[Federal Register Volume 84, Number 138 (Thursday, July 18, 2019)]
[Rules and Regulations]
[Pages 34306-34313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15221]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 49 and 52
[EPA-R10-OAR-2017-0347; FRL-9996-67-Region 10]
Indian Country: Air Quality Planning and Management; Federal
Implementation Plan for the Kalispel Indian Community of the Kalispel
Reservation, Washington; Redesignation to a PSD Class I Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this final rule, the Environmental Protection Agency (EPA)
is approving the May 11, 2017 proposal by the Kalispel Indian Community
of the Kalispel Reservation (herein referred to as the Kalispel Tribe
of Indians or Kalispel Tribe) to redesignate lands within the exterior
boundaries of the Kalispel Indian Reservation located in the State of
Washington to Class I under the Clean Air Act (Act or CAA) program for
the prevention of significant deterioration (PSD) of air quality.
Redesignation to Class I will result in lowering the allowable
increases in ambient concentrations of particulate matter (PM), sulfur
dioxide (SO2), and nitrogen oxides (NOX) on the
Kalispel Indian Reservation. Concurrently, the EPA is codifying the
redesignation through a revision to the Federal Implementation Plan
(FIP) currently in place for the Kalispel Indian Reservation. This FIP
will be implemented by the EPA unless or until it is replaced by a
Tribal Implementation Plan (TIP).
DATES: This final rule is effective on August 19, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R10-OAR-2017-0347. All documents in the docket are listed on
the https://www.regulations.gov website.
FOR FURTHER INFORMATION CONTACT: Sandra Brozusky at (206) 553-5317, or
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.
Table of Contents
I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
V. Statutory Authority
I. Background
Title 1, part C of the CAA contains the PSD program. The intent of
this part is to prevent deterioration of existing air quality in areas
having relatively clean air, i.e. areas meeting the National Ambient
Air Quality Standards (NAAQS). The Act provides for three
classifications applicable to all lands of the United States: Class I,
Class II, and Class III. Associated with each classification are
increments which represent the increase in air pollutant concentrations
that would be considered significant. PSD Class I allows the least
amount of deterioration of existing air quality. PSD Class II allows a
moderate amount of deterioration, while PSD Class III allows the
greatest amount of deterioration. Under the 1977 Amendments to the
Clean Air Act, all areas of the country that met the NAAQS were
initially designated as Class II, except for certain international
parks, wilderness areas, national memorial parks and national parks,
which were designated as Class I along with any other areas previously
designated Class I. The Act allows states and Indian governing bodies
to redesignate areas under their jurisdiction to PSD Class I or PSD
Class III ``to accommodate the social, economic, and environmental
needs and desires of the local population.'' Arizona v. EPA, 151 F.3d
1205, 1208 (9th Cir. 1998).
On May 11, 2017, the Kalispel Tribe submitted to the EPA an
official proposal to redesignate the original Kalispel Reservation from
Class II to Class I. The original Kalispel Reservation was established
by Executive Order No. 1904, signed by President Woodrow Wilson on
March 23, 1914. A copy of this Executive Order is included in the
docket for this action. The Kalispel Tribe submitted a supplement to
the official proposal on July 13, 2017. The Kalispel Reservation is
located in the State of Washington. The Kalispel Tribe's proposal and
supplement included an analysis of the impacts of the redesignation
within and outside of the proposed Class I area, documentation of the
delivery and publication of appropriate notices, a record of the public
hearing held on April 10, 2017, and comments received by the Kalispel
Tribe on the proposed redesignation. EPA proposed to approve the
Kalispel Tribe's proposal to redesignate the original Kalispel
Reservation to a Class I area on October 31, 2018. (83 FR 54691). An
explanation of the requirements for a redesignation and how the
Kalispel Tribe complied with those requirements was provided in the
notice of proposed rulemaking and will not be restated here.
The public comment period for this proposed action was open October
31, 2019 through December 14, 2018 and reopened February 5, 2019
through February 20, 2019. EPA held a public hearing on the proposed
action on December 6, 2018 in Newport, Washington. During this hearing,
16 members of the public provided verbal comments. Of the 16 verbal
commenters, 15 supported EPA's proposed approval of the Kalispel
Tribe's redesignation, while one commenter expressed interest in
establishing air quality monitoring stations in Pend Oreille County.
This comment was determined to be unrelated to this action and no
further discussion is provided below. Documentation of these comments
is included in the docket for this action.
II. Response to Comments
EPA received comments from 164 parties on the proposed approval of
the Kalispel Tribe redesignation request. Of the 164, 137 commenters
supported EPA's proposed action, while 17 opposed EPA's proposed
action. The remaining ten comments were either unrelated to EPA's
proposed approval of the Kalispel Tribe's redesignation request or did
not recommend EPA take a position on the redesignation request. In
particular, several commenters expressed opposition to the proposed
construction of a silicon smelter in Newport, Washington. However, the
potential silicon smelter is unrelated to EPA's proposed approval of
the Kalispel Tribe's redesignation request. In addition, one commenter
provided information on the air quality monitoring needs in Pend
Oreille County, but did not connect this information with EPA's
proposed approval of the Kalispel Tribe's request. EPA has considered
all the relevant comments received. Within this section, we have
summarized the adverse comments and provided our responses.
[[Page 34307]]
A full copy of comments received is available in the docket for this
final action.
A. Economic Impacts of Redesignation
Several commenters argued that EPA should deny the Kalispel Tribe's
proposal because redesignating the Kalispel Tribe's original
reservation to Class I under the CAA PSD program would hinder economic
development in the area. As stated in the proposal, the CAA establishes
a narrow role for EPA in reviewing a state or tribe's proposal to
redesignate certain areas as either Class I or Class III. Section
164(b)(2) of the CAA states, ``The Administrator may disapprove the
redesignation of any area only if he finds, after notice and
opportunity for public hearing, that such redesignation does not meet
the procedural requirements of [Section 164 of the CAA] or is
inconsistent with the requirements of [Section 162(a) of the CAA]
(listing mandatory Class I areas).''
Similarly, the United States Court of Appeals for the Ninth Circuit
recognized that when Congress amended Section 164 of the CAA in 1977,
Congress intended to ``eliminat[e] the authority which EPA had to
override a local government's classification of any area on the ground
that the local government improperly weighed energy, environment, and
other factors.'' Arizona, 151 F.3d at 1211 (citing H.R. Rep. No. 95-
294, at 7-8). The Ninth Circuit also made clear that once the
procedural requirements of Section 164 of the CAA and 40 CFR 52.21 are
met, the EPA must approve the request for redesignation. Id. at 1208,
1211. The Seventh Circuit has similarly acknowledged that EPA has
``little discretion'' when reviewing redesignation requests, provided
the procedural requirements have been met. Michigan v. EPA, 581 F.3d
524, 526 (7th Cir. 2009) (citing Arizona, 151 F.3d at 1208).
Therefore, as described in the statutory text, EPA's role in acting
on a state or tribe's proposal is to determine whether the procedural
requirements in Section 164 of the CAA and implementing regulations at
40 CFR 52.21(g) have been met, not to assess the prudence of a state or
tribe's proposal based on economic considerations or other factors.
Moreover, neither the CAA, nor 40 CFR 52.21(g) require a state or tribe
requesting redesignation to demonstrate that the redesignation will
have no adverse economic, social, or energy effects. As stated in the
proposal, EPA found no procedural defects in the Kalispel Tribe's
proposed redesignation. Therefore, consistent with the constraints of
Section 164 of the CAA and 40 CFR 52.21(g), EPA has determined that
approval of the redesignation is appropriate.
B. Consultation With Elected Leadership of Local and Other Substate
Governments in the Area Covered by the Proposed Redesignation
Several commenters argued that the regulations governing the
process for seeking redesignation mandated that the Kalispel Tribe
consult with county-level governments surrounding or near the Kalispel
Reservation. The regulation at 40 CFR 52.21(g)(2)(v) provides that
``the State has proposed the redesignation after consultation with the
elected leadership of local and other substate general purpose
governments in the area covered by the proposed redesignation.'' The
regulation at 40 CFR 52.21(g)(4)(i) provides that lands within the
exterior boundaries of Indian Reservations may be redesignated if the
Indian Governing Body has followed procedures equivalent to those
required of a State under 40 CFR 52.21(g)(2).
The Kalispel Tribe's proposal makes clear that the area covered by
the proposed redesignation is the original reservation established by
Executive Order No. 1904, signed by President Woodrow Wilson on March
23, 1914. The Kalispel Business Council is the exclusive governing
authority in the Kalispel Reservation. Therefore, the Kalispel Tribe
satisfied this requirement. The area ``covered'' by the redesignation
is separate and distinct from the areas that may be ``affected'' by the
redesignation. Importantly, the consultation requirement in 40 CFR
52.21(g)(2)(v) is limited only to the areas ``covered'' by the
redesignation and does not extend to the areas potentially ``affected''
by the redesignation. As stated in the proposal, there is no
consultation requirement for areas that may be affected by the proposed
redesignation. By extension, the Kalispel Tribe was not required to
consult with county-level governments in Washington or Idaho prior to
proposing the redesignation. EPA's evaluation of the Kalispel Tribe's
compliance with the procedural requirements at 40 CFR 52.21(g)(2)(v)
and 40 CFR 52.21(g)(4)(i) is consistent with the regulatory text.
One commenter stated that because the Kalispel Reservation is
located within Pend Oreille County, Pend Oreille County constitutes a
local or substate government in the Kalispel Reservation as
contemplated by 40 CFR 52.21(g)(2)(v) and 40 CFR 52.21(g)(4)(i). The
commenter further stated that EPA's interpretation of 40 CFR
52.21(g)(2)(v), as described in the proposal, undercuts its purpose.
We decline to accept the commenter's interpretation of 40 CFR
52.21(g)(2)(v) to require tribes to consult with substate governments
whose boundaries encompass an Indian Reservation. If there existed
municipalities or counties within the Kalispel Reservation and the
Kalispel Business Council proposed to redesignate lands in those
municipalities or counties, then the regulations at 40 CFR
52.21(g)(2)(v) and 40 CFR 52.21(g)(4)(i) would require the Kalispel
Business Council to consult with the elected leadership of those
municipalities or counties. Here, the Kalispel Business Council is the
only governing body with jurisdiction within the Kalispel Reservation.
This constitutes an equivalent requirement as that mandated of a state
in 40 CFR 52.21(g)(2)(v). Accordingly, this interpretation maintains
fidelity to the plain language and purpose of 40 CFR 52.21(g)(4)(i) and
(g)(2)(v) and ensures that local and substate governments in the area
covered by the redesignation will be consulted prior to a state or
tribe proposing redesignation.
C. Inadequate Notice
Three commenters argued that the Kalispel Tribe failed to provide
required notice to certain county-level governments potentially
impacted by the proposed redesignation. However, EPA does not interpret
40 CFR 52.21(g) or 51.102 as requiring the Kalispel Tribe to provide
direct notice of the proposed redesignation to each of these counties
individually. As explained in the proposal, and incorporated herein,
the Kalispel Tribe satisfied the notification requirements of Section
164 of the CAA and implementing regulations at 40 CFR 52.21(g). The
Tribe published a notice of the April 10, 2017, public hearing in the
Newport Miner on March 8, 2017, and again on March 15, 2017, as
required by 40 CFR 52.21(g)(2)(i). Also, the Tribe directly notified
other states, Indian governing bodies, and federal land managers at
least 30 days prior to the public hearing as required by 40 CFR
52.21(g)(2)(ii).
As stated above, the Tribe was not required by Section 164 of the
CAA, nor the regulations at 40 CFR 52.21(g), to make a finding on what
areas may be affected by the proposed redesignation or provide direct
notice to such governments in such areas. Nevertheless, on March 6,
2017, the Tribe sent several Pend Oreille County; City of Newport,
Washington; Pend Oreille Public Utility District; and Washington
Department of Ecology officials a courtesy notice of the Tribe's
[[Page 34308]]
intent to propose redesignation, as well as the date, time, and
location of the public hearing and the availability of the Kalispel
Tribe's February 2017 Class I Redesignation Technical Report
(``Technical Report''). Therefore, the Tribe satisfied the notice
requirements of the CAA and regulations.
D. Provide a Discussion of the Reasons for the Proposed Redesignation
Including a Satisfactory Description and Analysis of the Health,
Environmental, Economic, Social, and Energy Effects of the Proposed
Redesignation
Several commenters argued that the Kalispel Tribe's Technical
Report (Document No. EPA-R10-OAR-2017-0347-0013 in the Docket) failed
to provide a satisfactory description and analysis of the economic,
social, and energy effects of the proposed redesignation, as required
by 40 CFR 52.21(g)(2)(iii). In particular, several commenters stated
that the economic analysis provided in the Technical Report
inappropriately included data from Spokane County and Stevens County.
The commenters argued that the economic situation of Pend Oreille
County exclusively was more dire than the regional analysis depicted in
the Technical Report and that not all workers living in Pend Oreille
County can commute to Spokane.
The statute and regulations do not establish a standard for a
``satisfactory description and analysis of the health, environmental,
economic, social, and energy effects of the proposed redesignation. . .
.'' 42 U.S.C. 7474(b)(1)(A). The Ninth Circuit's evaluation of a
similar criticism of the adequacy of a tribe's analysis is informative.
The court stated, ``Congress has established a narrow role for EPA in
reviewing State or Tribal requests for redesignation'' and that
``Congress limited EPA's authority to disapprove redesignation requests
to a procedural level.'' Arizona, 151 F.3d at 1211. Reviewing a
challenge to a redesignation, which included the question of whether
the Tribe's analysis was ``satisfactory,'' the Court found that EPA
``reasonabl[y] interpret[ed]'' the statutory requirements when the
agency concluded that a `` `satisfactory description and analysis' is a
relatively low threshold.'' Id.
The court also explained that the CAA ``does not assign any weight
to these individual effects and does not suggest that one effect should
be given priority over another'' and that Congress did not intend for
EPA to ``re-weigh[ ] the effects of a proposed redesignation or second-
guess[ ] a Tribe's decision to redesignate its reservation lands.''
Arizona, 151 F.3d at 1211-12. Our review of the Technical Report was
informed, in part, by the Ninth Circuit's analysis of Section
164(b)(1)(A) of the CAA and we concluded that the analysis was
satisfactory. Further, as detailed below, the commenters did not
provide information that called into question the factual foundation of
the Technical Report.
Specifically, our review of the Technical Report indicated that the
Tribe's analysis of the economic impacts of redesignation on Pend
Oreille, Stevens, and Spokane Counties was reasonable. In particular,
the Technical Report includes a supplemental report as Appendix B
entitled ``The Economic Impact of Redesignation of the Kalispel Indian
Reservation as a Class I Area under the Clean Air Act's Prevention of
Significant Deterioration Program.'' This report included a section
entitled ``Defining the Economic Area in Which the Kalispel Tribe is
Embedded,'' which explains the Tribe's rationale for defining the
Kalispel Reservation Economic Area.
According to this section, the economic analysis included Spokane
County and Stevens County because of the economic connections between
Pend Oreille County and Stevens County with Spokane County. Pend
Oreille County, Spokane County, and Stevens County are located in the
Spokane Metropolitan Statistical Area, which is defined by the U.S.
Bureau of Economic Analysis based on measured connections between those
counties. The section also included data on commuting patterns that
indicated 24% of workers in Pend Oreille County commute to Spokane
County for work. Commenters did not provide any data to refute these
commuting patterns or the economic connections between the counties.
Indeed, the propriety of the Tribe's inclusion of Stevens County in the
analysis is reinforced by the fact that the Stevens County
Commissioners commented on EPA's proposed rulemaking, highlighting the
potential economic impacts of redesignation on residents of Stevens
County.
The regulation at 40 CFR 52.21(g)(2)(iii) required the Tribe to
analyze the economic effects of the proposed redesignation. The
regulation does not specify the scope of the analysis. Given the
potential for the redesignation to impact pollution sources in Stevens
County and Spokane County and the economic linkages between those
counties, the Tribe was not unreasonable in analyzing the economic
impact of redesignation on all three counties collectively. Moreover,
based on the numerous substantive comments the Tribe received regarding
the economic situation in Pend Oreille County, the Technical Report
appears to have aided the public in providing comments on the Tribe's
proposed redesignation.
In addition to the comments regarding the Tribe's economic impacts
analysis, one commenter noted that the Technical Report incorrectly
accounts for emissions from Ponderay Newsprint Company's facility
located less than two miles south of Usk, Washington and inaccurately
suggests that Ponderay Newsprint Company's facility accounts for all
PM10 emissions in the County. However, the Technical
Report's description of emissions sources and levels in the area near
the Kalispel Reservation is satisfactory.
Specifically, the Technical Report includes a narrative discussion
of the sources of emissions in Pend Oreille County and summarized these
emissions in Table 13 and Table 14 in the Technical Report. Contrary to
the commenter's assertions, the narrative description in the Technical
Report makes clear that a sawmill operated by Vaagen Brothers Lumber,
Inc. and a locomotive repair facility operated by Pend Oreille Valley
Railroad produce particulate emissions in the County, but that
information on the precise emissions from these sources was not
publicly available. The Tribe also noted in its discussion of emissions
sources that the Tribe could not ascertain the status of the air
quality permit for Ponderay Newsprint Company's facility. In the
alternative, the Tribe obtained emissions estimates for Ponderay
Newsprint Company's facility from the Washington Department of
Ecology's Title V Program Review Final Report dated September 22, 2014
and provided these estimates in Table 14. Given that the Washington
Department of Ecology is the permitting authority for Ponderay
Newsprint Company's facility, the Tribe's reliance on these figures is
reasonable. The Tribe's decision not to provide an estimate of
emissions from other point sources of particulate matter in Table 13 in
the absence of a credible source of emissions data was similarly
reasonable.
As well as the comments regarding the emissions data presented in
the Tribe's Technical Report, three commenters argued that the
Technical Report was not satisfactory because it did not include an
analysis of the current consumption of the PSD increment for
particulate matter with a diameter less than 10 micrometers
(PM10). The commenters contend that the absence of this
analysis renders the entire Technical Report materially
[[Page 34309]]
deficient. We disagree. As stated above, the Kalispel Tribe was
required to provide the public, at least 30 days in advance of the
public meeting, a discussion of the reasons for the proposed
redesignation including a satisfactory description and analysis of the
health, environmental, economic, social, and energy effects of the
proposed redesignation. The Kalispel Tribe did so. The Kalispel Tribe
provided the Technical Report over 30 days in advance of the April 10,
2017, public hearing. As discussed in the proposal, EPA assessed the
report and determined that it contains a thorough description of the
health, environmental, economic, social, and energy effects of the
proposed redesignation.
EPA's assessment is consistent with the limited role assigned to
EPA in this endeavor. The Ninth Circuit has recognized that ``Congress
has established a narrow role for EPA in reviewing State or Tribal
requests for redesignation'' and that ``Congress limited EPA's
authority to disapprove redesignation requests to a procedural level.''
Arizona v. EPA, 151 F.3d at 1211. Reviewing a challenge to a
redesignation, which included the question of whether the Tribe's
analysis was ``satisfactory,'' the Court found that EPA ``reasonabl[y]
interpret[ed]'' the statutory requirements when the agency concluded
that a `` `satisfactory description and analysis' is a relatively low
threshold.'' Id. Consistent with that direction, given the thorough
description and analysis included in the report, it is reasonable for
us to conclude that the Kalispel Tribe has cleared this low threshold.
Indeed, the Tribe's Technical Report exceeded the minimum requirements
in several respects, as discussed below.
Similar to the commenters here, the petitioners in Arizona v. EPA
argued that the Yavapai-Apache Tribe's description and analysis of the
potential effects of redesignation was inadequate. Arizona v. EPA, 151
F.3d at 1212. The Court noted in Arizona v. EPA that the Tribe's report
``failed to detail what specific effect, if any, redesignation could
have on local sources already in existence . . . .'' Id. at 1209. The
Court nevertheless upheld EPA's approval of the redesignation request
on the grounds that the CAA does not mandate a detailed assessment of
the impacts of redesignation on existing sources. Id. at 1211-12. The
Court stated that ``it cannot be said that EPA abused its discretion in
concluding that the Tribe was not required, as a prerequisite to
redesignation, to go further in its Plan by (1) explicitly balancing
the different effects of redesignation; (2) identifying air quality
related values; (3) evaluating the extent to which Class I status might
discourage particular industrial development and expansion; or (4)
pointing to off-site sources which might be impacted by the
redesignation, including the Phoenix Cement Plant.'' Id. at 1212.
Contrary to the commenters' assertions, the Technical Report at
Section 4.1 and Appendix C make clear that the proposed Class I
redesignation would reduce the allowable increases above baseline
concentration in particulate matter emissions currently allowed under
the PSD increment for Class II areas. That is the nature of the Class I
PSD redesignation. The commenters are correct that increases in
emissions of PM10 since the minor source baseline date was
triggered consume increment, while decreases in emissions make
increment available for future consumption. The emissions increases and
decreases contributing to increment consumption fluctuate over time.
Moreover, increment consumption is both time- and location-specific--
two sources can both consume 100% of the increment if their impact
occurs at different locations or different times. An analysis of
increment consumption at a fixed point in time, as the commenters
request, would not change the overall analysis given these
fluctuations.\1\
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\1\ We also note that if the State or EPA determines that an
applicable increment is being violated, then the State or EPA is
obligated to promulgate a revised implementation plan to correct the
violation. However, neither the CAA nor the implementing regulations
prescribe how the regulatory authority must act to reduce emissions
or what sources the regulatory authority must control. In addition,
interested parties will have an opportunity to comment on any plan
revisions the State or EPA proposes to correct the increment
violation prior to the revisions taking effect.
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While determining the current PM10 increment consumption
in the area in and around the Kalispel Reservation would have provided
the public with a snap-shot of the current situation, this
determination is not an indispensable component of the description and
analysis of the potential impacts of redesignation, as the commenter
suggests. Given the temporal and spatial nature of the increments, an
analysis of potential impacts would need to include numerous
assumptions about future emissions changes and the emissions from
future projects. EPA does not interpret the requirement of Section 164
of the CAA and 40 CFR 52.21(g) to provide a ``satisfactory description
and analysis'' of potential impacts as requiring such a highly
technical and speculative analysis as a prerequisite to obtaining Class
I PSD redesignation. As stated above, the Ninth Circuit made clear in
Arizona v. EPA that Section 164 of the CAA does not require a detailed
assessment of the impacts of redesignation on existing sources. Id. at
1211-12.
Furthermore, the Tribe did provide an assessment of the impact of
redesignation on two hypothetical energy projects sited near the
Kalispel Reservation. As part of these assessments, the Kalispel Tribe
modeled the PM2.5, SO2, and NOX
increment consumption from both hypothetical projects. The assessments
modeled consumption of PM2.5 increments which are lower than
the corresponding PM10 increments as a conservative worst-
case scenario. The Kalispel Tribe's assessments of the two hypothetical
scenarios provide a meaningful analysis of the economic and energy
impacts of the proposed redesignation that added value to the public
hearing process.
Finally, several commenters argued that the Tribe's Technical
Report inaccurately determined that the forest products industry was
declining in the area surrounding the reservation and that economic
growth in the area is more likely to be driven by sectors other than
manufacturing. However, these commenters provided minimal empirical
data to refute the Tribe's analysis. Therefore, the Tribe was not
unreasonable to structure its analysis of the economic and social
impacts of the redesignation around the predicted economic makeup of
the region surrounding the Kalispel Reservation. The Tribe provided a
satisfactory discussion of the reasons for the proposed redesignation
including a satisfactory description and analysis of the health,
environmental, economic, social, and energy effects of the proposed
redesignation as required by Section 164 of the CAA and 40 CFR
52.21(g)(2)(iii).
E. EPA Should Require the Kalispel Tribe To Redesignate Its Entire
Reservation, Not Just a Portion of the Reservation
One commenter argued that EPA should require the Kalispel Tribe to
include its entire reservation in the redesignation proposal, rather
than just the original reservation. First, neither the CAA nor the
regulations at 40 CFR 52.21(g)(4) prohibit a tribe from proposing
redesignation of a portion of its reservation. Section 164(c) of the
CAA and 40 CFR 52.21(g)(4) state that lands within the exterior
boundaries of Indian Reservations may be redesignated only by the
appropriate Indian Governing Body. It is reasonable for EPA to read
these sections as not
[[Page 34310]]
prohibiting a Tribe from proposing to redesignate only a portion of its
reservation, as there is no statutory text indicating that if any part
of a Tribe's reservation is redesignated then all of the reservation
land must be redesignated.
Contrary to the commenter's statements, EPA's approvals of prior
redesignation proposals from other Indian governing bodies is
consistent with this interpretation. Indeed, EPA approved the Forest
County Potowatomi Community's proposal to redesignate only those
parcels in the Community's land that equaled or exceeded 80 acres in
size. See, 73 FR 23086, 23101 (April 29, 2008). The commenter
references EPA's action in approving the Yavapai-Apache Tribal
Council's proposal to redesignate the Tribe's entire reservation as
support that the CAA requires tribes to propose redesignation of their
entire reservations, rather than just a portion of their reservations.
61 FR 56450 (Nov. 1, 1996). However, the action cited by the commenter
differs materially from the current action regarding the Kalispel
Tribe's proposal. Namely, in the action cited by the commenter, the EPA
was required to resolve a dispute between the Governor of Arizona and
the Yavapai-Apache Tribe under Section 164(e) of the CAA. 61 FR 56450,
56452. When this dispute resolution procedure is invoked, Section
164(e) of the CAA requires EPA to consider the extent to which the
lands involved in the redesignation are of sufficient size to allow
effective air quality management or have air quality related values of
such an area.
Here, no state has requested EPA resolve any dispute under the
authority of section 164(e), and authority to invoke dispute resolution
is limited to just states and Indian tribes by the statutory text of
section 164(e). Therefore, under Section 164(b) of the CAA, EPA lacks
authority to consider whether the lands the Kalispel Tribe has proposed
for redesignation are of sufficient size. As stated above, the EPA may
disapprove the Kalispel Tribe's request only if the Tribe failed to
follow the procedural requirements in Section 164 of the CAA and 40 CFR
52.21(g).
F. Regulatory Flexibility Act
One commenter argued that EPA was required by the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601-612, to include in the notice of
proposed rulemaking an initial regulatory flexibility analysis. In the
notice of proposed rulemaking, the Regional Administrator for EPA
Region 10 certified pursuant to Section 605 of the RFA that the
proposed rule, if finalized, would not have a significant economic
impact on a substantial number of small entities. The commenter argues
that the Regional Administrator's certification was improper because
approval of the Kalispel Tribe's redesignation proposal impacts small
entities located near the reservation.
We disagree. The Regional Administrator's certification was proper
because EPA's approval of the redesignation does not impose any direct
regulatory burden on any small entities. The Regulatory Flexibility Act
imposes no obligation for EPA to conduct a small entity impact analysis
of effects on entities which EPA does not regulate. As stated in the
proposal, the PSD program already exists on the Reservation and the
surrounding area. This action merely approves a Tribe's request to
redesignate a portion of its reservation to a Class I area under the
PSD program and does not impose any direct regulatory obligations on
any sources within or surrounding the Reservation. The State of
Washington Department of Ecology administers the PSD Program on the
lands surrounding the Kalispel Reservation. While the redesignation may
impact the State of Washington's planning and permitting decisions,
this indirect impact does not constitute direct regulation of small
entities. See Michigan v. EPA, 213 F.3d 663, 689 (D.C. Cir. 2000), see
also Am. Trucking Associations, Inc. v. EPA, 175 F.3d 1027, 1044 (D.C.
Cir. 1999).
EPA administers the PSD program on the Kalispel Reservation. Even
accepting that approving the Kalispel Tribe's proposal constitutes
direct regulation of small entities within the Reservation, there are
no permitted stationary sources of emissions within the exterior
boundaries of the original Kalispel Reservation. Whether any PSD
permits or minor source permits will be issued after the redesignation
is speculative, so any effect of the redesignation on any EPA
permitting decision is similarly speculative. Therefore, there is
insufficient information to conclude that there would be a significant
economic impact on a substantial number of small entities located
within the Reservation. Accordingly, the Regional Administrator's
certification was proper.\2\
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\2\ We also note that this Final Rule amends the FIP for the
Kalispel Indian Community for Kalispel Reservation, Washington.
codified at 40 CFR 49.10191-49.10220. On April 8, 2005, EPA
promulgated this FIP, as well as FIPs for other federally recognized
Indian tribes in Washington, Oregon, and Idaho. These FIPs are
collectively called the Federal Air Rules for Reservations
(``FARR''). See 40 CFR part 49, subpart M and 70 FR 18074. In that
rulemaking EPA certified that the promulgation of the FARR would not
have a significant economic impact on a substantial number of small
entities. 70 FR 18074, 18091-92. Therefore, the Regional
Administrator's certification for today's revision to one of the
FIPs in the FARR is consistent with the EPA's prior determinations
on the impacts of the FARR on small entities.
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G. Other Specific Questions or Comments
Summary: One commenter states that the Clean Air Act did not intend
to redesignate areas of land under 5,000 acres.
Response: EPA disagrees. In Section 162(a) of the CAA, Congress
initially classified certain areas as Class I under the PSD program,
and prohibited redesignation of these areas. Specifically, this section
states that all international parks, national wilderness areas which
exceed 5,000 acres in size, national memorial parks which exceed 5,000
acres in size, and national parks which exceed six thousand acres in
size will be classified as Class I. The 5,000-acre threshold is
expressly associated with national wilderness areas and national
memorial parks and identifies those areas that are mandatory Class I
areas that ``may not be redesignated.'' 42 U.S.C. 7472(a). The
statutory text does not establish a size limitation for all Class I
areas. Lands of the type identified in Section 162(a) of the CAA that
are below the associated size limits are Class II areas by default.
Section 164 of the CAA explicitly authorizes states and Indian tribes
to redesignate areas as Class I and does not prescribe a size. Neither
Section 162 nor Section 164 of the CAA restrict a tribe or state from
proposing to redesignate portions of a reservation or state land under
5,000 acres.
Summary: One commenter asserts that a fair and open public hearing
held by the Kalispel Tribe never occurred due to the hearing examiner
instructing a participant to stop speaking, which discouraged other
participants from speaking.
Response: EPA disagrees. In order to allow all participants an
opportunity to speak during a public hearing, it is common and
appropriate for a hearing examiner or officer to establish a time
limit. EPA reviewed this hearing transcript (Document No. EPA-R10-OAR-
2017-0347-0029 in the Docket) and determined that the hearing examiner
established a three-minute time limit at the beginning of the hearing
and enforced this limit during the hearing. Time-limits can be abrupt
in nature, however even with the established time limit, the transcript
appears to contain full dialogue from participants. All speakers were
subject to the same time limit and members of
[[Page 34311]]
the public also had the opportunity to submit written comments to the
Tribe.
Summary: One commenter asks what effect this designation will have
on agricultural field, forest slash, and forest health burning in their
community.
Response: We note at the outset that the commenter does not
recommend the EPA take a different action than proposed. Therefore, EPA
provides the following response for informational purposes only.
Emissions increases from the open burning of agricultural field
residues or forest slash, and forest health burning after the minor
source baseline date may consume the available PSD increment or may
expand the increment if such emissions decrease. However, the emissions
from these open burning activities are transitory and occur for short
durations and at different locations each year. When such emissions are
included in increment consumption calculations, we would expect the
consumption at any location from such emissions to be small due to the
transitory nature of the emissions. Thus, it is unlikely that the
redesignation of the Kalispel Indian Reservation to PSD Class I will
have an impact on current or future open burning activities.
Summary: One commenter asserts that Boundary County, Idaho is
downwind from the Tribal Reservation and the commenter requests that
all lands in Boundary County be excluded from the Class I
redesignation.
Response: This final action only applies to the area within the
external boundaries of the original Kalispel Tribe reservation, as
identified in the proposed rule. Boundary County, Idaho will not be
redesignated to a Class I area as part of this action.
Summary: Numerous commenters expressed support for EPA's proposed
approval of the Kalispel Tribe's redesignation request and encouraged
EPA to finalize the approval.
Response: We have considered these comments, acknowledge the
support, and agree that finalizing approval of the Kalispel Tribe's
redesignation request is appropriate.
III. Final Action
The EPA's review has not found any procedural deficiencies
associated with the Kalispel Tribe's proposal. Accordingly, pursuant to
section 164 of the CAA and 40 CFR 52.21(g), the redesignation is hereby
approved. The EPA is codifying the redesignation through a revision to
the FIP currently in place for the Kalispel Indian Reservation. See 40
CFR 49.10191-49.10220. This FIP will be implemented by the EPA unless
or until it is replaced by a TIP. To ensure transparency, the EPA is
also making a clarifying revision to the Washington State
Implementation Plan at 40 CFR part 52, subpart WW, which would inform
any party interested in Washington's significant deterioration of air
quality provisions that the Kalispel Reservation is a Class I area for
purposes of prevention of significant deterioration of air quality.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of the Executive Order (E.O.) 12866 (58 FR 51735, October 4,
1993) and is therefore not subject to review under the E.O., and was
not submitted to the Office of Management and Budget (OMB) for review.
B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
We are not proposing to promulgate any new paperwork requirements
(e.g., monitoring, reporting, record keeping) as part of this action.
The regulation at 40 CFR 49.10198 incorporates by reference the Federal
PSD program promulgated at 40 CFR 52.21. The OMB has previously
approved the information collection requirements contained in the
existing regulations (40 CFR 52.21) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003, EPA ICR number 1230.32.
D. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedures Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For the purposes of assessing the impacts of this final action on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field. I certify that this action will not have
a significant economic impact on a substantial number of small entities
under the RFA. As stated in Section II, this action will not impose any
new requirements on small entities. This action will redesignate to
Class I only those lands within the exterior boundaries of the Kalispel
Indian Reservation under the CAA's PSD program. The PSD permitting
requirements already apply on the Reservation as well as the
surrounding area. In addition, the PSD permitting requirements only
apply to the construction of new major stationary sources or major
modifications to existing major stationary sources. Therefore, the EPA
does not anticipate this action having a significant economic impact on
a substantial number of small entities.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. This action does not contain any
unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. Nor does this action create additional requirements
beyond those already applicable under the existing PSD permitting
requirements.
F. Executive Order 13132: Federalism
This action does not have Federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This
action does not change the relationship between the states and the EPA
regarding implementation of the PSD permitting
[[Page 34312]]
requirements in the area. The EPA administers the PSD permitting
requirements within the Kalispel Reservation. The States of Washington
and Idaho administer the permitting requirements in the nearby areas.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on Federally-recognized
tribal governments, nor preempt tribal law. The EPA is finalizing this
action in response to the Kalispel Tribe's proposal to redesignate the
Kalispel Reservation from a Class II to a Class I area. Major
stationary sources proposed to be constructed within the boundaries of
the Kalispel Reservation will be required to demonstrate that the
source does not contribute to an exceedance of the lower PSD increments
for Class I areas. Nonetheless, pursuant to the EPA Policy on
Consultation and Coordination with Indian Tribes, the EPA consulted
with tribal officials early in the process of developing this proposed
action so that they could have meaningful and timely input into its
development. The Kalispel Tribe submitted its proposal on May 11, 2017.
Subsequent to receiving the submission, the EPA communicated and
corresponded with the Tribe numerous times throughout the review
process.
H. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. Redesignation of the Kalispel
Indian Reservation to Class I from Class II will reduce the allowable
increase in ambient concentrations of various types of pollutants. The
reduction of allowable increases in these pollutants can only be
expected to better protect the health of tribal members, members of the
surrounding communities, and especially children and asthmatics. See 78
FR 3086 (regarding the specific human health consequences of exposure
to elevated levels of coarse and fine particles); 82 FR 34792
(regarding the specific human health consequences of exposure to
elevated levels of nitrogen dioxide); 75 FR 35520 (regarding the
specific human health consequences of exposure to elevated levels of
sulfur dioxide).
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This action does not involve technical standards. This action
merely redesignates the Kalispel Reservation as a Class I area for the
purposes of the PSD permitting requirements.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
Prior to this proposal, the EPA reviewed population centers within and
around the Kalispel Indian Reservation to identify areas with
environmental justice concerns. The results of this review are included
in the docket for this action.
Redesignating the Kalispel Indian Reservation will not have an
adverse human health or environmental effect on residents within the
Reservation or in the surrounding community. On the contrary, by
lowering the applicable PSD increments, the redesignation will be more
protective of air quality. The following pollutants are subject to the
increment requirement: Fine Particulate Matter (PM2.5),
PM10, SO2, and Nitrogen Dioxide (NO2).
Exposure to these pollutants is known to have a causal relationship
with adverse health effects, such as premature mortality
(PM2.5, PM10, SO2), exacerbation of
asthma (NO2 and SO2), and other respiratory
effects (NO2 and SO2). See 78 FR 3086, 82 FR
34792, and 75 FR 35520. Therefore, a reduction of the allowable
concentrations of these pollutants in this area lowers the risk to the
surrounding communities of adverse health effects.
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
M. Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 16, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements (See section 307(b)(2)).
V. Statutory Authority
The statutory authority for this proposed action is provided by
sections 110, 301 and 164 of the CAA as amended (42 U.S.C. 7410, 7601,
and 7474) and 40 CFR part 52.
List of Subjects
40 CFR Part 49
Environmental protection, Administrative practice and procedure,
Air pollution control, Indians, Incorporation by reference,
Intergovernmental relations, Particulate matter, Reporting and
recordkeeping requirements.
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: July 5, 2019.
Chris Hladick,
Regional Administrator, Region 10.
For the reasons stated in the preamble, 40 CFR parts 49 and 52 are
amended as follows:
[[Page 34313]]
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
0
1. The authority citation for Part 49 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart M--Implementation Plans for Tribes--Region X
0
2. Revise Sec. 49.10198 to read as follows:
Sec. 49.10198 Permits to construct.
(a) Permits to construct are required for new major stationary
sources and major modifications to existing stationary sources pursuant
to 40 CFR 52.21.
(b) In accordance with section 164 of the Clean Air Act and the
provisions of 40 CFR 52.21(g), the original Kalispel Reservation, as
established by Executive Order No. 1904, signed by President Woodrow
Wilson on March 23, 1914, is designated as a Class I area for the
purposes of prevention of significant deterioration of air quality.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
3. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart WW--Washington
0
4. Amend Sec. 52.2497 by adding paragraph (d) to read as follows:
Sec. 52.2497 Significant deterioration of air quality.
* * * * *
(d) The regulations at 40 CFR 49.10191 through 49.10220 contain the
Federal Implementation Plan for the Kalispel Indian Community of the
Kalispel Reservation, Washington. The regulation at 40 CFR 49.10198(b)
designates the original Kalispel Reservation, as established by
Executive Order No. 1904, signed by President Woodrow Wilson on March
23, 1914, as a Class I area for purposes of prevention of significant
deterioration of air quality.
[FR Doc. 2019-15221 Filed 7-17-19; 8:45 am]
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