[Federal Register Volume 86, Number 37 (Friday, February 26, 2021)]
[Proposed Rules]
[Pages 11674-11678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03826]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R08-OAR-2020-0742; FRL-10020-09-Region 8]
Approval of the Tribal Implementation Plan for the Northern
Cheyenne Tribe
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a Tribal Implementation Plan (TIP) submitted by the Northern
Cheyenne Tribe (Tribe) on September 25, 2017, to regulate air pollution
within the exterior boundaries of the Tribe's Northern Cheyenne Indian
Reservation and four tribal trust parcels (collectively, the
Reservation). The EPA is proposing to approve the TIP based on
maintenance of the National Ambient Air Quality Standards (NAAQS)
through a permitted open burning program. The EPA is taking this action
pursuant to sections 110(o), 110(k)(3), and 301(d) of the Clean Air Act
(CAA or the Act).
DATES: Comments: Written comments must be received on or before March
29, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2020-0742, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit: http://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically in
www.regulations.gov. To reduce the risk of COVID-19 transmission, for
this action we do not plan to offer hard copy review of the docket.
Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access
to the docket.
FOR FURTHER INFORMATION CONTACT: Kyle Olson, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-TRM, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6002, [email protected].
SUPPLEMENTARY INFORMATION:
Throughout this document ``we,'' ``us,'' or ``our'' means the EPA.
Table of Contents
I. The EPA Action Being Proposed Today
II. Introduction
III. Background
IV. Tribal Implementation Plan Requirements
A. What is required for the approval of a Tribal Implementation
Plan?
V. Northern Cheyenne Tribe's TIP Submittal
A. Northern Cheyenne Tribe TAS Eligibility
B. What authority does the Northern Cheyenne Tribe's Department
of Environmental Protection and Natural Resources (DEPNR) have?
C. What role does the EPA have in criminal enforcement?
D. When did the Northern Cheyenne Tribe adopt the TIP under
Tribal Law?
E. What is included in the Northern Cheyenne Tribe's TIP
submittal?
1. Ambient Air Quality Standards
2. Open Burning Program
3. Enforcement
VI. What EPA action is being taken today?
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
[[Page 11675]]
I. The EPA Action Being Proposed Today
The EPA is proposing approval of the Tribe's TIP submission which
contains programs to address: Ambient air quality standards for sulfur
dioxide (SO2), particulate matter (PM10 and
PM2.5), nitrogen dioxide (NO2), ozone
(O3), carbon monoxide (CO), and lead; permitting; open
burning; and enforcement.
II. Introduction
The Tribe is a federally-recognized Indian tribe by the U.S.
Secretary of the Interior. See 85 FR 5462, 5464 (January 30, 2020).
Beginning in 2017, the Tribe, with assistance from the EPA, began
developing a draft TIP and its various elements with the goal of
eventually submitting the TIP to the EPA for approval. On September 25,
2017, the Tribe requested that the EPA find the Tribe eligible for
treatment in a similar manner as a state (TAS), pursuant to section
301(d) of the CAA and Title 40 part 49 of the Code of Federal
Regulations (CFR), for the purpose of developing and carrying out a
TIP. The Tribe also formally submitted the TIP to the EPA on September
25, 2017. On June 22, 2020, the EPA determined that the Tribe is
eligible for TAS for that purpose. Having found that the Tribe is
eligible for TAS, the EPA is now proposing to approve the Tribe's TIP.
The Tribe's TIP has been developed to protect the Reservation
populace from air pollution by controlling open burning sources. The
TIP establishes primary and secondary ambient air quality standards for
CO, lead, SO2, PM10, PM2.5,
NO2, and O3. The TIP also establishes an open
burning permitting program and enforcement authorities.
III. Background
The CAA was originally enacted in 1963 and has been significantly
amended over the years (most notably in 1970, 1977, and 1990). Among
other things, the Act: Requires the EPA to establish NAAQS for certain
pollutants; requires the EPA to develop programs to address specific
air quality problems; establishes the EPA's enforcement authority; and
provides for air quality research. As part of the 1990 amendments,
Congress added section 301(d) to the Act authorizing the EPA to treat
eligible Indian tribes ``in the same manner as states'' and directing
the EPA to promulgate regulations specifying those provisions of the
Act for which TAS is appropriate. In February of 1998, the EPA
implemented this requirement by promulgating the Tribal Authority Rule
(TAR) (63 FR 7254 (February 12, 1998), codified at 40 CFR part 49). The
EPA included relevant provisions relating to implementation plans among
the provisions for which TAS is appropriate (exceptions are identified
in 40 CFR 49.4).
Under the provisions of the Act and the EPA's regulations, Indian
tribes must demonstrate that they meet the criteria in section 301(d)
of the Act and the TAR in order to be eligible for TAS. The eligibility
criteria are: (1) The Indian tribe is federally recognized; (2) the
Indian tribe has a governing body carrying out substantial governmental
duties and powers; (3) the functions the Indian tribe is applying to
carry out pertain to the management and protection of air resources
within the exterior boundaries of the reservation (or other areas
within the Indian tribe's jurisdiction); and (4) the Indian tribe is
reasonably expected to be capable of performing the functions the
Indian tribe is applying to carry out in a manner consistent with the
terms and purposes of the Act and all applicable regulations.
An implementation plan is a set of programs and regulations
developed by the appropriate regulatory agency in order to assure
healthy air quality through the attainment and maintenance of the
NAAQS. These plans can be developed by states, eligible Indian tribes,
or the EPA, depending on the entity with jurisdiction and the EPA's
approval in a particular area.
For states, these plans are referred to as State Implementation
Plans or SIPs. For eligible Indian tribes, these plans are called TIPs.
Occasionally, the EPA will develop an implementation plan for a
specific area or source. This is referred to as a Federal
Implementation Plan or a FIP. Once final approval is published in the
Federal Register, the provisions of an implementation plan become
federally enforceable. An applicable implementation plan may be
comprised of both TIPs and FIPs or SIPs and FIPs.
The contents of a typical implementation plan may fall into three
categories: (1) Enforceable emission limitations and other control
measures, means, or techniques, as well as schedules and timetables for
compliance; (2) ``non-regulatory'' components (e.g., attainment plans,
rate of progress plans, emission inventories, statutes demonstrating
legal authority, monitoring programs); and (3) additional requirements
promulgated by the EPA (in the absence of a commensurate state or
tribal provision) to satisfy a mandatory CAA section 110 or part D
requirement. The implementation plan is a living document which can be
revised by the state or eligible Indian tribe as necessary to address
air pollution problems. Accordingly, the EPA from time to time must
take action on implementation plan revisions which may contain new and/
or revised regulations that will become part of the implementation
plan.
Upon submittal to the EPA, the EPA reviews implementation plans for
conformance with federal policies and regulations. If the
implementation plan conforms, the state's or eligible Indian tribe's
regulations become federally enforceable upon EPA approval. The
codification is usually accomplished by notice-and-comment rulemaking,
with publications of proposed and final rules in the Federal Register.
IV. Tribal Implementation Plan Requirements
What is required for the approval of a Tribal Implementation Plan?
For a tribe to receive EPA approval of a TIP, the tribe must, among
other things, obtain a determination from the EPA that the tribe is
eligible for TAS for purposes of the TIP and submit to the EPA a TIP
that satisfies requirements of the Act and relevant regulations that
apply to the plan elements and functions the tribe seeks to carry out.
The following technical elements in a TIP may include, but are not
limited to: \1\
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\1\ United States Environmental Protection Agency, Office of Air
Quality and Planning Standards. Developing a Tribal Implementation
Plan. chapters 2 and 4. https://www.epa.gov/sites/production/files/2018-09/documents/developing_a_tribal_implementation_plan_sept._2018_1.pdf. 2018.
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A list of regulated pollutants affected by the plan;
Documentation that the plan contains emission limitations,
work practice standards, and recordkeeping/reporting requirements; and
Regulations.
The TAR allows tribes to develop, adopt, and submit an
implementation plan for approval as a TIP in a modular fashion, so it
may not be necessary to meet all of the requirements identified above.
The EPA has the authority, under the Act, to enforce the
regulations in an approved TIP. The EPA recognizes that, in certain
circumstances, eligible Indian tribes have limited criminal enforcement
authority. The TAR specifically provides that such limitations on an
Indian tribe's criminal enforcement authority do not prevent a TIP from
being approved. Where implementation of the TIP requires criminal
enforcement authority, and to
[[Page 11676]]
the extent a tribe is precluded from asserting such authority, the
federal government will exercise primary criminal enforcement
responsibility. A memorandum of agreement between an Indian tribe and
the EPA is an appropriate way to address circumstances in which the
tribe is incapable of exercising applicable enforcement requirements as
described in 40 CFR 49.7(a)(6) and 40 CFR 49.8. The memorandum of
agreement shall include a process by which the tribe will provide
potential investigative leads to the EPA and/or other appropriate
federal agencies in an appropriate and timely manner.
V. Northern Cheyenne Tribe's TIP Submittal
A. Northern Cheyenne Tribe TAS Eligibility
On September 25, 2017, the Tribe requested an EPA determination
under the provisions of 40 CFR 49.7 that the Tribe is eligible for TAS
for the purpose of developing a TIP for air quality. On June 22, 2020,
the EPA determined that the Tribe meets the eligibility requirements of
section 301(d) of the Act and 40 CFR 49.6 for the purposes of
developing and carrying out an implementation plan under the Act. EPA's
decision on the TAS is final and is provided as background only in this
action. It is not subject to further public comment as part of this TIP
approval.
B. What authority does the Northern Cheyenne Tribe's Department of
Environmental Protection and Natural Resources (DEPNR) have?
The Northern Cheyenne Tribal Council gave the DEPNR authority to
administer the Northern Cheyenne Clean Air Act (NCCAA) programs on
behalf of the Tribe in Tribal Ordinance No. DOI-008 (2017) dated
December 7, 2016. The Northern Cheyenne Tribal Council had the
authority to take this action pursuant to Article IV, Section 1(a),
(i), and (r) of the Tribe's Amended Constitution and Bylaws.\2\ Tribal
Ordinance NO. DOI-008 (2017) authorized the DEPNR to administer the
NCCAA programs, as allowed under the Act and the EPA's regulations.
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\2\ Northern Cheyenne TAS/TIP Application, section J, page 1.
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C. What role does the EPA have in criminal enforcement?
The Tribe did not submit, and EPA is not proposing to approve, any
criminal enforcement authority under the TIP. Accordingly, the EPA is
responsible for pursuing any criminal enforcement action for violations
of the Act or implementing regulations that occur in Indian country.
Consistent with 49 CFR 49.7(a)(6) and 49 CFR 49.8, on May 14, 2020, the
Tribe entered into a Memorandum of Agreement (MOA) with EPA Region 8
concerning criminal enforcement of air pollution rules and regulations
as part of the TAS application process. Under the terms of this MOA,
the Tribe would refer alleged criminal violations of the Act that
exceed the Tribe's criminal authority to EPA Region 8 if the EPA
approves the Tribe for CAA criminal enforcement authorities in the
future. Neither the proposed action nor the MOA prevent the Tribe from
pursuing criminal enforcement actions within the Tribe's criminal
authority under tribal law.
D. When did the Northern Cheyenne Tribe adopt the TIP under Tribal Law?
On December 7, 2016, the NCCAA was approved by the Tribal Council
as Tribal Ordinance No. DOI-008 (2017). On September 12, 2017, the
Tribal Council passed Resolution No. DOI-201 (2017) authorizing
submission of the NCCAA to the EPA as a TIP under the Act. The Tribe's
staff completed the public notification process for a TIP required by
40 CFR 51.102 and received no public comments and no requests for a
public hearing regarding the TIP.\3\ In addition, the Tribe has posted
the NCCAA on the Tribe's website.
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\3\ Northern Cheyenne TAS/TIP Application, Resolution No. DOI-
201(2017), section Z, page 2.
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E. What is included in the Northern Cheyenne Tribe's TIP submittal?
The Tribe's TIP submittal includes ambient air quality standards
for CO, lead, NO2, O3, PM10,
PM2.5, and SO2, and provisions for an open
burning permit program, enforcement and appeals, and emergency
authority.
1. Ambient Air Quality Standards
The EPA has established primary and secondary NAAQS for six air
pollutants: CO, lead, NO2, O3,
PM10/PM2.5, and SO2. See https://www.epa.gov/criteria-air-pollutants/naaqs-table. Most pollutants
regulated by the NAAQS have two limits. The ``primary'' standard is
designed to protect the public--including children, people with asthma,
and the elderly--from health risks. The ``secondary'' standard is to
prevent unacceptable effects on the public welfare, e.g., damage to
crops and vegetation, buildings and property, and ecosystems.
The Tribe established primary and secondary air quality standards,
which will remain consistent with any future EPA updates to the NAAQS,
for the following air pollutants:
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Pollutant Primary/secondary Averaging time Level Form
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Carbon Monoxide (CO).......... primary.......... 8 hours............. 9 ppm............... Not to be
1-hour.............. 35 ppm.............. exceeded more
than once per
year.
Lead (Pb)..................... primary and Rolling 3 month 0.15 [micro]g/m\3\.. Not to be
secondary. period. exceeded.
Nitrogen Dioxide (NO2)........ primary.......... 1-hour.............. 100 ppb............. 98th percentile
of 1-hour daily
maximum
concentrations,
averaged over 3
years.
primary and 1 year.............. 53 ppb.............. Annual Mean.
secondary.
Ozone (O3).................... primary and 8 hours............. 0.070 ppm........... Annual fourth-
secondary. highest daily
maximum 8-hour
concentration,
avereaged over 3
years.
Particle Pollution (PM):
PM2.5..................... primary.......... 1 year.............. 12.0 [micro]g/m3.... Annual mean,
averaged over 3
years.
secondary........ 1 year.............. 15.0 [micro]g/m\3\.. Annual mean,
averaged over 3
years.
primary and 24 hours............ 35 [micro]g/m\3\.... 98th percentile,
secondary. averaged over 3
years.
PM10...................... primary and 24 hours............ 150 [micro]g/m3..... Not to be
secondary. exceeded more
than once per
year on average
over 3 years.
Sulfur Dioxide (SO2).......... primary.......... 1-hour.............. 75 ppb.............. 99th percentile
of 1-hour daily
maximum
concentrations,
averaged over 3
years.
secondary........ 3 hours............. 0.5 ppm............. Not to be
exceeded more
than once per
year.
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[[Page 11677]]
Accordingly, the EPA proposes to approve the Tribe's standards for
the pollutants listed in the table above, which are the same as the
NAAQS, for incorporation into the TIP.
2. Open Burning Program
The proposed TIP establishes a general prohibition on open burning
on the Reservation (see NCCAA Section 5.1), unless otherwise exempted
under NCCAA Section 5.2 (i.e., open burning for cultural, traditional,
or spiritual purposes or open burning activity that is less than four
feet in diameter and less than three feet in height) or is permitted
under NCCAA Section 5.7. The Tribe reserves the right to issue burn
bans, per NCCAA Section 5.6, and prohibits the burning of listed
materials in NCCAA Section 5.4 (unless authorized for training fires).
Permitting procedures for open burning are specified in NCCAA
Section 5.7. Permits are required for open burning activity on the
Reservation that is four or more feet in diameter or three or more feet
in height (unless exempted under NCCAA Section 5.2) prior to commencing
open burning activities. Permits may be issued only if the Air Quality
Administrator determines, in consultation with the appropriate Bureau
of Indian Affairs, Northern Cheyenne Agency personnel, that the
proposed open burning activity will not cause an adverse impact on
Reservation air quality or otherwise endanger public health or welfare
on the Reservation. Permits are also required to contain certain
minimum permit conditions, including setback requirements, equipment
and supply requirements, wind speed limitations, and extinguishment
conditions, etc. Violations of any applicable permit terms or
conditions are considered violations of the NCCAA. For all permitted
open burning activities, the permittee must notify the Air Quality
Administrator at least two working days prior to commencing an open
burning activity and must notify Northern Cheyenne Fire Protection not
less than one hour prior to commencing the open burning activity
(during regular business hours). Section 5.5 of the NCCAA specifies,
however, that no person shall commence or continue an open burning
activity within the Reservation that is determined by the Director of
the Tribe's DEPNR, in consultation with the Air Quality Administrator,
to cause or contribute to an exceedance of any Northern Cheyenne
Ambient Air Quality Standard. The EPA is proposing to approve the
conditions and procedures the Tribe has established for its open
burning permitting program.
3. Enforcement
Section 3 of the proposed TIP covers civil enforcement and appeals.
Under the TIP, the Tribe's Air Quality Administrator can issue
compliance orders for TIP violations. A compliance order can include
civil penalties up to $5,000 per day for each violation and an
assessment of costs incurred by DEPNR. The Air Quality Administrator
can file an action in Northern Cheyenne Tribal Court pursuant to the
Northern Cheyenne Rules of Civil Procedure to enforce a penalty order
or to seek preliminary injunctive relief against any person who is
suspected to have violated the TIP or a compliance order.
Alleged violators can challenge compliance orders by petitioning
the DEPNR Director for administrative review within 30 days of
receiving the order. The Director shall promptly review petitions for
administrative review and issue a written decision that upholds,
vacates, or modifies the order. Alleged violators can challenge a
decision by the Director by filing an action in Northern Cheyenne
Tribal Court pursuant to the Northern Cheyenne Rules of Civil
Procedure. The Tribal Court shall uphold any decision by the Director
unless it is arbitrary and capricious or contrary to law.
The EPA finds the Tribe has adequately established an enforcement
mechanism to carry out its regulations, and the EPA proposes to approve
it.
VI. What EPA action is being taken today?
The EPA is proposing approval of the Tribe's proposed TIP, which
contains programs to address ambient air quality standards for the
NAAQS pollutants, an open burning program, and enforcement provisions.
The public docket contains the Tribe's proposed TIP, TAS eligibility
determination, and enforcement MOA with the EPA.
VII. Incorporation by Reference
In this document, the EPA is proposing to include regulatory text
in an EPA final rule that includes incorporation by reference. In
accordance with the requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the TIP amendments described in Section VI of
this preamble. The EPA has made, and will continue to make, these
materials generally available through www.regulations.gov (refer to
docket EPA-R08-OAR-2020-0742).
VIII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP or
TIP submission that complies with the provisions of the Act and
applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
In reviewing TIP submissions, the EPA's role is to approve tribal
choices, provided that they meet the criteria of the CAA. Accordingly,
this proposed action merely proposes to approve tribal law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by tribal law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because this action is not significant under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Executive Order 13175, entitled ``Consultation and Coordination
with
[[Page 11678]]
Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires
the EPA to develop an accountable process to ensure ``meaningful and
timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' The EPA has concluded that
this proposed rule will have tribal implications in that it will have
substantial direct effects on the Northern Cheyenne Tribe. However, it
will neither impose substantial direct compliance costs on tribal
governments nor preempt tribal law. The EPA is proposing to approve the
TIP at the request of the Tribe. Tribal law will not be preempted as
the Tribe has already incorporated the TIP into Tribal law on December
7, 2016. The Tribe has applied for, and fully supports, the proposed
approval of the TIP. If it is approved, the TIP will become federally
enforceable.
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Indians, Indians--
law, Indians--tribal government, Intergovernmental relations, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 17, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-03826 Filed 2-25-21; 8:45 am]
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