries in Indian country are recognized reservation boundaries.
They also contend that if Tribes claim jurisdiction beyond the
reservation, they must provide the factual and legal basis for their
inherent authority over such resources with clarity and precision
before the Tribe, and hence EPA, can regulate them. One such commenter
argues that this approach is required by the language of CAA section
301(d)(2)(B). Another argues that the shift of jurisdictional proof to
States regarding non-reservation trust lands results in EPA presuming
jurisdiction where none may exist. Another commenter asserts that this
result, as opposed to the approach of the 1995 proposal, is
inappropriate in light of the long history of competing jurisdictional
claims concerning current and former Indian lands.
Some commenters believe that placing the burden on the source to
assess whether it is in Indian country is unfair, given the
uncertainties and the costs of applying for permits, and that it will
therefore be difficult for sources to determine whether they are
subject to the part 71 program or the corresponding State part 70
program. Other commenters argue that sources who mistakenly apply for
State part 70 permits, rather than Federal part 71 permits, should not
be subject to liability; furthermore, their part 70 permits should be
deemed valid part 71 permits until the time for permit renewal, at
least where EPA's initial determinations of geographic borders are
later found to be incorrect.
As discussed in Section III.A above, many State and industry
commenters contend that EPA should run part 71 in areas where the
Indian country status is in question only if the State has not
attempted to apply its part 70 program there. These commenters argue
that this would allow State part 70 programs to be used to resolve
jurisdictional questions in the permitting process, would avoid
situations where permitting responsibility shifts back to the State if
the State prevails in its jurisdictional claim, and would leave the
``status quo'' in place until a Tribe successfully demonstrates
jurisdiction in the area. Moreover, these commenters assert that the
regulation should specify the guidelines EPA will use to review and
settle questions regarding an area's Indian country status. Due to
EPA's trust responsibility toward Indian Tribes, these commenters
believe that EPA may not be able to act as an impartial judge in
resolving jurisdictional questions. The commenters argue that since EPA
has limited expertise in defining the scope of Indian country, the
method EPA develops should afford ample time for States and sources to
receive notice and present all necessary information before the Agency
makes a jurisdictional decision.
Finally, Tribal commenters generally support the 1997 proposal and
suggest that States and sources should not have difficulty in
discerning the boundaries of Indian reservations, which are delineated
on updated BIA maps. Tribes also suggest that EPA could use Tribes to
give notice to sources on reservations, and that this, in combination
with publication of a general notice of the effectiveness of part 71 in
Indian country pursuant to Sec. 71.4(g), would provide sufficient
notice to sources that they need to submit Federal permit applications
to EPA.
4. EPA's Responses and Description of Final Rule
In most cases, determining whether sources are located within
Indian country will be straightforward and non-controversial. That is,
in the majority of cases EPA and sources will be able to easily
determine whether a source is located within the exterior boundaries of
a reservation or on land that a court or DOI has said is Indian country
(which could include dependent Indian communities). These assessments
can be verified through consultation with DOI and will be informed by
data and materials received from States, surveys, DOI and Tribes. In
the rarer, more complex factual cases such as those involving pending
diminishment issues and dependent Indian community issues, EPA in
appropriate cases will work with DOI, Tribes and stakeholders (e.g.,
States, local governments, sources, and environmental organizations) to
assess whether sources are located in Indian country or areas for which
EPA believes the Indian country status is in question. After EPA has
reviewed the relevant materials, the Agency will send letters to
sources that EPA believes are located in such areas or in Indian
country, indicating that they are expected to
[[Page 8257]]
submit a Federal title V permit application within one year of the
program's effective date (or some earlier time as established by the
EPA Regional Office). Copies of these notices will be sent to
interested State, local and Tribal governments. However, if EPA fails
to notify some sources that are subject to the program, note that it is
the source's responsibility to ascertain whether it is subject to part
71 and submit any required permit application. The addition in today's
rule of provisions allowing sources to request that EPA answer
applicability questions is designed to make it easier for sources to
meet this responsibility and essentially can be used to partly shift
the burden of accurately determining program applicability from the
source to EPA.
As a result of today's national rulemaking establishing the part 71
program throughout Indian country, and in light of the process
discussed above, EPA has decided that it would be administratively
unnecessary and infeasible to conduct additional iterative notice and
comment rulemakings for each case in which EPA is discerning whether
particular sources or areas fall within the geographic boundaries of
Indian country. Under other Federal environmental programs, the Agency
has taken the same basic approach as is being adopted today and has not
made individual determinations of the boundaries of Indian country
through case-specific rulemaking actions, beyond generally identifying
the area of Indian country in which the Federal program was being
established. See, e.g., Underground Injection Programs for Certain
Indian Lands, Final Rule, 53 FR 43096 (Oct. 25, 1988).
Since EPA takes the position that State and local part 70 programs
do not, for CAA purposes, extend into Indian country unless the Agency
has explicitly approved the programs as extending into Indian country,
EPA does not generally expect that sources located in Indian country
will be confused about whether they are covered by a State part 70 or
EPA part 71 Clean Air Act program. This is especially true for sources
located in Indian country that are already covered by EPA-administered
PSD plans under title I or acid rain programs under title IV of the
CAA. States should be fully aware of whether EPA has explicitly
approved their part 70 programs as applying in Indian country.
In addition, EPA is adding certain provisions to today's final rule
that will make it easier for sources to learn whether they are subject
to the Federal program, and that may reduce the expense of the program
for some sources that have paid permit fees to a State agency. Finally,
in response to the comments, EPA will notify relevant State, local, and
Tribal governments at the same time the Agency notifies individual
sources that they are subject to the Federal program.
The EPA does not agree with State and industry commenters that the
1995 proposal took the correct approach of requiring Tribes to
demonstrate jurisdiction in off-reservation areas before EPA's Federal
jurisdiction would attach. First, as discussed in section III.A above,
EPA's authority to administer the part 71 program is based on EPA's
broad authority to protect air quality within Indian country, and does
not depend on a jurisdictional showing by a Tribe. In addition, if EPA
were to administer a part 71 program only where Tribes come to EPA to
demonstrate jurisdiction, there would be some non-reservation areas of
Indian country that lack a permitting authority with jurisdiction to
implement a title V program. The EPA's view is that no State CAA
programs apply in Indian country unless explicitly approved as such,
and that a State attempt to regulate under color of the CAA in non-
reservation Indian country during this temporal ``gap'' would result in
State-issued permits that could not be enforced under the CAA. Only by
EPA assuming responsibility to issue permits in these situations can
the gap be filled and national title V coverage be achieved. Finally,
EPA believes it would be an unnecessary burden on Tribes to require
that they submit jurisdictional demonstrations over off-reservation
areas in order to establish EPA's Federal jurisdiction, which can be
more easily established through today's rule.
The EPA appreciates that some sources, especially those located in
areas over which States have attempted to exert regulatory authority,
may feel burdened by the duty to correctly identify whether they are
subject to the Federal program. However, as discussed in section III.A
above, EPA believes that the most appropriate approach to take in order
to ensure nationwide coverage of title V is to apply the part 71
program in all areas except where a State or Tribal program has been
explicitly approved.
In response to industry comments and in order to minimize
uncertainty and burden for sources, EPA is adding in today's final rule
regulatory provisions that will allow sources that are uncertain
regarding program applicability to submit requests to the Agency for
applicability determinations. This process would be similar to those
that exist under other CAA programs, such as NSPS and NESHAP programs
under sections 111 and 112, and the acid rain program under title IV.
See, e.g., 40 CFR 60.5, 61.06, 72.6(c). Under today's rule, any source
operator or owner who is uncertain regarding coverage of part 71 for
any reason (including, for example, uncertainty regarding whether the
source is a major source) could request in writing prior to the
issuance of a part 71 permit that EPA make an applicability
determination. The request must include an identification of the source
and relevant and appropriate facts about the source and must be
certified in accordance with section 71.5(d). Sources should include
all information that they wish to be part of the record for EPA's
applicability determination. This could include information provided by
State, local, and Tribal governments.
With respect to issues concerning whether a source is in Indian
country or an area for which EPA believes the Indian country status is
in question, EPA would evaluate the source's request, along with other
relevant information that EPA has assembled for the applicability
determination record. For example, EPA may consider treaties, maps, and
information submitted by State, local, and Tribal governments. Upon
request, EPA would make the record available to Tribes, States, and
relevant stakeholders prior to making the applicability determination.
The EPA would issue a written determination stating either that the
source is subject to the part 71 program as of the program's effective
date because it is located in Indian country or an area for which EPA
believes the Indian country status is in question, or that the source
is not located in an area covered by the part 71 program, and thus may
be subject to the State or local program. The EPA believes that this
process is consistent with the title V goals of providing clarity and
certainty for sources and represents a practical method for addressing
uncertainties regarding boundaries of Indian country. It also affords
opportunities for sources and other stakeholders to get their views and
information before the Agency.
The EPA stresses that any sources that are uncertain regarding part
71 program applicability should submit timely permit applications since
submission of a request for an applicability determination will not
stay the effectiveness of part 71 with respect to the source. In order
to obtain the ``application shield'' under CAA section 503(d) that
allows a source to continue to operate after the effective date of the
Federal title V program, timely
[[Page 8258]]
submission of a Federal permit application is required.
Moreover, as discussed in detail elsewhere in today's notice, EPA
is taking another measure in response to industry comments to minimize
the burden on sources located in areas for which EPA believes the
Indian country status is in question. For those sources, EPA may reduce
the Federal title V permitting fee where the sources have paid fees to
State permitting authorities that have asserted CAA regulatory
authority over them. This approach will ensure that sources in such
areas will be issued federally enforceable title V permits, without
financially overburdening sources that have yielded to State attempts
to assert jurisdiction under color of a part 70 program.
IV. Changes From the Proposed Rules and the 1996 Final Rule
Today's final rule is similar to the 1997 proposal in most
respects. Instances in which the final rule departs from the 1995 and
the 1997 proposals and the 1996 final rule are noted below.
A. Geographic Area Subject to the Part 71 Program
The EPA today adds a definition of the term ``Indian country'' as
it is defined in 18 U.S.C. Sec. 1151. The EPA notes that although the
definition of Indian country appears in a criminal code, it has been
extended to civil judicial and regulatory jurisdiction (DeCoteau v.
District County Court, 420 U.S. 425, 427 n. 2 (1975). See also 40 CFR
144.3).
In addition, EPA is not adopting the proposed definition of the
term ``Tribal area'' (from the 1995 proposal) because the term is not
relevant to the approach taken in today's rulemaking for defining the
geographical area for which EPA will administer a part 71 program.
Accordingly, EPA revised several regulatory provisions that included
the undefined term ``Tribal area,'' including the definition of
``Affected State'' in Sec. 71.2, Sec. 71.4(a), Sec. 71.4(b),
Sec. 71.4(b)(2)-(3), Sec. 71.4(f), Sec. 71.4(h)-(j), Sec. 71.8(a), and
Sec. 71.8(d), and replaced that term with language to reflect the
program's applicability in Indian country.
Also, with respect to section 71.8(d) and the definition of
``Affected State,'' EPA is adopting language consistent with CAA
section 505(a)(2) and the 1996 final rule in lieu of the language in
the 1997 proposal that misstated the criteria for States and Tribes to
receive notices. The permitting authority will be required to provide
notices of draft permits to Tribes pursuant to Sec. 71.8(d) and to
affected States if (1) their air quality may be affected by the
permitting action and they are contiguous to the jurisdiction in which
the part 71 permit is proposed or (2) they are located within 50 miles
of the permitted source.
In addition, EPA has added language to section 71.4(b) that
clarifies that for purposes of administering the part 71 program, EPA
will treat areas for which EPA believes the Indian country status is in
question as Indian country.
Proposed Sec. 71.4(b)(1) from the 1995 proposal that referred to
Tribal assertion of jurisdiction is not adopted since a Tribe's
assertion of jurisdiction is not a relevant consideration under today's
rulemaking. Instead, pursuant to Sec. 71.4(b), EPA will administer the
part 71 program within Indian country even where the Tribe has not
demonstrated to EPA its jurisdiction over the area.
Also, as discussed in section III.C of today's notice, provisions
from the 1995 proposal that would have required EPA to notify State,
local, and Tribal governmental entities of the proposed geographic
boundaries of the program are inappropriate and have not been adopted.
Consistent with the Agency's policy with respect to administering
environmental programs in Indian country, EPA will not solicit comment
on the boundaries of the program through subsequent rounds of
rulemaking. See, e.g., 40 CFR 144.3, 147.60(a) (EPA administers
Underground Injection Control program on ``Indian lands,'' defined
equivalent to ``Indian country''). Rather, EPA will determine whether
specific sources are within Indian country or areas for which EPA
believes the Indian country status is in question and are therefore
subject to the part 71 program. The EPA will provide notices to sources
informing them of the deadline to submit part 71 permit applications
and will send copies of the notices to State, local and Tribal
governments.
B. Applicability Determinations
As discussed in section III.C of today's notice, in response to
industry concerns that it may be difficult to determine whether a
source is located in Indian country, the final rule adopts a provision,
Sec. 71.3(e), that provides that a source may formally request that EPA
determine whether or not the source is subject to the part 71 program.
C. Permit Fee Relief
Today's rule adds a section that authorizes EPA to reduce part 71
fees for sources that are located in areas for which EPA believes the
Indian country status is in question and that have paid part 70 fees to
a State or local permitting authority that has attempted to apply its
part 70 program in the area. A commenter expressed concern about the
fiscal impact on State part 70 programs that may result when sources
that have paid fees to the State become subject to the part 71 program.
In cases where it is not certain that a source is located in Indian
country, the State may be reluctant to discontinue regulating and
charging fees to the source. Industry commenters also generally stated
that where there is disagreement regarding whether a source is subject
to Federal jurisdiction, it would be burdensome for the source to
comply with the requirements of two permit programs.
The EPA's primary goal in regulating sources in areas for which EPA
believes the Indian country status is in question is to make sure that
all title V sources are covered by permits enforceable under the CAA.
The EPA believes that issuing part 71 permits to sources in such areas
is the only way to assure that all title V sources are subject to
enforceable permit terms, given that State permit regulations are
generally unenforceable in Indian country under the CAA. However, EPA
agrees with the commenters that sources should be afforded some relief
from the financial hardship that may result while the Indian country
status of the area is unclear, particularly since relieving sources of
some of this burden would have no adverse environmental impact provided
the source is paying an adequate aggregate title V fee. Where the
Indian country status, in EPA's judgement, is in question, EPA may
reduce the part 71 permit fee under Sec. 71.9(p), upon application of
the source. In implementing this section, EPA may reduce the fee the
source would have owed under Sec. 71.9(c) by the amount of permit fees
paid to a State or local agency. The fee reduction will cease if the
area is later determined to be Indian country.
D. Duty to Administer the Part 71 Program
Today EPA is adopting language in Sec. 71.4(b) to clarify that EPA
will (instead of ``may'') administer the part 71 program in Indian
country unless a part 70 program has been given full or interim
approval. The 1995 proposal and the final rule had used the phrase
``may administer.'' As explained in the 1997 proposal, EPA had intended
this language to authorize early implementation of the part 71 program
(in advance of the November 15, 1997 default effective date for the
program) and did not mean to imply that the regulation would allow EPA
to choose to not administer the program in Indian country.
[[Page 8259]]
E. Publication of Notice of Final Permitting Actions
Today's rulemaking includes a technical amendment to Sec. 71.11
that adds a provision (Sec. 71.11(l)(7)) requiring EPA to publish
notice of any final permitting action regarding a part 71 permit in the
Federal Register. This amendment is to make the rule more consistent
with the 40 CFR part 124 requirements that apply to EPA issuance of PSD
permits and to implement the provisions of CAA section 307(b)(1). The
time period in which petitioners can file petitions for review of final
permits in the Court of Appeals will run for 60 days from the date of
publication of the notice of final permit action.
This amendment is being made without first being proposed because
it is technical in nature and imposes no new requirements on sources
and because it is in the public interest to adopt this correction to
part 71 more quickly than could be achieved by using notice and comment
procedures, which in this case are impracticable, unnecessary, and
contrary to the public interest.
F. Technical Amendment to Sec. 71.4(f)
The EPA intended that this provision would allow EPA the
flexibility to meld portions of a State or Tribal permit program with
provisions of part 71 to create a part 71 program that fits the needs
of the area for which it is being administered, regardless of whether
the State or Tribal program had gained EPA approval. However, the
provision as finalized in the 1996 final rule could be read to not
allow this result. Strictly read, it allows EPA to use portions of a
``State or Tribal program'' (defined in Sec. 71.2 to mean EPA-approved
programs) in combination with provisions of part 71 to administer a
Federal program. To achieve its intended result, EPA is revising the
regulatory language to refer to a ``State or Tribal permit program.''
By avoiding the defined term ``State or Tribal program,'' the provision
as amended by today's rulemaking authorizes EPA to develop a part 71
program by combining either an approved or unapproved permit program
with provisions of part 71.
This amendment is being made without first being proposed because
it is technical in nature and imposes no new requirements on sources
and because it is in the public interest to adopt this correction to
part 71 more quickly than could be achieved by using notice and comment
procedures, which in this case are impracticable, unnecessary, and
contrary to the public interest.
G. Effective Date of Program
Because today's rulemaking was not finalized prior to November 15,
1997 as EPA had intended, Sec. 71.4(b)(2) is amended to provide that
the effective date of a part 71 program in Indian country is 30 days
following the publication of today's rulemaking. For similar reasons,
language in Sec. 71.4(b)(3) which allowed EPA to adopt an earlier
effective date for the program than November 15, 1997 has been deleted.
Section 71.4(b)(4) has been renumbered as Sec. 71.4(b)(3).
This amendment is being made without first being proposed because
it is technical in nature and imposes no new requirements on sources
and because it is in the public interest to adopt this correction to
part 71 more quickly than could be achieved by using notice and comment
procedures, which in this case are impracticable, unnecessary, and
contrary to the public interest.
V. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-51. The docket is an
organized and complete file of all the information submitted to or
otherwise considered by EPA in the development of this rulemaking.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan program or the rights and obligation of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant'' regulatory action
because it does not raise any of the issues associated with
``significant'' regulatory actions. The rule will have a negligible
effect on the economy and will not create any inconsistencies with
other actions by other agencies, alter any budgetary impacts, or raise
any novel legal or policy issues. For these reasons, this action was
not submitted to OMB for review.
C. Regulatory Flexibility
The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities. In developing the original part 70
regulations and the proposed revisions to part 70, the Agency
determined that they would not have a significant economic impact on a
substantial number of small entities. See 57 FR 32250, 32294 (July 21,
1992), and 60 FR 45530, 45563 (August 31, 1995). Similarly, the same
conclusion was reached in an initial regulatory flexibility analysis
performed in support of the 1996 part 71 rulemaking. See 61 FR 34202,
34227 (July 1, 1996). A small subset of sources subject to the part 71
rule are affected by today's rulemaking.
The prior screening analyses for the part 70 and part 71 rules were
done on a nationwide basis without regard to whether sources were
located within Indian country and are, therefore, applicable to sources
in Indian country. Accordingly, EPA believes that the screening
analyses are valid for purposes of today's final rule. And since the
screening analyses for the prior rules found that the part 70 and 71
rules as a whole would not have a significant impact on a substantial
number of small entities, today's rule, which will affect a much
smaller number of entities than affected by the earlier rules, also
will not have a significant impact on a substantial number of small
entities. The reasons for this conclusion are discussed in more detail
below.
At this time, there are very few nonmajor sources that are required
by part 71 to obtain an operating permit. The Agency has also issued
several policy memoranda explaining or providing mechanisms for sources
to become ``synthetic minors'' whereby the source is recognized for not
emitting pollutants in major quantities. The EPA plans to extend its
January 25, 1995
[[Page 8260]]
transition policy for PTE limits to sources located in Indian country
where they maintain emissions of less than 50 percent of all applicable
major source emissions thresholds. The sources covered by the policy
thereby avoid the requirement to obtain a part 71 permit.
Because of the deferral of permitting requirements for nearly all
nonmajor sources, today's rulemaking would affect only a small number
of sources. Although firm figures on the number of title V sources in
Indian country are not available, preliminary estimates suggest that
there may be only approximately 100 major sources and 450 nonmajor
sources (with permitting requirements deferred for nearly all nonmajor
sources).
The EPA believes that four Tribal governments may own sources that
could be subject to today's rule and that consequently the rule would
at most affect four of the more than 500 federally recognized Tribal
governments or fewer than 1 percent of those governments. The EPA
estimates that the compliance cost for sources subject to this rule is
$18,425 per source or $73,700 for the four sources owned by Tribal
governments.
Consequently, I hereby certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0336. A copy of the Information
Collection Request Document may be obtained from Sandy Farmer, OPPE
Regulatory Information Division (2137), U.S. Environmental Protection
Agency, 401 M Street, S.W., DC 20460 or by calling (202) 260-2740. The
information requirements are not effective until OMB approves them.
The information is planned to be collected to enable EPA to carry
out its obligations under the Act to determine which sources in Indian
country are subject to the Federal Operating Permits Program and what
requirements should be included in permits for sources subject to the
program. Responses to the collection of information will be mandatory
under section 71.5(a) which requires owners or operators of sources
subject to the program to submit a timely and complete permit
application, and under sections 71.6(a) and (c) which require that
permits include requirements related to record keeping and reporting.
As provided in 42 U.S.C. 7661(e), sources may assert a business
confidentiality claim for the information collected under CAA section
114(c).
Today's rulemaking will impose information collection request
requirements on approximately 100 sources in Indian country. The EPA
believes that four of these sources may be owned or operated by Tribal
governments. On a per source basis, the burden will be identical to the
burden for sources currently subject to part 71 requirements. In the
Information Collection Request (ICR) document for the July 1996 final
part 71 rule (ICR Number 1713.02), EPA estimates that the annual burden
per source is 329 hours, and the annual burden to the Federal
government is 243 hours per source. Therefore, the impact of today's
rulemaking will be that sources will incur an additional 32,900 burden
hours per year, and EPA will incur an additional 24,300 burden hours
per year. The total annualized cost will be $18,425 per source or
$1,842,500. Of this amount, the total annualized cost for Tribal
governments would be $73,700.
Today's rule imposes no burden on State or local governments and no
burden on Tribal agencies, except those that happen to own or operate
sources subject to this rule as noted above. Burden means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information;
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information. An Agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. The OMB
control numbers for EPA's regulations are listed in 40 CFR part 9 and
48 CFR Chapter 15.
E. Unfunded Mandates Reform Act
Today's action imposes no costs on State or local governments and
no costs on Tribal governments, except those that happen to own or
operate sources that are subject to this rule, as noted below. This
rule establishes the Agency's approach to issuing permits to sources in
Indian country and eliminates the proposed requirement that Indian
Tribes establish their jurisdiction prior to EPA administering the
Federal operating permits program in Indian country.
The EPA has estimated in the ICR document that the Federal
operating permits program rule promulgated in July 1996 would cost the
private sector $37.9 million per year. See 61 FR 34202, 34228 (July 1,
1996). In the ICR, EPA estimates costs based on sources that would be
subject to part 71 permitting requirements in eight States but
overestimates the number of these sources for purposes of simplifying
the analysis. See 61 FR 34202, 34227 (July 1, 1996). The overestimate
of the number of sources is nearly as large as the number of new
sources covered by today's rule. Consequently, EPA believes today's
rule would increase the direct cost of the part 71 rule for industry to
$38.3 million. This estimate is based on the average cost of compliance
per source and the number of sources in Indian country that were not
accounted for in the original estimate.
The EPA believes that four Tribal governments may own or operate
sources that could be subject to today's rule. The EPA estimates the
compliance cost for these governments would be $18,425 per source or
$73,700 for the four sources owned by Tribal governments.
The EPA has determined that today's action 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 1 year. Therefore, the Agency concludes that it
is not required by section 202 of the Unfunded Mandates Reform Act of
1995 to provide a written statement to accompany this regulatory
action.
F. Submission to Congress and the General Accounting Office
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. The 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
[[Page 8261]]
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
G. Executive Order 13045
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1977) 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 E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866 and because it
does not involve decisions based on environmental health risks or
safety risks.
H. Executive Order 12875: Enhancing Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or Tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and Tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and Tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
The EPA has concluded that this rule will create a mandate on
tribal governments that happen to own or operate sources that are
covered by the rule and that the Federal government will not provide
the funds necessary to pay the direct costs incurred by such Tribal
governments in complying with the mandate. The EPA believes that there
are just four sources owned by Tribal governments that will be subject
to this rule and that must submit permit applications and obtain part
71 permits. In developing this rule, EPA consulted with Tribal
governments to enable them to provide meaningful and timely input in
the development of this rule. Prior to the publication of the 1995
proposal, EPA shared a summary of the draft proposal and solicited
input from attendees at a national Tribal environmental conference, as
well as from approximately 300 Tribal leaders. The EPA mailed the 1995
and 1997 proposals and fact sheets to Tribal leaders, encouraging
Tribal comment on the proposals. In addition, EPA discussed the
proposed rulemaking and sought input from EPA's Tribal Operations
Committee, composed of Tribal leaders as well as EPA managers.
Tribes were generally very supportive of the rule and EPA's
interpretation of the CAA on the issues of Federal authority and Tribal
authority to regulate air quality in Indian country. The issues raised
by Tribal commenters did not relate to the mandate imposed by this rule
on Tribal governments that own or operate sources subject to the rule.
The major concerns expressed by Tribes related to the need for
technical assistance to develop their own permit programs and the need
to receive notice of permitting actions that affect Tribal air quality.
Tribes requested that EPA work directly with Indian tribal governments
in a government-to-government relationship in establishing the scope of
and administering the program. Other concerns were related to the
effect of the rule on Tribal sovereignty and economic development.
The EPA continues to provide technical assistance and training for
Tribes to develop their own programs and is committed to involving
Tribes in the administration of the Federal program on a government-to-
government basis until Tribes have developed their own operating permit
programs. The EPA believes that the rule's approach to jurisdictional
issues is supportive of Tribal sovereignty and that the rule is
necessary in order to protect air quality in Indian country, absent
Tribal permits programs.
I. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
The EPA believes that four Tribal governments may own sources that
could be subject to today's rule and that consequently the rule would
at most affect four of the more than 500 federally recognized Tribal
governments or fewer than 1 percent of those governments. The EPA
estimates that the compliance cost for sources subject to this rule is
$18,425 per source or $73,700 for the four sources owned by Tribal
governments. The EPA therefore concludes that this rule does not impose
substantial direct compliance costs on communities of Tribal
governments. Notwithstanding, EPA has taken numerous steps to involve
representatives of Tribal governments in the development of this rule.
The EPA's consultation, the nature of the governments' concerns, and
EPA's position supporting the need for this rule are discussed above in
the preamble section that addresses compliance with Executive Order
12875.
J. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA) directs all Federal agencies to use voluntary
consensus standards instead of government-unique standards in their
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling and analytical procedures, business practices, etc.) that are
developed or adopted by one or more voluntary consensus standards
bodies. Examples of organizations generally regarded as voluntary
consensus standards bodies include the American
[[Page 8262]]
Society for Testing and Materials (ASTM), the National Fire Protection
Association (NFPA), and the Society of Automotive Engineers (SAE). The
NTTAA requires Federal agencies like EPA to provide Congress, through
OMB, with explanations when an agency decides not to use available and
applicable voluntary consensus standards.
This action does not involve any new technical standards or the
incorporation by reference of existing technical standards. Therefore,
consideration of voluntary consensus standards is not relevant to this
action.
List of Subjects in 40 CFR Part 71
Environmental protection, Air pollution, Indian Tribes, Operating
permits.
Dated: February 8, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
2. Section 71.2 is amended by revising paragraphs (1) and (2) of
the definition of ``Affected States'' and by adding the definition of
``Indian country'' in alphabetical order to read as follows:
Sec. 71.2 Definitions.
* * * * *
Affected States are:
(1) All States and areas within Indian country subject to a part 70
or part 71 program whose air quality may be affected and that are
contiguous to the State or the area within Indian country in which the
permit, permit modification, or permit renewal is being proposed; or
that are within 50 miles of the permitted source. A Tribe shall be
treated in the same manner as a State under this paragraph (1) only if
EPA has determined that the Tribe is an eligible Tribe.
(2) The State or area within Indian country subject to a part 70 or
part 71 program in which a part 71 permit, permit modification, or
permit renewal is being proposed. A Tribe shall be treated in the same
manner as a State under this paragraph (2) only if EPA has determined
that the Tribe is an eligible Tribe.
* * * * *
Indian country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
* * * * *
3. Section 71.3 is amended by adding paragraph (e) to read as
follows:
Sec. 71.3 Sources subject to permitting requirements.
* * * * *
(e) An owner or operator of a source may submit to the
Administrator a written request for a determination of applicability
under this section.
(1) Request content. The request shall be in writing and include
identification of the source and relevant and appropriate facts about
the source. The request shall meet the requirements of Sec. 71.5(d).
(2) Timing. The request shall be submitted to the Administrator
prior to the issuance (including renewal) of a permit under this part
as a final agency action.
(3) Submission. All submittals under this section shall be made by
the responsible official to the Regional Administrator for the Region
in which the source is located.
(4) Response. The Administrator will issue a written response based
upon the factual submittal meeting the requirements of paragraph (e)(1)
of this section.
4. Section 71.4 is amended by revising paragraphs (a) introductory
text, (b), (f), (h), (i) introductory text, and the first sentence of
(j), to read as follows:
Sec. 71.4 Program implementation.
(a) Part 71 programs for States. The Administrator will administer
and enforce a full or partial operating permits program for a State
(excluding Indian country) in the following situations:
* * * * *
(b) Part 71 programs for Indian country. The Administrator will
administer and enforce an operating permits program in Indian country,
as defined in Sec. 71.2, when an operating permits program which meets
the requirements of part 70 of this chapter has not been explicitly
granted full or interim approval by the Administrator for Indian
country. For purposes of administering the part 71 program, EPA will
treat areas for which EPA believes the Indian country status is in
question as Indian country.
(1) [Reserved]
(2) The effective date of a part 71 program in Indian country shall
be March 22, 1999.
(3) Notwithstanding paragraph (i)(2) of this section, within 2
years of the effective date of the part 71 program in Indian country,
the Administrator shall take final action on permit applications from
part 71 sources that are submitted within the first full year after the
effective date of the part 71 program.
* * * * *
(f) Use of selected provisions of this part. The Administrator may
utilize any or all of the provisions of this part to administer the
permitting process for individual sources or take action on individual
permits, or may adopt, through rulemaking, portions of a State or
Tribal permit program in combination with provisions of this part to
administer a Federal program for the State or in Indian country in
substitution of or addition to the Federal program otherwise required
by this part.
* * * * *
(h) Effect of limited deficiency in the State or Tribal program.
The Administrator may administer and enforce a part 71 program in a
State or within Indian country even if only limited deficiencies exist
either in the initial program submittal for a State or eligible Tribe
under part 70 of this chapter or in an existing State or Tribal program
that has been approved under part 70 of this chapter.
(i) Transition plan for initial permits issuance. If a full or
partial part 71 program becomes effective in a State or within Indian
country prior to the issuance of part 70 permits to all part 70 sources
under an existing program that has been approved under part 70 of this
chapter, the Administrator shall take final action on initial permit
applications for all part 71 sources in accordance with the following
transition plan.
* * * * *
(j) Delegation of part 71 program. The Administrator may promulgate
a part 71 program in a State or Indian country and delegate part of the
responsibility for administering the part 71 program to the State or
eligible Tribe in accordance with the provisions of Sec. 71.10;
however, delegation of a part of a part 71 program will not constitute
any type of approval
[[Page 8263]]
of a State or Tribal operating permits program under part 70 of this
chapter. * * *
* * * * *
5. Section 71.8 is amended by revising of paragraph (a) and
revising paragraph (d) to read as follows:
Sec. 71.8 Affected State review.
(a) Notice of draft permits. When a part 71 operating permits
program becomes effective in a State or within Indian country, the
permitting authority shall provide notice of each draft permit to any
affected State, as defined in Sec. 71.2 on or before the time that the
permitting authority provides this notice to the public pursuant to
Sec. 71.7 or Sec. 71.11(d) except to the extent Sec. 71.7(e)(1) or (2)
requires the timing of the notice to be different.
* * * * *
(d) Notice provided to Indian Tribes. The permitting authority
shall provide notice of each draft permit to any federally recognized
Indian Tribe:
(1) Whose air quality may be affected by the permitting action and
is in an area contiguous to the jurisdiction in which the part 71
permit is proposed; or
(2) Is within 50 miles of the permitted source.
* * * * *
6. Section 71.9 is amended by adding paragraph (p) to read as
follows:
Sec. 71.9 Permit fees.
* * * * *
(p) The permitting authority may reduce any fee required under
paragraph (c) of this section for sources that are located in areas for
which EPA believes the Indian country status is in question and that
have paid permit fees to a State or local permitting authority that has
asserted CAA regulatory authority over such areas under color of an
EPA-approved part 70 program. Upon application by the source, the part
71 fee may be reduced up to an amount that equals the difference
between the fee required under paragraph (c) and the fee paid to a
State or local permitting authority. The fee reduction will cease if
the area in which the source is located is later determined to be
Indian country.
7. Section 71.11 is amended by adding paragraph (l)(7) to read as
follows:
Sec. 71.11 Administrative record, public participation, and
administrative review.
* * * * *
(l) * * *
(7) Notice of any final agency action regarding a Federal operating
permit shall promptly be published in the Federal Register.
* * * * * *
[FR Doc. 99-3659 Filed 2-18-99; 8:45 am]
BILLING CODE 6560-50-U