# Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A02-4140 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** March 15, 2002 - **Citation:** 67 FR 11748 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 49 [Docket #: A-2000-25; FRL-7147-9] RIN 2012-AA01 Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) proposes to promulgate Federal Implementation Plans (FIPs) under the Clean Air Act (CAA) for Indian reservations in Idaho, Oregon, and Washington. The FIPs would include basic air quality regulations for the protection of communities in and adjacent to such Indian reservations. These rules would be implemented by EPA, or a delegated Tribal Authority, until replaced by Tribal Implementation Plans (TIPs). DATES: Comments must be received no later than June 13, 2002. ADDRESSES: Written comments should be addressed to: David Bray, Office of Air Quality (OAQ-107), U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101-1128. Please cite the administrative docket, #A-2000-25, upon which you are providing comment. Copies of all information supporting this action are available for public inspection and copying between 8:30 a.m. and 5:30 p.m. Eastern Standard Time at EPA's Central Docket Section, Office of Air and Radiation, Room 1500M (6102), 401 M Street, SW., Washington, DC 20460, and between 8:30 a.m. and 3:30 p.m. Pacific Standard Time at EPA Region 10, Office of Air Quality, 10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. A reasonable fee may be charged for copies. FOR FURTHER INFORMATION CONTACT: David Bray, Office of Air Quality (OAQ-107), U.S. EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101-1128, (206) 553-4253. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. Today's Action B. Areas and Sources Covered by the Rules C. Organization of the Rules D. Delegation II. Basis for Proposed Action A. EPA's Authority to Promulgate a FIP in Indian Country B. Relation to Tribal Authority Rule III. Summary of FIP Provisions A. Origin of the Rules B. Rule Summaries C. Rules Proposed for Specific Reservations D. Costs Associated with these Rules and Request for Comment IV. Request for Public Comments V. Administrative Requirements A. Executive Order 12866: Regulatory Planning and Review B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Paperwork Reduction Act E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks F. Executive Order 12875: Enhancing the Intergovernmental Partnership G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13211: Energy Effects I. National Technology Transfer and Advancement Act I. Background A. Today's Action EPA is proposing to establish Federal Implementation Plans (FIPs) under the Clean Air Act (CAA) for Indian reservations in Idaho, Oregon, and Washington. These rules, when promulgated, would be an important step in ensuring that basic air quality protection is in place to protect health and welfare on Indian reservations located in the Pacific Northwest. In Region 10, EPA has been working with the Tribes to identify the primary sources of air pollution emissions on Indian reservations, and evaluating the CAA statutory authorities available to regulate those sources. EPA's evaluations have identified concerns with unregulated particulate matter, such as from open burning for agricultural purposes. A significant number of industrial major stationary sources subject to Title V of the CAA are located on these Indian reservations. By means of these rules, EPA would impose regulatory requirements on industry and residents on reservations, similar to those imposed by the rules of State and local air agencies in the surrounding areas. EPA believes that it is appropriate to focus initially on the sources in Region 10 that have been identified as ones that may cause or contribute to prevalent air quality problems on reservations and in shared airsheds of the Pacific Northwest. Aside from existing national emissions standards and requirements, the FIPs proposed in this rule are the first building blocks under the CAA to address such emissions. In the Clean Air Act (42 U.S.C. 7401 to 7671q), Congress gave EPA broad authority to protect air resources throughout the nation, including the air resources on Indian reservations and other areas of Indian country. Based on the authority of section 301 of the CAA, EPA promulgated a final rule entitled “Indian Tribes: Air Quality Planning and Management,” on February 12, 1998, 63 FR 7254. The rule, generally referred to as the “Tribal Authority Rule” or “TAR,” establishes procedures for EPA determinations on Tribal eligibility applications for “treatment in the same manner as a State” (commonly referred to as “TAS”) under CAA authorities for Indian reservations and for non-reservation areas within a Tribe's jurisdiction. The U.S. Court of Appeals for the District of Columbia Circuit recently upheld the TAR in Arizona Public Service Co. v. EPA , 211 F.3d 1280 (D.C. Cir. 2000), cert. denied 121 S. Ct. 1600 (2001). In the TAR, EPA explained that it intends to use its authority under the CAA “to protect air quality throughout Indian country” 1 by directly implementing the CAA's requirements where Tribes have chosen not to develop or implement a CAA program. EPA wrote in the final rule at 40 CFR 49.11 that it would “promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality” for these areas. 1 “Indian country” is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdication 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 which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. In order to further this commitment to protect air quality, EPA is proposing rules for Indian reservations in Idaho, Oregon, and Washington. 2 In exercising its authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate such FIP provisions as are necessary or appropriate to protect air quality in Indian country, EPA has stated that it will carry out this authority in a prioritized way, beginning with sources that pose the greatest threat to public health and the environment. 64 FR at 8255. The FIPs proposed today are the first building block under the CAA to address the most prevalent gaps identified to date on reservations in the Pacific Northwest. EPA will continue to evaluate air quality conditions and the sources that cause or contribute to the degradation of air quality, and expects to promulgate additional FIP provisions, in consultation with Tribes, including Tribes that are developing TIPs. Thus, EPA views these FIP provisions as a first step towards establishing a complete plan for maintaining the NAAQS that, together with approved TIPs, would meet the goals of section 110(a) of the CAA. 2 EPA is not proposing at this time to establish rules for Indian country areas in Alaska, and will continue to evaluate the need and appropriateness of air quality rules there in consultation with the Federally recognized Tribes in Alaska. EPA is working with the U.S. Bureau of Indian Affairs (BIA) to complete the mapping of the Indian country in Alaska. Once the extent and specific locations of the Indian country is better known, air quality characterization and subsequent assessment of the needs can be initiated in consultation with the affected Tribal governments. EPA anticipates that conditions and needs in Alaska may warrant a different array of requirements and provisions than are included in these proposed FIPs. After consulting with the Tribes in Idaho, Oregon, and Washington, EPA Region 10 is concerned that there is currently a gap in air quality requirements in these areas under the CAA. While many Tribes in Region 10 are in the process of developing air quality management programs, EPA Region 10 has approved only one Tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation in Idaho, to assume certain CAA authorities. Furthermore, States generally lack the authority to regulate air quality in Indian country. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987); see also HRI v. EPA, 198 F.3d 1224, 1242 (10th Cir. 2000), Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998), cert. denied 525 U.S. 921 (1998). These proposed rules, as described below, are intended to fill the gap in current regulations until such time as individual Tribes develop and implement approved TIPs. As discussed in greater detail below, EPA believes that in light of the particular air quality issues generally present on reservations in the Pacific Northwest, it is appropriate to establish each of the air quality rules for each reservation that are proposed today. These rules would regulate activities, pollutants, and sources by supplementing the existing Federal regulatory programs such as the Prevention of Significant Deterioration (PSD), National Emission Standards for Hazardous Air Pollutants (NESHAP), and New Source Performance Standards (NSPS) programs. These proposed rules would provide additional regulatory tools for EPA to use in implementing the CAA on Indian reservations. EPA has adequate enforcement authority under section 113 of the CAA to ensure compliance with the requirements that are proposed. In Region 10, EPA is continuing to identify the primary sources of air pollution emissions on Indian reservations, and evaluating the CAA statutory authorities available to regulate those sources pending submission of a TIP by a Tribe and approval by EPA. This information is assisting EPA in determining, in consultation with affected Indian Tribes, the activities and sources of air pollution that threaten air resources. EPA believes that it is appropriate to focus its efforts to develop FIPs initially on the sources that may cause or contribute to air quality problems that have been identified. EPA's evaluations and information from affected Indian Tribes identified concerns with pollution from unregulated sources of particulate matter. Examples of categories of sources of air pollution not currently regulated include emissions from open burning and fugitive dust. Agricultural burning has been identified as a source of uncontrolled particulate matter that if not properly regulated can endanger people's health and safety, as well as cause other environmental impacts such as regional haze. EPA Region 10 is working at a regional level in partnership with States, Tribes, local governments, growers, and citizen groups to support and strengthen tools and programs for addressing particulate matter, including the development of appropriate regulatory controls in each jurisdiction. EPA also is identifying the industrial and commercial sources of emissions that are not fully regulated. There are at least 11 facilities on these reservations that meet the definition of major source, under the Federal Operating Permits provisions in Title V of the CAA. Most of these facilities are in the forest products industry, that can emit plumes of particulate matter at levels that should be controlled. Industrial facilities such as these also use fuels containing sulfur that can cause excessive concentrations of ground-level sulfur dioxide if not properly controlled. Regulating these sources is appropriate in order to protect air quality from the potential for significant deterioration caused by the release of particulate matter and sulfur dioxide. Particulate matter and sulfur dioxide are regulated by National Ambient Air Quality Standards (NAAQS) under section 109 of the CAA. A number of rules proposed today would control emissions of particulate matter and sulfur dioxide to the atmosphere as appropriate for the purpose of maintaining or attaining the NAAQS. Along with the protections these Federal air quality rules would provide, the rules can also assist Tribes in developing air quality management programs by using the Federal rules as templates in drafting TIPs. It is important to note that these proposed rules are analogous to, but different from, the types of rules generally approved by EPA into State Implementation Plans (SIPs). The rules proposed today represent an average program, and so are more stringent than some SIP rules and less stringent than others. However, while these would be Federal CAA rules, they would not change the minimum criteria in 40 CFR Part 51, the CAA, or the TAR for approval of rules in either a SIP or a TIP. 3 EPA encourages Tribes to develop individual TIPs and will work with Tribes seeking to replace these rules with TIPs. These regulations would apply until they are replaced by Tribal regulations in an approved TIP. 3 EPA has used the planning requirements applicable to States as a guide in developing these FIPs. EPA Region 10 has actively consulted with and encouraged Tribes to assist EPA in developing these proposed regulations to ensure that Tribal considerations are addressed. EPA Region 10 staff has worked with, and will continue to work with, individual Tribes to assess air quality problems, and develop, in consultation with the Tribes, Tribal or Federal strategies for addressing these problems. For example, EPA Region 10 has worked with Tribes to develop emission inventories and air monitoring studies where appropriate, to determine the nature of air quality problems, and to identify a range of potential control strategies. During the development of the rules proposed here, EPA Region 10 staff consulted with affected Tribes in a series of group and individual meetings that are described in detail below in Section V.G, which discusses compliance with Executive Order 13175: Consultation and Coordination with Indian Tribal Governments. B. Areas and Sources Covered by the Rules These proposed rules would apply to any person who owns or operates an air pollution source within the exterior boundaries of an Indian reservation in Idaho, Oregon, or Washington, as set forth in 40 CFR Part 49, Subpart M Implementation Plans for Tribes—Region X. Further, as discussed in the TAR at 63 FR 7257-58, EPA interprets the term “reservation” consistent with U.S. Supreme Court case law to include trust lands that have been validly set apart for the use of a Tribe even though the land has not been formally designated as a reservation. EPA is not proposing to establish rules for all of Indian country, e.g., these rules would not apply to allotment lands that are held in trust for individual Indians that are located outside the exterior boundaries of a reservation or for dependent Indian communities. Based on consultations, EPA is not aware of any sources on those types of land outside of reservations to which these rules need to apply. This proposed rulemaking is a step in addressing known air quality concerns on reservations. If in the future, EPA becomes aware of air quality concerns for Indian country outside of reservations, EPA may propose other requirements that are deemed necessary or appropriate. This proposal includes: (1) Rules of general applicability that would regulate emissions of particulate matter and sulfur dioxide from combustion and process sources, visible emissions and fugitive dust; and (2) additional proposed rules that would control particulate matter emissions from specific types of equipment used to burn wood wastes, sometimes known as “wigwam burners,” and certain wood product industry sources. The proposed rules would also regulate open burning, and allow the Regional Administrator to impose restrictions on emissions during periods of impaired air quality or when emissions from sources are detrimental to human health and welfare. Finally, the proposed rules would require registration of many stationary sources of air pollution and would provide the opportunity for stationary sources with low emission levels to obtain potential to emit limits in operating permits. The specific rules that would apply to sources on a particular reservation are specified in today's proposed rule, at 40 CFR part 49, Subpart M. EPA will decide whether a source or activity located on an Indian reservation is subject to the provisions of these rules as made applicable in the implementation plan for that reservation. Today's proposed rules include procedures for sources to obtain individual determinations from EPA as to whether they are subject to these regulatory requirements. A source that is uncertain regarding the applicability of a rule may submit a written request to EPA for an applicability determination. In response to a request for an applicability determination, EPA will issue a written determination stating whether the source or activity is subject to a particular Federal air quality rule. In most cases, determining whether the source or activity is on an Indian reservation will be straightforward and non-controversial. For example, in most cases EPA and the source will be able to easily determine whether a source is located within the exterior boundaries of a reservation, including Tribal trust lands. In the rarer, more complex factual cases, EPA will work with the U.S. Department of the Interior, Tribes, and stakeholders to assess the reservation status of the location. After EPA has reviewed the relevant materials, the Agency will send a letter to the source stating EPA's belief whether the source is located within the boundaries of a reservation. For sources or activities located on Indian reservations, the source or activity would be expected to comply with the applicable requirements of these FIPs. C. Organization of the Rules EPA has structured these proposed regulations consistent with the “modular” approach described in the TAR to allow for both variation among reservations and to facilitate the development and approval of TIPs to replace all or part of these Federal regulations. EPA is using this modular approach to propose a full set of regulations, and each regulation in today's proposal is effectively a “stand-alone” rule. Each FIP is tailored and is being proposed on a reservation-by-reservation basis. For example, the proposed regulation for particulate matter emissions from wood products industry sources would only be promulgated for reservations that have existing wood products industry sources or for those where such sources might be expected to locate. Similarly, the proposed regulation for forestry burning permits would only be promulgated for reservations with forestry lands where the use of fire as a forest management tool is prevalent. EPA expects that many Tribes will develop their own air quality programs. However, Tribes are not required to adopt and implement all CAA programs at once. Under section 49.7(c) of the TAR, Tribes that meet the eligibility criteria for TAS have the option of developing severable elements of a TIP and submitting those elements to EPA for approval under the CAA. The modular approach used in these proposed regulations would allow EPA to approve a Tribal rule covering a particular source type or activity and revoke the EPA regulation, while still leaving in place the EPA regulations for other sources and/or activities. For example, a Tribe may initially want to adopt and implement Tribal rules for open burning and rules for the registration of air pollution sources, while EPA would continue to regulate industrial emissions under the FIP for that reservation. This modular approach would allow for an easy incremental transition from Federal regulations to EPA-approved Tribal rules. While most of the rules in the FIPs constitute a “base program” that EPA is proposing to put in place in all reservations in Idaho, Oregon, and Washington, some of the proposed FIPs would include rules where specific needs exist or where EPA determines, in consultation with the relevant Tribe, that a more stringent provision than would otherwise apply is appropriate. These “additional rules” are being proposed only for certain reservations. For example, EPA is proposing rules specific to particular kinds of woodwaste burners and certain wood products industries that will require better controls for particulate matter emissions than the general limits for visible emissions and particulate matter. These regulations are proposed for reservations where such sources exist and where EPA determines, in consultation with the Tribe, that more stringent provisions are appropriate. The following table identifies the rules summarized below in section III.B that would be included in the “Base Program” and the “Additional Rules” that may be included as appropriate. Table 1.—Proposed Base Program and Additional Rules Rule # Title Base program Additional rules Section 49.123 General provisions X Section 49.124 Rule for limiting visible emissions X Section 49.125 Rule for limiting the emissions of particulate matter X Section 49.126 Rule for limiting fugitive particulate matter emissions X Section 49.127 Rule for woodwaste burners X Section 49.128 Rule for limiting particulate matter emissions from wood products industry sources X Section 49.129 Rule for limiting emissions of sulfur dioxide X Section 49.130 Rule for limiting sulfur in fuels X Section 49.131 General rule for open burning X Section 49.132 Rule for open burning permits X Section 49.133 Rule for agricultural burning permits X Section 49.134 Rule for forestry burning permits X Section 49.135 or Rule for emissions detrimental to human health and welfare or X Section 49.136 Tribal Alternative Rule X Rule for emissions detrimental to persons or property, cultural or traditional resources Section 49.137 Rule for air pollution episodes X Section 49.138 Rule for the registration of air pollution sources and the reporting of emissions X Section 49.139 Rule for non-Title V operating permits X The modular approach provides flexibility to promulgate provisions where EPA will have adequate resources to carry out the FIP, including situations where Tribes assist EPA in implementation of FIP provisions. For certain rules that are best administered at a local level, EPA is proposing to establish requirements for a reservation and to delegate to the affected Tribal government the authority to administer that particular program, as discussed below. A delegation agreement will authorize a Tribe, with Federal assistance, to administer the Federal program but refer unresolved noncompliance matters to EPA for Federal enforcement. This approach allows EPA to establish requirements tailored to local needs that can be effectively implemented through a partnership between EPA and the Tribe. With respect to the rule that would regulate emissions detrimental to persons and property, EPA is proposing two versions. One version of the detrimental emissions regulation, proposed as § 49.135, would allow EPA to address situations where emissions would be injurious to human health and welfare. The Tribal alternative rule, § 49.136, would provide additional protection for situations where emissions would unreasonably interfere with the enjoyment of life or property, or would damage unique Tribal cultural or traditional resources. The second, more inclusive regulation (§ 49.136) is proposed for reservations where EPA, based on a request from the relevant Tribe, has considered and determined that regulatory authority to address such situations is appropriate and will generally include agreements with the Tribe to assist EPA in implementing the programs. EPA requests comment on this proposed determination. EPA developed § 49.136 to address the Tribes' unique concern regarding the holistic concept of health and welfare, which was emphasized by Tribes during consultation. In this rulemaking, EPA is proposing that § 49.136 will apply only on two reservations, the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2. Section 49.135 will apply on all other reservations in Idaho, Oregon, and Washington. EPA is seeking comment on this proposed approach. If EPA does not finalize § 49.136, § 49.135 will be promulgated for the Nez Perce and Umatilla Indian Reservations. Finally, EPA is proposing three additional open burning permit programs: general open burning (§ 49.132), agricultural open burning (§ 49.133), and forestry open burning (§ 49.134). These rules differ from the general open burning rule proposed in § 49.131 by requiring that any person who conducts a regulated open burn to obtain and comply with a permit. These permit programs are proposed only for reservations where EPA, in consultation with the relevant Tribe, has determined that the programs are appropriate and will generally include delegations of authority from EPA to the Tribe for implementation of the Federal rules upon promulgation, as discussed below. D. Delegation The modular approach will allow Tribes that are building air quality programs to gain experience by assisting with implementation of the Federal rules before they decide to adopt their own rules and regulations. EPA recognizes that a Tribe may choose not to develop a Tribal air program under Tribal law for approval under the TAR, but may still like to assist EPA in implementing the Federal air quality requirements for its reservation and to build its capacity in managing an air quality program. The rule proposed here at § 49.122 provides Tribal governments the alternative of seeking delegation from EPA of the authority to administer all or some of the Federal rules that have been promulgated for their reservation. These rules would allow EPA to delegate distinct and severable Federal regulations to a Tribe for implementation, without requiring a Tribe to take on all aspects of the Federal air regulations. For example, if a Tribe wished to implement the open burning permit program, or run the source registration program, EPA could delegate responsibility to the Tribe for just those regulations. The process EPA would follow to delegate the administration of a Federal program to a Tribal government is similar to the process EPA follows to delegate programs to State governments. As part of the process for delegating the authority to administer one or more of the rules, the Tribe and EPA would enter into an agreement that specifies how the governments would work together for the effective implementation of the particular CAA program(s) at issue on that reservation. The delegation from EPA to a Tribe to implement a specific Federal air rule proposed in these rules is to be distinguished from EPA's interpretation that the CAA is a delegation of Federal authority from Congress to Tribes, as described in the TAR at 63 FR 7254-7259. It is EPA's position that the CAA TAS provision constitutes a statutory delegation of authority to eligible Tribes over their reservations. As described above, the TAR established how EPA can approve Tribal eligibility applications for a Tribe to operate a CAA program under Tribal law. When EPA approves a Tribal eligibility application and approves a TIP, the approved Tribe will manage the approved air quality program under Tribal law, and the approved Tribal program is Federally enforceable. In contrast, the delegation approach proposed in these rules provides for EPA to administratively delegate its own Federal authority to a qualified Tribe to implement specified Federal rules. EPA has well-established processes for delegating its Federal authority to States for administering Federal rules under the CAA, such as for conducting new source review under 40 CFR part 52, at 40 CFR 52.21(u); and for issuing Federal operating permits under 40 CFR part 71, at 40 CFR 71.4(j). With delegated Federal programs, the Federal requirement administered by the delegated Tribe is subject to enforcement by EPA, not the Tribe, under Federal law. EPA believes that the modular approach will provide the maximum flexibility for EPA and Tribes to work in partnership to ensure that the goals and objectives of the CAA will be met on Indian reservations and to make real the principles set out in the TAR. It will allow EPA and Tribes to jointly manage air quality on Indian reservations through a combination of TIP and FIP elements, and delegations to Tribes of FIP elements. Under this modular approach, Tribes may adopt and submit severable elements of TIPs that replace elements of FIPs while leaving in place FIP provisions that Tribes are not yet willing or able to take on. II. Basis for Proposed Action A. EPA's Authority To Promulgate a FIP in Indian Country EPA's conclusion that CAA jurisdiction over Indian country generally lies with EPA and Federally recognized Indian Tribes leads to the conclusion that a regulatory gap exists with regard to air pollution sources there. EPA is proposing to take an initial step towards remedying this gap with a FIP for each Indian reservation in Idaho, Oregon, and Washington. These FIPs will establish new Federal requirements where no general air pollution control program other than nationally applicable rules is currently in effect. As described above, the CAA Amendments of 1990 greatly expanded the role of Indian Tribes in implementing the provisions of the CAA in Indian country. Section 301(d) of the CAA authorizes EPA to issue regulations specifying the provisions of the CAA for which Indian Tribes may be treated in the same manner as States. See CAA sections 301(d)(1) and (2). Based on that authority, EPA promulgated the TAR. In the preamble to the proposed and final TAR, EPA discusses generally the legal basis under the CAA by which EPA and Tribes are authorized to regulate sources of air pollution in Indian country. EPA concluded that the CAA constitutes a statutory delegation of Federal authority to eligible Indian Tribes over all sources on their reservations. Under the CAA, Tribes are allowed to develop air programs covering their reservations and non-reservation areas within their jurisdiction for submission to EPA for approval in the same manner as States. 63 FR 7254-7259; 59 FR 43958-43960. EPA also concluded that the CAA authorizes EPA to protect air quality throughout Indian country, including on fee lands, until a Tribe is approved for TAS and Tribal programs are approved. See 63 FR 7262; 59 FR 43960-43961 (citing to CAA sections 101(b)(1), 301(a), and 301(d)); see also Federal Operating Permits Program, Final Rule, 64 FR 8251-8254. EPA decided that in areas of Indian country where no Tribal program has been explicitly approved by EPA, a gap exists in air quality requirements under the CAA that EPA is authorized to fill. In fact, in promulgating the TAR, EPA specifically stated that, pursuant to the discretionary authority explicitly granted to EPA under sections 301(a) and 301(d)(4) of the CAA, EPA: shall promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections 301(a) and 301(d)(4), if a Tribe does not submit a Tribal implementation plan meeting the completeness criteria of 40 CFR Part 51, Appendix V, or does not receive EPA approval of a submitted Tribal implementation plan. 63 FR 7273 (codified at 40 CFR 49.11(a)). 4 4 In the preamble to the final TAR, EPA explained that it believed it was inappropriate to treat Tribes in the same manner as States with respect to section 110(c) of the CAA, that directs EPA to promulgate a FIP within two years after EPA finds a State has failed to submit a complete State plan or within two years after EPA disapproval of a State plan. Although EPA is not required to promulgate a FIP within the two-year period for Tribes, EPA promulgated 40 CFR 49.11(a) to clarify that EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected Tribal areas within a reasonable time. See 63 FR 7264-7265. It is EPA's policy to aid Tribes in developing comprehensive and effective air quality management programs by providing technical and other assistance to them. EPA recognizes, however, that just as it required many years to develop the current State and Federal programs to cover State areas, it will also require time to develop Tribal and Federal programs to cover reservations and other areas of Indian country. 59 FR 43961. Many of the Tribal governments in Idaho, Oregon, and Washington have expressed a strong interest in seeking authority under the TAR to regulate sources of air pollution located on their reservations and in non-reservation areas under Tribal jurisdiction pursuant to the CAA. Based on discussions with the Tribes, however, EPA believes that it will be some time before most Tribes will be ready to seek authority under the TAR to assume CAA planning and regulatory responsibilities and that, when they do, the Tribes are likely to build their capacity and seek authority for the various CAA programs over time, rather than all at once. Through government-to-government consultation between EPA and Tribal governments, the Tribes have advised EPA that they support EPA's efforts to impose such controls on Indian reservation air pollution sources as are necessary or appropriate to protect air quality in the interim. Therefore, in these proposed FIPs, EPA is exercising its authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate FIPs in order to remedy an existing regulatory gap under the CAA with respect to Indian reservations located in the States of Idaho, Oregon, and Washington. Although many facilities in these areas have historically followed State, regional, and local government air quality programs, with only one exception EPA has never approved those governments to exercise regulatory authority under the CAA on any Indian reservations. 5 It is EPA's position that absent an explicit finding of jurisdiction and approval in Indian country, those governments lack authority under the CAA over the sources or their owners or operators for compliance or enforcement purposes. Given the longstanding air quality concerns in some areas and the need to establish requirements in all areas to maintain CAA standards, EPA believes that the proposed FIP provisions are appropriate to protect air quality on the identified reservations. 5 For purposes of approving the Washington Department of Ecology (WDOE) operating permits program under 40 CFR Part 70, EPA explicitly found that WDOE demonstrated that the Washington Indian Puyallup Land Claims Settlement Act, 25 U.S.C. 1773, gives explicit authority to State and local governments to administer their environmental laws on all non-trust lands within the 1873 Survey Area of the Puyallup Reservation in Tacoma, Washington. B. Relation to Tribal Authority Rule The TAR provides the framework for Tribes to obtain authority to administer Federally-approved and Federally-enforceable programs under the CAA. See 59 FR 43956, August 25, 1994 (proposed rule) and 63 FR 7254, February 12, 1998 (final rule). Thus, each Federally recognized Indian Tribe now has the option of assuming responsibility for the development and implementation of Federally-enforceable air quality programs under the CAA by seeking EPA approval of a Tribal air program established under Tribal law, i.e., a TIP. Until a Federally-approved implementation plan that covers a source is in place, however, EPA has the authority to regulate the source under the CAA. The regulations proposed here also offer another alternative. Specifically, Tribes in Idaho, Oregon, or Washington may seek delegation from EPA to assist EPA in implementing a Federal regulation (FIP). III. Summary of FIP Provisions A. Origin of the Rules EPA's intention is to promulgate Federal regulations that reflect an important initial step to fill the “regulatory gap” on Indian reservations in Idaho, Oregon, and Washington. As described above, EPA has been evaluating, in consultation with affected Indian Tribes, the activities and sources of air pollution that threaten air resources. EPA believes it is appropriate to focus its efforts initially on developing FIPs for the most prevalent sources that cause or contribute to identified air quality problems. However, EPA does not intend, nor does it expect, these gap-filling regulations to impose significantly different regulatory burdens upon industry or residents within reservations than those imposed by the rules of State and local air agencies in the surrounding areas. This approach is intended to formally “level the playing field”. In other words, EPA intends that people living within reservation boundaries receive equivalent air quality protection, and that emissions from sources located within reservations are controlled to levels similar to those of sources located outside the reservations. To do this, EPA Region 10 first determined what types of air pollution sources and pollutant-emitting activities were most prevalent on Indian reservations in Idaho, Oregon, and Washington. Then EPA Region 10 reviewed the State and local rules from air pollution agencies throughout the western United States that are included in SIPs that EPA has approved for those types of sources and activities. The gap-filling rules proposed here are generally based upon the aspects of these State and local rules most relevant to the air polluting activities on reservations in the Pacific Northwest, and follow a level of control of a typical air quality control program. The proposed regulations are not as restrictive as the most stringent State and local rules for the same class of sources or activities; likewise, they are not as lenient as the least stringent of the State and local rules. Nor do the proposed regulations look like State or local rules because they use the Federal regulatory structure and are written in a “plain language” format in accordance with the Plain Language Executive Memorandum, dated June 1, 1998. EPA invites your comments on ways to make these proposed rules easier to understand. Included in the docket for this proposed rulemaking are copies of all the State and local rules that EPA considered in this process, as well as a technical support document with summary tables showing the State and local agency levels of control as compared with the proposed regulations and a description of why EPA believes the proposed rules are appropriate. Each of the rules proposed as part of the Base Program to be applicable on all reservations in Idaho, Oregon and Washington either addresses particular sources, activities or pollutants identified by EPA as the most prevalent and in need of regional regulation or implements an important structural aspect of the CAA regulatory scheme for Indian reservations. A number of the Base Program rules are proposed in order to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA (see § 49.124 Rule limiting visible emissions; § 49.125 Rule for limiting the emissions of particulate matter; § 49.126 Rule for limiting fugitive particulate matter emissions; and § 49.129 General rule for open burning). Two Base Program rules would protect air quality from the potential for significant deterioration caused by the release of sulfur dioxide, which is regulated by a NAAQS under section 109 of the CAA. These rules would limit the amount of sulfur dioxide emitted to the atmosphere from certain air pollution sources in order to control ground-level concentrations of sulfur dioxide (see § 49.130 Rule for limiting emissions of sulfur dioxide and § 49.131 Rule for limiting sulfur in fuels). The Base Program would also include a number of provisions to establish the infrastructure of a CAA regulatory program. Provisions at § 49.122 describe how EPA would process delegation requests from a Tribe; § 49.123 would define the terms that are used throughout the FIPs; § 49.135 would establish a process for EPA to limit emissions that are detrimental to human health and welfare; § 49.137 would establish the measures EPA could take to address excessive buildup of certain air pollutants during periods of stagnant air; § 49.138 would provide for the registration of air pollution sources and reporting of emissions so that EPA can maintain a current and accurate record of air pollution sources within an Indian reservation; and § 49.139 would set up a permitting program for non-Title V sources that would establish federally-enforceable requirements. Further, EPA is proposing certain Additional Rules to be applicable on specified reservations where EPA has determined, in consultation with the relevant Tribe, that such additional regulatory measures are appropriate. During the course of its consultation with Tribes and analysis of regulatory needs, EPA attempted to identify instances where specific sources or pollution control needs beyond those addressed in the Base Program exist on particular reservations. For example, certain types of wood products industries, or certain practices of agricultural or forestry burning, may be prevalent on particular reservations and may be important contributors to air pollution concerns. In order to address these concerns, EPA has developed the current set of Additional Rules. As an initial step, EPA is proposing to promulgate some or all of these rules for those reservations where relevant sources have been identified as prevalent and where particular Tribes have indicated an interest in the additional regulation. For example, at the request of specific Tribes, EPA considered and is now proposing to promulgate a rule that would provide additional protections against emissions detrimental to their unique Tribal cultural or traditional resources. EPA considers this approach an appropriate first step in prioritizing its efforts to address these concerns consistent with CAA responsibilities. EPA anticipates that relevant Tribes may choose to assist in the implementation of the Additional Rules through the delegation process described above. EPA is continuing to consult with Tribes regarding sources of air pollution and air regulatory needs on their reservations and may propose some or all of the Additional Rules, or may propose further additional rules, for reservations as needs and priorities are identified. As described in section I.C, the current package of Additional Rules includes § 49.127 Rule for woodwaste burners; § 49.128 Rule for limiting particulate matter emissions from wood products industry sources; § 49.132 Rule for open burning permits, § 49.133 Rule for agricultural burning permits, § 49.134 Rule for forestry burning permits; and § 49.136 Rule for emissions detrimental to persons or property, cultural or traditional resources. With this proposal, EPA is seeking comment on these Additional Rules, whether the criteria EPA used for selecting the Additional Rules are appropriate, and whether EPA has appropriately applied those criteria in this proposal. In developing these regulations EPA also had two other objectives in mind, in addition to filling the regulatory gap. First, EPA is proposing only those regulations that it believes it has the resources to implement and enforce. To the extent practicable, these regulations minimize the implementation burdens upon EPA and the regulated community while establishing requirements that are unambiguous and enforceable. Second, EPA anticipates that these regulations can serve as models for Tribes as they develop their own air quality programs. To that end, the regulations are designed so they can be implemented by a small air pollution agency, and can be readily delegated to a Tribe for implementation. B. Rule Summaries These proposed rules would establish emission limitations and other requirements for air pollution sources located within Indian reservations in Idaho, Oregon, and Washington to ensure a basic level of air pollution control that protects public health and welfare. The following paragraphs summarize each of the proposed rules. The actual rule requirements being proposed are set forth in 40 CFR part 49, subpart C. Section 49.122—Delegation of authority to a Tribe. This section would provide a mechanism for delegating to a Tribe, for administration, all or a portion of the FIP rules that apply within a reservation. It sets out the process a Tribe must follow to request delegation, how that delegation will be accomplished, and how the public and regulated sources will be informed of the delegation. The Regional Administrator will not delegate authority to a Tribe for areas for which EPA believes the Indian reservation status is in question. This section would not affect the requirements established under the TAR for Tribal applications to administer EPA-approved Tribal CAA programs or requirements for delegation of other EPA air programs such as Part 71 operating permits or PSD permits under 40 CFR 52.21. Section 49.123—General provisions. This section includes definitions of the terms used in these rules as well as general provisions regarding requirements for emission testing, monitoring, recordkeeping, reporting, the use of credible evidence in compliance certifications and for establishing violations, and the incorporation by reference of the American Society for Testing and Materials Methods referenced in this rulemaking. Section 49.124—Visible emissions. Section 49.124 would restrict visible emissions from air pollution sources to 20% opacity, averaged over 6 consecutive minutes, as measured by EPA Method 9. This rule would not apply to certain sources, such as: Open burning; agricultural activities; non-commercial smoke houses; sweat houses or lodges; smudge pots; furnaces and boilers used exclusively to heat residential buildings with four or fewer units; fugitive dust from public roads owned or maintained by any Federal, Tribal, State or local government; and emissions from fuel combustion in mobile sources. The visible emissions from an oil-fired boiler or solid fuel-fired boiler that continuously measures opacity with a continuous opacity monitoring system (COMS) may exceed the 20% opacity limit during start-up, soot blowing, and grate cleaning for a single period of up to 15 minutes in any 8 consecutive hours, but must not exceed 60% opacity at any time. All of the State and local air agency rules that EPA reviewed contain a 20% opacity limit. Most of these visible emissions rules allow a 3-minute exception over a 60-minute period. However, EPA decided to use the method with an average opacity over a 6-minute interval to be consistent with the only Federally promulgated opacity measurement method, which is EPA Method 9, found at 40 CFR Part 60, Appendix A. This method is used to determine compliance with Federal New Source Performance Standards for numerous categories of industrial sources. This rule does not require any person to conduct Method 9 opacity readings or to install a COMS unless specifically required by the Regional Administrator in an information request pursuant to section 114 of the Act, a permit to construct, or permit to operate. Section 49.125—Particulate matter. Particulate matter emissions from combustion (except for wood-fired boilers) and process sources would be limited to an average of 0.23 grams per dry standard cubic meter (0.1 grains per dry standard cubic foot), corrected to 7% oxygen (for combustion sources), during any 3-hour period. Particulate matter emissions from wood-fired boilers would be limited to an average of 0.46 grams per dry standard cubic meter (0.2 grains per dry standard cubic foot), corrected to 7% oxygen, during any 3-hour period. Woodwaste burners, furnaces, and boilers used exclusively for space heating with a rated heat input capacity of less than 400,000 British thermal units (Btu) per hour, non-commercial smoke houses, sweat houses or lodges, and mobile sources would be exempt from this rule. For combustion sources and wood-fired boilers, the particulate matter limit in this rule is the same as the limit in most of the State and local agency air rules that EPA reviewed. For process sources, many State and local air agencies employ process weight rate tables in their rules to limit particulate matter. EPA is proposing to use a concentration limit rather than a process weight rate table for this rule to be consistent with the EPA method for measuring particulate matter, which is EPA Method 5, found at 40 CFR Part 60, Appendix A. The particulate matter limit for process sources in this rule equals the control of all but one of the concentration-based rules that EPA reviewed. This rule does not require any person to conduct a Method 5 source test unless specifically required by the Regional Administrator in an information request pursuant to section 114 of the Act, a permit to construct, or permit to operate. Section 49.126—Fugitive particulate matter. The owner or operator of any source of fugitive particulate matter emissions would be required to take all reasonable precautions to prevent fugitive particulate matter emissions and to maintain and operate the source to minimize these emissions. A person subject to this rule would be required to periodically survey the air pollution source to determine if there are sources of fugitive particulate matter emissions, determine and document in a written plan the reasonable precautions that would be taken to prevent fugitive particulate matter emissions, and then implement the plan. This rule would not apply to activities associated with single-family residences or residential buildings with four or fewer dwelling units, agricultural activities, or public roads owned or maintained by any Federal, Tribal, State, or local government. All but one of the State and local air agency rules that EPA reviewed have rules for controlling fugitive particulate matter. All of these rules contain reasonable precautions provisions similar to the ones in § 49.126. A few rules control fugitive emissions beyond reasonable precautions, but these rules are primarily for nonattainment areas so EPA believes they are not appropriate here because the reservations at issue are generally not designated nonattainment for PM10. Section 49.127—Woodwaste burners. Section 49.127 would phase out the operation of woodwaste burners (commonly known as wigwam or teepee burners). In the interim, visible emissions from a woodwaste burner would not be allowed to exceed 20% opacity, averaged over 6 consecutive minutes, as measured by EPA Method 9, and only wood waste generated onsite could be burned or disposed of in the woodwaste burner. The owner or operator would be required to submit a plan for shutting down the woodwaste burner to EPA within 180 days after the effective date of these rules and to shut down and dismantle the woodwaste burner by no later than 2 years after the effective date of these rules. Sources could apply to EPA for an extension of the 2-year deadline if there is no reasonably available alternative method of disposal for the wood waste. EPA recognizes that on some reservations particulate matter from woodwaste burners can contribute to air quality deterioration. This section would be promulgated in Part 49 Subpart M on reservations only where EPA finds, in consultation with the relevant Tribe, that it is appropriate to establish this requirement in order to control air pollution. This section is designed to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. This rule would limit the amount of particulate matter emitted to the atmosphere. EPA will base the determination of whether this rule is appropriate for a particular reservation on a number of factors, including the prevalence of these sources on the reservation, the significance of the resulting pollution on air quality in the area, and the absence of Tribal laws to control the pollution. In this rulemaking, EPA is proposing that § 49.127 will apply only on the Nez Perce Reservation and the Colville Indian Reservation, as shown in Table 2. Most woodwaste burners under programs of State and local air agencies have already been shut down. All but one of the State and local air agency rules that control the woodwaste burners that still exist have a 20% opacity limit. Most of these rules use an opacity measurement method with a 3-minute exception over a 60-minute period. However, EPA is proposing use of the method with an average opacity over a 6-minute interval to be consistent with the only Federally promulgated opacity measurement method, which is EPA Method 9, found at 40 CFR Part 60, Appendix A. This method is used to determine compliance with Federal New Source Performance Standards for numerous categories of industrial sources. This rule does not require any person to conduct Method 9 opacity readings unless specifically required by the Regional Administrator in an information request pursuant to section 114 of the Act, a permit to construct, or permit to operate. Section 49.128—Particulate matter emissions from wood products industry sources. Section 49.128 would apply to any person who owns or operates any of the following wood products industry sources: veneer manufacturing operations, plywood manufacturing operations, particleboard manufacturing operations, or hardboard manufacturing operations. This section would impose limits on the amount of particulate matter that could be emitted from such sources, in addition to the particulate matter limits for combustion and process sources in § 49.125. The reference method for determining compliance with the particulate matter limits is EPA Method 202, found at 40 CFR part 51, Appendix M. This rule does not require any person to conduct a Method 202 source test unless specifically required by the Regional Administrator in an information request pursuant to section 114 of the Act, a permit to construct, or permit to operate. In Part 49 Subpart M, EPA is proposing this requirement on reservations where EPA finds, in consultation with the relevant Tribe, that it is appropriate to establish this requirement in order to control air pollution. This section is appropriate to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. This rule would limit the amount of particulate matter emitted to the atmosphere from those specific wood products industry sources. EPA will base this determination on a number of factors, including the prevalence of these sources on the reservation, the significance of the resulting pollution on air quality in the area, and the absence of Tribal laws to control the pollution. In this rulemaking, EPA is proposing that § 49.128 will apply only on the Nez Perce Reservation and the Colville Indian Reservation, as shown in Table 2. One State has both State-wide rules and area-specific rules to control particulate matter emissions from the wood products industry. The limits that EPA is proposing in this rule closely resembles the area-specific rules for that State. Section 49.129—Sulfur dioxide. This rule would restrict sulfur dioxide emissions from combustion and process sources to no more than an average of 500 parts per million by volume, on a dry basis, and corrected to 7% oxygen (for combustion sources), during any 3-hour period. Furnaces and boilers used exclusively for space heating with a rated heat input capacity of less than 400,000 Btu per hour and mobile sources would be exempt from this rule. This rule is appropriate to protect air quality from the potential for significant deterioration caused by the release of sulfur dioxide, which is regulated by a NAAQS under section 109 of the CAA. This section would limit the amount of sulfur dioxide emitted to the atmosphere from certain air pollution sources in order to control ground-level concentrations of sulfur dioxide. All of the concentration-based rules that EPA reviewed have one of two sulfur dioxide concentration limits: 500 ppm averaged over a 3-hour period or 1,000 ppm average over a 1-hour period. EPA is proposing to use the 500 ppm, 3-hour average limit because it does a better job of accounting for the short-term variability in process emissions and in the sulfur content of fuels. The reference methods for determining compliance with the SO2 limits are EPA Methods 6, 6A, 6B, and 6C as specified in the applicability section of each Method. These methods are found at 40 CFR 60, Appendix A. This rule does not require any person to conduct Method 6, 6A, 6B, or 6C source tests or to install a continuous emissions monitoring system (CEMS) unless specifically required by the Regional Administrator in an information request pursuant to section 114 of the Act, a permit to construct, or permit to operate. Section 49.130—Sulfur content of fuels. This section would apply to any person who sells, distributes, uses, or makes available for use, any fuel oil, coal, solid fuel, or gaseous fuel on Indian reservations. This rule restricts the sulfur content of the previously listed types of fuels. Fuels used exclusively for mobile sources, such as automotive or marine diesel fuel, would be exempt from this rule. A person subject to this rule would be required to demonstrate compliance through recordkeeping and/or continuous monitoring or sampling. Owners or occupants of a single-family residence and the owners or managers of a residential building with four or fewer units are not subject to the sulfur content recordkeeping requirements if the furnace fuel is purchased from a licensed fuel distributor. This section is appropriate to protect air quality from the potential for significant deterioration caused by the release of sulfur dioxide, which is regulated by a NAAQS under section 109 of the CAA. Fuel combustion sources can emit sulfur dioxide. This section would limit the amount of sulfur in fuels to control the amount of sulfur dioxide emitted to the atmosphere and minimize ground-level concentrations of sulfur dioxide. The majority of the State and local air agency rules that EPA reviewed contain the same level of control that EPA is proposing for the sulfur content in each type of fuel. Section 49.131—Open burning. This rule would prohibit certain materials from being open burned, such as: Garbage, dead animals, junked motor vehicles, tires or rubber materials, plastics, asphalt or composition roofing, tar, tarpaper, petroleum products, paints, paper or cardboard other than what is necessary to start a fire, lumber or timbers treated with preservatives, construction debris or demolition waste, pesticides, herbicides, hazardous wastes, or any material other than natural vegetation that normally emits dense smoke or noxious fumes when burned (see rule for a complete list). The following situations would be exempt from certain provisions of this rule: Fires set for cultural or traditional purposes, including fires within structures such as sweat houses or lodges; fires set for recreational purposes, provided that no prohibited materials are burned; the burning of combustible household waste in burn barrels at single-family residences or residential buildings with four or fewer dwelling units; with permission from the Regional Administrator, open outdoor fires used by qualified personnel to train firefighters in the methods of fire suppression and fire fighting techniques, provided that training fires are not allowed to smolder after the training session has terminated; with permission from the Regional Administrator, one open outdoor fire each year to dispose of fireworks and associated packaging materials; and open burning for the disposal of diseased animals or infested material by order of a public health official. All open burning, except for cultural and traditional purposes, would be prohibited under the following circumstances: The Regional Administrator declares a burn ban due to deteriorating air quality; the National Weather Service issues an air stagnation advisory; or the Regional Administrator declares an air pollution alert, air pollution warning, or air pollution emergency. This section also describes the practices a person subject to this rule must follow in conducting an open burn. This section is appropriate to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. This rule would limit the amount of particulate matter emitted to the atmosphere. All of the State and local air agency rules that EPA examined have an open burning rule with procedures, conditions, prohibitions and exemptions similar to those in the rule that EPA is proposing. Section 49.132—Open burning permits. Any person who conducts an open burn would be required to: (1) Apply for and obtain a permit for each open burn; (2) have the permit available on site during the open burn; (3) conduct the open burn in accordance with the terms and conditions of the permit; and (4) comply with the General rule for open burning (§ 49.131) or the EPA-approved Tribal open burning rules in a TIP, as applicable. The following activities are exempt: Fires set for cultural or traditional purposes, including fires within structures such as sweat houses or lodges; fires for recreational purposes, provided that no prohibited materials are burned; forestry or silvicultural burning; agricultural burning; and the burning of combustible household waste in burn barrels at single family residences or residential buildings with four or fewer dwelling units. The Regional Administrator shall take into consideration the size, duration, and location of the proposed open burn, the current and projected air quality conditions, forecasted meteorological conditions, and other scheduled burning activities in the surrounding area in determining whether to issue the permit. This section is designed to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. EPA is proposing to promulgate this rule only for reservations where EPA finds, in consultation with the relevant Tribe, that the rule is appropriate. EPA will base the determination of whether this rule is appropriate for a particular reservation on a number of factors, including the prevalence of these activities on the reservation, the significance of the resulting pollution on air quality in the area and adjacent airsheds, and the absence of Tribal laws to control the pollution. EPA anticipates that Tribes will seek EPA delegation to implement this rule on their reservation. In this rulemaking, EPA is proposing that § 49.132 will apply only on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2. Most of the State and local air agency rules that EPA reviewed have a permitting program for open burning with procedures, conditions, prohibitions and exemptions similar to those in the rule that EPA is proposing. Section 49.133—Agricultural burning permits. Any person who conducts an agricultural burn would be required to: (1) Apply for and obtain a permit for each agricultural burn; (2) have the permit available on site during the agricultural burn; (3) conduct the burn in accordance with the terms and conditions of the permit; and (4) comply with the General rule for open burning (§ 49.131) or the EPA-approved Tribal open burning rules in a TIP, as applicable. This section is designed to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. This rule would limit the amount of particulate matter emitted to the atmosphere from unregulated agricultural burning activities. EPA is proposing to promulgate this rule only for reservations where EPA finds, in consultation with the relevant Tribe, that the rule is appropriate. EPA will base the determination of whether this rule is appropriate for a particular reservation on a number of factors, including the prevalence of agricultural burning activities on the reservation, the significance of the resulting pollution on air quality in the area and adjacent airsheds, and the absence of Tribal laws to control the pollution. EPA anticipates that Tribes will seek EPA delegation to implement this rule on their reservation. In this rulemaking, EPA is proposing that § 49.133 will apply only on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2. Two of the States, three local air agencies, and one Tribe in Region 10 have established a permitting program for agricultural burning with procedures, conditions, prohibitions, and exemptions similar to those in the rule that EPA is proposing. Section 49.134—Forestry burning permits. Any person who conducts a forestry burn would be required to: (1) Apply for and obtain a permit for each forestry burn; (2) have the permit available on site during the forestry burn; (3) conduct the burn in accordance with the terms and conditions of the permit; and (4) comply with the General rule for open burning (§ 49.131) or the EPA-approved Tribal open burning rules in a TIP, as applicable. This section is designed to protect air quality from the potential for significant deterioration caused by the release of particulate matter, which is regulated by a NAAQS under section 109 of the CAA. This rule would limit the amount of particulate matter emitted to the atmosphere from unregulated forestry burning activities. EPA is proposing to promulgate this rule only for reservations where EPA finds, in consultation with the relevant Tribe, that the rule is appropriate. EPA will base the determination of whether this rule is appropriate for a particular reservation on a number of factors, including the prevalence of forestry burning activities on the reservation, the significance of the resulting pollution on air quality in the area and adjacent airsheds, and the absence of Tribal laws to control the pollution. This rule would protect air quality on those reservations where forestry burning can contribute to air quality deterioration. EPA anticipates that Tribes will seek EPA delegation to implement this rule on their reservation. In this rulemaking, EPA is proposing that § 49.134 will apply only on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2. Three of the States in Region 10 have established a permitting program for forestry burning with procedures, conditions, prohibitions, and exemptions similar to those in the rule that EPA is proposing. Sections 49.135 and 49.136—Emissions detrimental to persons or property. These are two alternatives to regulate emissions that are detrimental, and EPA would promulgate one of the rules for each reservation. For both §§ 49.135 and 49.136, an owner or operator of an air pollution source would not be allowed to cause or allow the emission of any air pollutants, in sufficient quantities and of such characteristics and duration, that the Regional Administrator determines is, or would likely be, injurious to human health and welfare. The Tribal alternative rule § 49.136 would include the same requirements as § 49.135, and also authorize controls when the Regional Administrator determines an emission does, or is likely to, unreasonably interfere with the enjoyment of life or property or damage unique Tribal cultural or traditional resources. If the Regional Administrator makes such a determination under § 49.135 or § 49.136, EPA is proposing that the Regional Administrator would be able to require the source to install air pollution controls or to take reasonable precautions to reduce or prevent the emissions. Section 49.136 would provide additional protection of unique Tribal resources, and would be promulgated on reservations only where EPA finds, in consultation with the relevant Tribe, that the rule is appropriate. EPA will base this determination on a number of factors, including the prevalence of activities on the reservation which can affect unique Tribal cultural or traditional resources, the significance of the resulting pollution on those resources, and the absence of Tribal laws to control the pollution. In this rulemaking, EPA is proposing that the Tribal alternative rule § 49.136 will apply only on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2. Most State and local air agency rules incorporate similar provisions prohibiting emissions detrimental to persons or property. Section 49.137—Air pollution episodes. Under § 49.137, the Regional Administrator could issue warnings about air quality that would apply to any person who owns or operates an air pollution source on Indian reservations. An air pollution alert, air pollution warning, or air pollution emergency could be declared by the Regional Administrator whenever it is determined that the accumulation of air pollutants in any place is attaining, or has attained, levels that could lead to a threat to human health. These announcements would be broadcast on local television and radio stations in the affected area and posted on their websites. Announcements will also be posted on the EPA Region 10 website and, where possible, on the websites of Tribes within the affected area. These announcements will indicate that air pollution levels exist that could potentially be harmful to human health, describe actions that people can take to reduce exposure, request voluntary actions to reduce emissions from sources of air pollutants, and indicate that a ban on open burning is in effect. Voluntary or mandatory curtailment of emissions could be declared by the Regional Administrator. Most State and local air agencies have rules for air pollution episodes with procedures and conditions similar to those in the rule that EPA is proposing. Section 110(a)(2)(G) of the Clean Air Act and 40 CFR part 51, Subpart H of EPA's regulations require agencies to have pre-planned procedures to follow in the event of an air pollution episode as well as adequate authorities to require sources to reduce emissions in order to protect public health. Section 49.137 is consistent with EPA's requirements for State and local agencies as set forth in 40 CFR part 51, Subpart H and the model procedures in 40 CFR part 51, Appendix L. Section 49.138—Registration of air pollution sources and reporting of emissions. Any person who owns or operates an air pollution source except those exempted below would be required to register the source with EPA. A person subject to this rule must register the air pollution source by no later than one year after the effective date of these rules. A new air pollution source must register within 90 days after beginning operation. Sources must re-register each year and provide updates on any changes since the previous registration. The following sources are exempt from this rule: mobile sources; single family residences, and residential buildings with four or fewer units; air conditioning units used for human comfort that are not subject to applicable requirements under Title VI of the CAA and do not exhaust air pollutants into the atmosphere from any manufacturing or industrial process; ventilating units used for human comfort that do not exhaust air pollutants into the atmosphere from any manufacturing or industrial process; furnaces and boilers used exclusively for space heating with a rated heat input capacity of less than 400,000 Btu per hour; cooking of food, except for retail and wholesale businesses that both cook and sell cooked food; consumer use of office equipment and products; janitorial services and consumer use of janitorial products; maintenance and repair activities, except for air pollution sources engaged in the business of maintaining and repairing equipment, such as automobile repair shops or appliance repair shops; agricultural activities and forestry activities, including agricultural burning and forestry burning; and open burning. This requirement is appropriate as it would enable EPA to develop and maintain accurate records of air pollution sources and their emissions on reservation lands. Maintaining an accurate inventory of sources and emissions would help EPA protect air quality from potential significant deterioration that can occur if many sources within a particular area increase their air pollutant emissions. While the emission increase at each facility may be de minimis, the cumulative effect of the increases may be significant. The registration program would enable EPA to track trends and identify potential problems before they arise. Many State and local air agencies have a registration program or a permitting program to collect information similar to that required by the registration program in this section. Section 49.139—Rule for non-Title V operating permits. This section would create a permitting program to provide for the establishment of Federally-enforceable requirements for air pollution sources on Indian reservations. This rule would apply in the following three situations: (1) The owner or operator of any source wishes to obtain a Federally-enforceable limitation on the source's actual emissions or potential to emit and submits an application to the Regional Administrator requesting such limitation; (2) the Regional Administrator determines that additional Federally-enforceable requirements for a source are necessary to ensure compliance with the Federal or, if applicable, Tribal Implementation Plan; or (3) the Regional Administrator determines that additional Federally-enforceable requirements for a source are necessary to ensure the attainment and maintenance of any NAAQS or PSD increment. A source that would otherwise require a Part 71 Federal operating permit may instead obtain an operating permit under this section that limits its potential to emit to below major source thresholds so that the source is not subject to Part 71. The Regional Administrator would write the operating permit and follow the consultation and public comment procedures described in this rule. This rule would provide air pollution sources on reservations with air quality control requirements and regulatory alternatives similar to those available to sources located off-reservation. The rule also would enable the Regional Administrator to require further air emission reductions if necessary to attain or maintain the NAAQS or PSD increment. All State and local air agencies have a permitting mechanism to control emissions and to allow a source to limit its potential to emit so that it is not subject to Title V or other requirements for major stationary sources with procedures, conditions, prohibitions, and exemptions similar to those in the rule that EPA is proposing. C. Rules Proposed for Specific Reservations The proposed rules that follow this discussion identify for each Indian Tribe listed in Subpart M the specific rules that EPA is proposing to promulgate as a FIP for the Indian reservation of that Tribe. Subpart M is organized to contain the implementation plan for each Indian Tribe with a reservation. This plan will consist of a combination of Tribal rules and measures and Federal regulations and measures that apply to all applicable sources within the specific reservation, including trust lands set aside for the Tribe. While most of the rules in the FIPs constitute a base program that EPA is proposing for all reservations in Idaho, Oregon, and Washington, some of the proposed FIPs would include additional rules where specific needs have been identified through consultation with Tribes. Table 1 lists the “Base Program” rules, as well as the “Additional Rules”. The following “Additional Rules” are being proposed for three reservations (see Table 2 below) where EPA has found, in consultation with the relevant Tribe, that it is appropriate to establish these requirements in order to control air pollution. EPA is proposing the rules listed in Table 2 for the Nez Perce Reservation to limit the amount of particulate matter emitted to the atmosphere in the airsheds in and around the Reservation. EPA has found, in consultation with the Nez Perce Tribe, that these rules are appropriate because the activities that would be regulated by these rules are taking place on the Nez Perce Reservation. Specifically, the woodwaste burners, the wood products industries, open burning, agricultural, and forestry activities may be significant contributors to air quality concerns in the area. Based on consultations with the Nez Perce Tribe, EPA also is concerned that air pollution sources could adversely affect cultural or traditional resources of the Tribe in ways that may not be adequately protected by Tribal law. For the Umatilla Reservation, EPA is proposing the rules listed in Table 2 to limit the amount of particulate matter emitted to the atmosphere and airsheds in and around the Reservation. EPA has found, in consultation with the Confederated Tribes of the Umatilla Reservation, that these rules are appropriate because the activities that would be regulated by these rules are taking place on the Umatilla Reservation. Specifically, open burning, agricultural, and forestry activities may be significant contributors to air quality concerns in the area. Based on consultations with the Confederated Tribes of the Umatilla Reservation, EPA also is concerned that air pollution sources could adversely affect cultural or traditional resources of the Tribes in ways that may not be adequately protected by Tribal law. Finally, EPA is proposing the rules listed in Table 2 for the Colville Reservation to limit the amount of particulate matter emitted to the atmosphere in the airsheds in and around the area. EPA has found, in consultation with the Confederated Tribes of the Colville Reservation, that these rules are appropriate because the operations of woodwaste burners and wood products facilities located on the Colville Reservation cause the release of particulate matter which may adversely affect air quality in ways that may not be adequately protected by Tribal law. Correspondence from these Tribes providing relevant information and requesting that EPA propose these Additional Rules are included in the docket for this proposal. Table 2.—Reservation Specific Additional Rules Rule # Additional rules Nez Perce Reservation, Lapwai, Idaho Section 49.127 Rule for woodwaste burners. Section 49.128 Rule for limiting particulate matter emissions from wood products industry sources. Section 49.132 Rule for open burning permits. Section 49.133 Rule for agricultural burning permits. Section 49.134 Rule for forestry burning permits. Section 49.136 Rule for emissions detrimental to persons, property, cultural or traditional resources. Umatilla Indian Reservation, Pendleton, Oregon Section 49.132 Rule for open burning permits. Section 49.133 Rule for agricultural burning permits. Section 49.134 Rule for forestry burning permits. Section 49.136 Rule for emissions detrimental to persons, property, cultural or traditional resources. Colville Indian Reservation, Nespelem, Washington Section 49.127 Rule for woodwaste burners. Section 49.128 Rule for limiting particulate matter emissions from wood products industry sources. D. Costs Associated With These Rules and Request for Comment As part of developing these proposed rules, EPA conducted an analysis of the expected costs should these rules be adopted. Included in the docket for this rulemaking is an Economic Impact Analysis (EIA) that was prepared to assist EPA in estimating the costs of compliance for the sources that would be subject to these rules. For the purposes of generating cost estimates for each of the proposed rules, EPA assumed that there will be no capital costs incurred under any of these rules. EPA makes this assumption because the unique nature of this rule—sources are believed to be complying in the absence of the rule because they thought they were subject to State and local rules—makes it difficult to establish a counterfactual baseline showing what sources would be doing had they realized they were not subject to those rules under the CAA. Furthermore, based on information obtained from State, local, and Tribal authorities, as well as the businesses and other entities affected by these rules, EPA does not anticipate that facilities will add control devices as a result of these rules. In addition, EPA has not estimated operation and maintenance (O&M) costs to comply with these rules. EPA believes that O&M costs should be considered, but insufficient data were available to estimate them. O&M costs estimates based on information gathered from comments on the proposal will be included in the analysis for the final rule. Thus the costs estimated for these rules are primarily the labor costs associated with record keeping and reporting under the regulations. Costs for both the basic rules and additional rules were estimated in the EIA. For the basic rules, the annualized labor costs and non-labor costs were estimated to be $117,000 and $17,000, respectively, while incremental capital costs and incremental O&M costs were assumed to be zero. Thus, the total estimated cost associated with the basic rules is $134,000. Cost estimates for the additional rules only account for costs on those reservations for which EPA has proposed additional rules. The additional rules were estimated to have annualized labor costs of $23,000, while non-labor costs, incremental capital costs, and incremental O&M costs were each assumed to equal zero for a total of $23,000. Overall, annualized labor costs were estimated to be $140,000, annualized non-labor costs are estimated to be $17,000, incremental capital costs are assumed to be zero, and incremental O&M costs are assumed to be zero for a total estimated cost of $157,000. The information available to EPA for this analysis was assembled from a number of sources, including surveys of sources on the reservations, consultations with the sources and Tribal governments, and EPA's experience with air quality issues in the Pacific Northwest. Based on this information, several assumptions were made in order to estimate the expected compliance costs associated with these rules. EPA is now seeking comment on these assumptions. While comments on all aspects of the analysis are solicited, EPA specifically is soliciting comments on the assumptions described below regarding capital costs, O&M costs, and the costs of meeting visible emission and fugitive emission requirements, conducting source tests, and meeting the sulfur content in fuel limits. EPA is seeking comments on the assumption that no incremental capital costs would be required by these rules. The O&M costs associated with the continued compliance with these rules are expected to be small. However, there were insufficient data to estimate the magnitude of these costs. Therefore, EPA is requesting comment and supplemental information if appropriate on the expected O&M costs that would result from continued compliance with these rules. In addition, EPA would like comments on the following assumptions used for costing several of the individual rules. For the visible emission rule, it was assumed for costing purposes that two facilities would voluntarily train their own visible emissions readers and would send them to retraining each year. For the fugitive particulate matter emissions rule, it was assumed that an average of one construction project per reservation per year would need to develop and update particulate matter control plans. Under the particulate matter rule and the sulfur dioxide rule, it was assumed that six facilities and one facility, respectively, would conduct source tests within the first three years (Method 5 tests for the particulate matter rule and Method 6 tests for the sulfur dioxide rule). Finally, for the sulfur content of fuels rule, EPA assumed that fuel distributors have access to data on the sulfur content of delivered fuel and that fuel purchases would be unaffected because the fuel currently available already meets the sulfur limits established in the rule. EPA would like feedback from interested parties on the accuracy of these assumptions and suggestions for modifications, if applicable. For additional details on the assumptions used in the development of the estimated compliance costs associated with these rules, the reader is referred to the EIA. IV. Request for Public Comment EPA solicits comments on all aspects of today's proposal. In this proposal, EPA is trying to create a level playing field without imposing significant new costs to sources. Interested parties should submit comments by mail or in person to the address listed in the front of this proposal. Be sure to identify the appropriate docket control number (#A-2000-25) in your correspondence. Your comments must be received by June 13, 2002 to be considered in the final action taken by EPA. You may also comment on this proposal by attending the public hearing if one is held and providing oral comments. If EPA determines that a hearing should be held, the date and time will be announced in the local papers. You may also call David Bray at (206) 553-4253 to determine if a hearing will be held and to obtain the time and location. V. Administrative Requirements A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, 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 programs or the rights and obligations of recipients thereof; or (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, EPA has determined that this proposed rulemaking is a “significant regulatory action” because it may raise novel legal or policy issues. The rulemaking marks the first time that, under the Clean Air Act, EPA has proposed Federal Implementation Plans for specific reservations that would be generally applicable to all sources within the exterior boundaries of those reservations. However, EPA's analysis indicates that this rulemaking will not have a significant economic impact. EPA is finding that many sources on Indian reservations have historically been following similar air programs that are established by State and local agencies acting under State law or local rules. Although EPA has not approved SIPs as extending into Indian country under the CAA, some sources located on Indian reservations have made efforts to follow those programs. Most industrial sources on the Region 10 reservations have installed or upgraded air pollution control equipment to conform with State or local air programs without challenging the authority of those agencies within Indian country. As a result, these sources already have pollution controls that would satisfy State and local rules. As discussed above in section III.A, this rulemaking would establish regulatory requirements for sources under the authority of the CAA that are substantially similar to the requirements of adjacent jurisdictions that most sources already meet. Thus, it is EPA's expectation that these rules would not impose significant costs or require changes at regulated sources. Nevertheless, because of the limited precedent this rulemaking would set, this action was submitted to OMB for review. Any written comments from OMB to EPA, any written EPA response to those comments, and any changes made in response to OMB suggestions or recommendations are included in the docket. The docket is available for public inspection at the EPA's Air Docket Section in Washington DC and at EPA Region 10 in Seattle, Washington. See the ADDRESSES section of this preamble for specific addresses and times when the docket may be reviewed. B. Regulatory Flexibility Act The Regulatory Flexibility Act, (5 U.S.C. 601 et seq. ) (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121) (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rulemaking on small entities, small entity is defined as: (1) A small business as defined by the RFA (based on Small Business Administration size standards); (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; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Based on our economic analysis, we certify that this action will not have a significant economic impact on a substantial number of small entities. The economic analysis shows the total annual compliance costs of the basic and additional rules to be approximately $1,000 per small business. The cost-to-sales ratio for small business entities is expected to be less than one percent, with the exception of one facility whose estimated ratio is 1.15, when the worst-case scenario is applied. Although this proposed rulemaking will not have a significant economic impact on a substantial number of small entities, EPA also has included a number of exemptions in the rules where appropriate to reduce impacts of this rulemaking on small entities. There are 13 rules that EPA proposes to apply to all reservations in Idaho, Oregon and Washington. Of these 13 rules, one (§ 49.121) provides an introduction, one (§ 49.122) provides delegation procedures for Tribes, and one (§ 49.123) provides definitions. The remaining ten (§§ 49.124, 49.125, 49.126, 49.129, 49.130, 49.131, 49.135, 49.137, 49.138, 49.139) have some regulatory effect. Eight of these ten contain exemptions for sources considered sufficiently small, such as households or the owners of mobile sources. Only two rules, one that addresses emissions detrimental to persons (§ 49.135) and one that addresses air pollution episodes (§ 49.137), do not include exemptions. These two rules require determinations by the Regional Administrator and would only be used when EPA determines that adverse effects of air pollution warrant their use. In developing this proposal, EPA consulted extensively with Tribal governments regarding the potential impacts of these rules (see section G below). In order to better understand the implications of these rules for small entities, as part of the consultations with Tribal representatives, EPA also explored the possible effects for small businesses operating on Tribal lands. Moreover, while making site visits to Tribal reservations, EPA staff met one-on-one with numerous small business owner/operators and discussed today's proposal. Also during the course of these rules' development, EPA attended and made presentations about this activity at numerous public meetings and conferences; venues at which representatives of Tribally-owned and Indian-owned small businesses were present and had opportunities to comment on the rule. We continue to be interested in the potential impacts of the proposed rulemaking on small entities and welcome comments on issues related to such impacts. In addition, EPA intends to continue outreach to affected businesses, especially small businesses, during the public comment period to provide additional opportunities for input from small entities. C. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Section 205 generally requires that, before promulgating a rule for which a written statement must be prepared, EPA identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator explains why that alternative was not adopted. Finally, section 203 requires that, before establishing any regulatory requirements that may significantly or uniquely affect small governments, EPA must have developed a small government agency plan. The plan must provide for notifying any potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rulemaking does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. With regard to State and local governments, there is no expenditure because these rules only apply on Indian reservations. With regard to Tribal governments, there is no expenditure in implementing and enforcing the rules because the rules would provide that EPA would take on that responsibility unless a Tribe chooses to assist EPA or assume responsibility for its own reservation. In such a case, EPA would seek to provide funding to support these efforts. Thus, today's rules are not subject to the requirements of sections 202 and 205 of UMRA. In developing this rulemaking, EPA consulted with small governments pursuant to its interim plan established under section 203 of the UMRA to address impacts of regulatory requirements in the rules that might significantly or uniquely affect small governments. As explained in the discussion of Executive Order 13175 in section G below, among other things, we notified all potentially affected Tribal governments of the requirements in these proposed rules. Further, although there are no significant Federal intergovernmental mandates, we provided officials of all potentially affected Tribal governments an opportunity for meaningful and timely input in the development of the regulatory proposals. Finally, through consultation meetings and other forums, we will continue to keep Tribal governments involved by providing them with opportunities for learning about and receiving advice on compliance with the regulatory requirements. D. Paperwork Reduction Act The information collection requirements in this proposed rulemaking have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 2020.01) and a copy may be obtained from Sandy Farmer by mail at Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460, by email at farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may ­also be downloaded off the internet at http://www.epa.gov/icr. The proposed FIPs include information collection requirements related to the registration of and reporting of emissions from air pollution sources. EPA believes these information collection requirements are appropriate because they would enable EPA to develop and maintain accurate records of air pollution sources and their emissions on reservation lands. As discussed in the summary of § 49.138 in section III.A. of this preamble, maintaining an accurate inventory of sources and emissions would, among other things, help EPA protect air quality from potential significant deterioration that can occur if many sources within a particular area increase their air pollutant emissions. These registration requirements would be mandatory under § 49.138. Regulated entities would be able to assert claims of business confidentiality and EPA would treat these claims in accordance with the provisions of 40 CFR part 2, Subpart B. The reporting and record keeping burden for this collection of information is described below. 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. EPA estimates that the owners or operators of facilities affected by these basic and additional rules will incur a total of $140,000 in labor costs and $17,000 in non-labor costs to comply with the information collection requirements of these rules. 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. Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after March 15, 2002, a comment to OMB is best assured of having its full effect if OMB receives it by April 15, 2002. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rulemaking is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. Further, it does not concern an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. F. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that had Federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This proposed rulemaking does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These rules only prescribe regulations for facilities in areas where a State does not administer an approved Clean Air Act program, and thus does not have any direct effect on any State. Moreover, it does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this rulemaking. EPA has provided advance draft copies of the proposed rules to State and local authorities in Idaho, Oregon and Washington. Generally, the States are pleased that EPA is developing rules for Indian reservations, as the rules will create more parity in the regulatory environment between on-reservation and off-reservation lands. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rulemaking from State and local officials. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has Tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by Tribal governments, or EPA consults with Tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has Tribal implications and that preempts Tribal law, unless the Agency consults with Tribal officials early in the process of developing the proposed regulation. EPA has concluded that this proposed rule will have Tribal implications. These regulations would significantly affect specific Indian reservation communities by filling the gap in air quality regulations and thus creating a level of air quality protection not previously provided under the CAA. However, the air quality requirements proposed here are applicable broadly to all sources within the identified Indian reservation areas, and are not uniquely applicable to Tribal governments. The gap-filling approach used in this proposal would create Federal requirements similar to those that are already in place in jurisdictions adjacent to the reservations covered by the proposal. Tribal governments may incur some compliance costs in meeting those requirements that apply to sources they own or operate; however, the economic impacts analysis does not indicate that those costs will be significant. Finally, although Tribal governments are encouraged to partner with EPA on the implementation of these regulations, they are not required to do so. EPA will seek to provide funding to Tribes that apply for delegation of EPA's authority to administer specific rules to support their activities. Since this proposed rulemaking will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule. Consistent with EPA policy, EPA consulted with Tribal officials and representatives of Tribal governments early in the process of developing this regulation to permit them to have meaningful and timely input into its development. The concept for this rulemaking grew from discussions related to implementation of the CAA and the TAR with Tribes throughout Region 10 who are engaged in developing Tribal air quality programs. EPA Region 10 began assembling an inventory of air pollution sources in 1995, and EPA has been working with Tribes and other air management agencies since then to better determine the need for specific rules and to evaluate alternatives for Tribal and Federal programs. Based on the discussions and inventory development, EPA decided to develop the proposed approach to rulemaking that would be tailored to the air quality issues of Tribes in Idaho, Oregon and Washington. In June 1999, EPA Region 10 met in Seattle, Washington, with Tribal leaders, managers, and attorneys to introduce the Tribal Air Rules Project. A generally favorable response from Tribal leadership to the project led EPA to prepare a formal consultation package that included preliminary rules, and the package was distributed for review to the leadership of all of the potentially affected Tribes in Idaho, Oregon, and Washington. In August 1999, EPA Region 10 held three technical meetings with Tribal staff who are air specialists for in-depth discussions. Thirteen Tribes participated in these technical meetings. The Consultation Record in the docket for this proposal provides detailed information on the consultations. In July 2000, a complete draft of the proposed rules was formally distributed to all 41 of the Tribal governments in Idaho, Oregon, and Washington. At the time of this proposal, 39 of the 41 Tribes have reservations. Two Tribes recently received Federal recognition and do not have reservation lands yet. The letter that transmitted the rule package was addressed to the Tribal Chair and sent by certified mail. Complete copies of the package were sent to the Natural Resource or Environmental Director at each Tribe and to the air specialist, in cases where the Tribe has one. In the letter, EPA Region 10 requested that the Tribe provide their views and comments on the proposed rules by September 30, 2000, and identify any additional rules that the Tribe would like EPA to propose for a particular reservation. EPA Region 10 conducted follow-up telephone inquiries to offer opportunities for Tribes to participate in conference calls, group consultation meetings with EPA Region 10, and individual meetings with EPA Region 10. EPA Region 10 reached 39 of the 41 Tribes through these initial telephone contacts. In September and October of 2000, EPA Region 10 held four consultation meetings to discuss the draft proposed rulemaking package in Spokane, Puyallup, the Swinomish Reservation, and Portland. In the 2000 consultation round, 19 Tribes participated in face-to-face meetings with EPA Region 10. Another seven tribes consulted with EPA Region 10 through individual or group conference calls. Three Tribes submitted comments supporting the rule and requesting that EPA propose specific rules for their reservation. Please see the consultation record for more detailed information on the consultations. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA specifically solicits additional comment on this proposed rule from Tribal officials. H. Executive Order 13211: Energy Effects This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects, because the facilities affected already have the pollution controls in place to enable them to comply with these rules. I. National Technology Transfer and Advancement Act of 1995 (NTTAA) Section 12(d) of NTTAA, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary standards. This proposed rulemaking involves technical standards. EPA proposes to use American Society for Testing and Materials (ASTM) Methods and generally accepted test methods previously promulgated by EPA. Because all of these methods are generally accepted and are widely used by State and local agencies for determining compliance with similar rules, EPA believes it would be impracticable and potentially confusing to put in place methods that vary from what is already accepted. As a result, EPA believes it is unnecessary and inappropriate to consider alternative technical standards. Nevertheless, EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in these regulations. List of Subjects in 40 CFR Part 49 Environmental protection, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: February 13, 2002. Christine Todd Whitman, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 49—TRIBAL CLEAN AIR ACT AUTHORITY 1. The authority citation for part 49 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. 2. Part 49 is amended by revising subpart C to read as follows: Subpart C—General Federal Implementation Plan Provisions Sec. 49.101-49.120 [Reserved] General Rules for Application to Indian Reservations in EPA Region 10 49.121 Introduction. 49.122 Delegation of authority to a Tribe. 49.123 General provisions. 49.124 Rule for limiting visible emissions. 49.125 Rule for limiting the emissions of particulate matter. 49.126 Rule for limiting fugitive particulate matter emissions. 49.127 Rule for woodwaste burners. 49.128 Rule for limiting particulate matter emissions from wood products industry sources. 49.129 Rule for limiting emissions of sulfur dioxide. 49.130 Rule for limiting sulfur in fuels. 49.131 General rule for open burning. 49.132 Rule for open burning permits. 49.133 Rule for agricultural burning permits. 49.134 Rule for forestry burning permits. 49.135 Rule for emissions detrimental to human health and welfare. 49.136 Rule for emissions detrimental to persons, property, cultural or traditional resources. 49.137 Rule for air pollution episodes. 49.138 Rule for the registration of air pollution sources and the reporting of emissions. 49.139 Rule for non-Title V operating permits. 49.140-49.200 [Reserved] Subpart C—General Federal Implementation Plan Provisions §§ 49.101-49.120 [Reserved] General Rules for Application to Indian Reservations in EPA Region 10 § 49.121 Introduction. (a) What is the purpose of these rules? These “General Rules for Application to Indian Reservations in EPA Region 10” establish emission limitations and other requirements for air pollution sources located within Indian reservations in Idaho, Oregon, and Washington that are appropriate in order to ensure a basic level of air pollution control and to protect public health and welfare. (b) How were these rules developed? These “General Rules for Application to Indian Reservations in EPA Region 10” were developed through consultation with the Indian Tribes located in Idaho, Oregon, and Washington. The rules take into consideration the current air quality situations within Indian reservations, the known sources of air pollution, the needs and concerns of the Indian Tribes in that portion of Region 10, and the air quality rules in adjacent jurisdictions. (c) When are these rules applicable to sources on a particular Indian reservation? These “General Rules for Application to Indian Reservations in EPA Region 10” apply to air pollution sources on a particular Indian reservation when EPA has specifically promulgated one or more rules into effect for that reservation. Rules shall be promulgated into effect through notice and comment rulemaking and will be specifically identified in the implementation plan for that reservation in Subpart M—Implementation Plans for Tribes—Region 10, of this Part. These “General Rules for Application to Indian Reservations in EPA Region 10” will not apply to air pollution sources located on newly established Tribal trust lands located outside the exterior boundaries of an Indian reservation until after they are promulgated into effect through notice and comment rulemaking. § 49.122 Delegation of authority to a Tribe. (a) What is the purpose of this rule? The purpose of this rule, § 49.122, is to establish the process by which the Regional Administrator may delegate to an Indian Tribe the authority to administer all, or a portion of, the rules that have been promulgated into effect in Subpart M of this Part for a particular Indian reservation. This section provides for administrative delegation and does not affect the eligibility criteria under 40 CFR 49.6 for treatment in the same manner as a State. (b) How does a Tribe request delegation? In order to be delegated authority to administer the rules that are in effect in Subpart M of this Part for a particular Indian reservation, the authorized representative of a Tribe must submit a request to the Regional Administrator that: (1) Identifies the specific rules and provisions for which delegation is requested; (2) Identifies the Indian reservation for which delegation is requested; (3) Includes a statement by the applicant's legal counsel (or equivalent official) that includes the following information: (i) A statement that the applicant is an Indian Tribe recognized by the Secretary of the Interior; (ii) A descriptive statement demonstrating that the applicant is currently carrying out substantial governmental duties and powers over a defined area and that meets the requirements of § 49.7(a)(2); and (iii) A description of the laws of the Indian Tribe that provide adequate authority to carry out the aspects of the rules and provisions for which delegation is requested; and (4) Demonstrates that the Tribe has, or will have, adequate resources to carry out the aspects of the rules and provisions for which delegation is requested. (c) How is the delegation of authority accomplished? (1) A Delegation of Authority Agreement will set forth the terms and conditions of the delegation, will specify the rules and provisions that the Tribe shall be authorized to implement, and shall be entered into by the Regional Administrator and the Tribe. The Regional Administrator will not delegate authority to a Tribe for areas for which EPA believes the Indian reservation status is in question. The Agreement will become effective upon the date that both the Regional Administrator and the authorized representative of the Tribe have signed the Agreement. Once the delegation becomes effective, the Tribe will have the authority under the Act, to the extent specified in the Agreement, for administering the rules in effect in Subpart M of this Part for the particular Indian reservation and shall act as the Regional Administrator as that term is used in these regulations. (2) A Delegation of Authority Agreement may be modified, amended, or revoked, in part or in whole, by the Regional Administrator after consultation with the Tribe. (d) How will any delegation of authority be publicized? The Regional Administrator shall publish a notice in the Federal Register informing the public of any delegation of authority to a Tribe to administer all or a portion of the rules in Subpart M of this Part that apply for an Indian reservation and will indicate such delegation in the implementation plan for the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-4140. Public record. Not legal advice.