Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon, and Washington

Federal RegisterOct 12, 2022

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R10-OAR-2020-0361; FRL-5565-02-R10]

RIN 2012-AA02

Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon, and Washington

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) proposes to revise the Federal Air Rules for Reservations (FARR), which is a collection of Federal Implementation Plans (FIPs) under the Clean Air Act for Indian reservations in Idaho, Oregon, and Washington. The proposed revisions, the first since the FARR was promulgated in 2005, clarify aspects of the initial rules, improve implementation, reflect air quality improvement strategies similar to those implemented in neighboring jurisdictions, and add provisions to address high levels of particulate matter emissions. In addition, the EPA proposes to promulgate three new FIPs implementing the FARR, for the Snoqualmie Indian Reservation, the Cowlitz Indian Reservation, and the lands held in trust for the Samish Indian Nation. As revised, the FARR will help further protect the human health and the environment of communities in and adjacent to these Indian reservations. The FARR will continue to be implemented by the EPA or a delegated Tribal authority, until replaced by a Tribal Implementation Plan (TIP) for a particular Indian reservation.

DATES:

Comments:

Comments must be received on or before January 10, 2023. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before November 14, 2022. Please refer to the

SUPPLEMENTARY INFORMATION

section (section IV.B.

Paperwork Reduction Act (PRA) of this preamble

) for additional information on submitting comments to OMB.

Public Hearing:

If anyone contacts us requesting a public hearing on or before October 27, 2022, the EPA will hold a virtual public hearing. See

SUPPLEMENTARY INFORMATION

for information on requesting and registering for a public hearing.

ADDRESSES:

You may submit your comments, identified by Docket ID No. EPA-R10-OAR-2020-0361, using the Federal eRulemaking Portal at

https://www.regulations.gov.

Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from

www.regulations.gov.

The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (

i.e.,

on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit

https://www.epa.gov/dockets/commenting-epa-dockets.

See the

SUPPLEMENTARY INFORMATION

section for further instructions on submitting comments. Please contact the individual listed in the

FOR FURTHER INFORMATION CONTACT

section if you need assistance.

FOR FURTHER INFORMATION CONTACT:

Sandra Brozusky, Air and Radiation Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101-1128, (206) 553-5317,

brozusky.sandra@epa.gov.

SUPPLEMENTARY INFORMATION:

Participation in virtual public hearing.

As discussed in the public hearing subsection, if anyone contacts us to request a public hearing on or before October 27, 2022, a virtual hearing will be held on November 17, 2022. The opportunity for a virtual public hearing is being offered to provide interested parties the opportunity to present information and opinions to the EPA concerning our proposal.

If requested, the virtual hearing will convene at 5:30 p.m. Pacific Time and will conclude at 8:00 p.m. Pacific Time unless the number of registrants indicates more time is needed. The EPA may close a session 15 minutes after the last registered speaker has testified if there are no additional speakers. The EPA will announce further details, including whether the hearing will be held, on the virtual public hearing website at

https://www.epa.gov/farr.

If a virtual hearing is held you can register to speak by using the online registration form available at

www.epa.gov/farr

or contact Sandra Brozusky at by email at

brozusky.sandra@epa.gov.

The EPA will post a general agenda prior to the hearing that will list registered speakers in approximate order at:

www.epa.gov/farr.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 5 minutes to provide oral testimony. The EPA recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at

www.epa.gov/farr.

Please monitor our website or contact Sandra Brozusky at (206) 553-5317 or by email at

brozusky.sandra@epa.gov

to determine if there are any updates. The EPA does not intend to publish a document in the

Federal Register

announcing updates.

If you require the services of a translator or a special accommodation such as audio description, please register for the hearing and describe your needs by November 1, 2022. If you need additional assistance, please contact the individual listed in the

FOR FURTHER INFORMATION CONTACT

section. The EPA may not be able to arrange accommodations without advanced notice.

Docket.

The EPA has established a docket for this rulemaking under Docket ID No. EPA-R10-OAR-2020-0361. All documents in the docket are listed in

Regulations.gov

. Although listed, some information is not publicly available,

e.g.,

Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available electronically in

www.regulations.gov.

Instructions.

Direct your comments to Docket ID No. EPA-R10-OAR-2020-0361. The EPA's policy is that all

comments received will be included in the public docket without change and may be made available online at

www.regulations.gov,

including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically any information that you consider to be CBI or other information whose disclosure is restricted by statute.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (

i.e.,

on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit

https://www.epa.gov/dockets/commenting-epa-dockets.

The

www.regulations.gov

website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at

https://www.epa.gov/dockets.

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via

www.regulations.gov.

For further information and updates on EPA Docket Center services, please visit us online at

https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

Submitting CBI.

Do not submit information containing CBI to the EPA through

www.regulations.gov

or email. Clearly mark the part or all of the information that you claim to be CBI. If your material cannot be submitted using

www.regulations.gov

contact the person in the

FOR FURTHER INFORMATION CONTACT

section of this document for alternate instructions.

Organization of this document.

Throughout this document, whenever “we,” “us,” or “our” is used, it means the EPA. This supplementary information section is arranged as follows:

Table of Contents

I. Background

A. Today's Action

B. Basis for Proposed Action

C. Areas Covered by the Rules

D. Relationship Between Part 49, Subpart C and Subpart M

II. Proposed FIP Revisions

A. Proposed Revisions and New Rules

B. Rules Proposed for Specific Indian Reservations

C. Environmental Justice

D. Costs and Benefits Associated With These Rules

III. Public Participation and Request for Comment

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

I. Background

A. Today's Action

To better protect air quality on Indian reservations in Idaho, Oregon, and Washington, and consistent with our authority under sections 301(a) and 301(d)(4) of the Clean Air Act (CAA) and 40 CFR 49.11(a), the EPA is proposing revisions to the Federal implementation plans (FIPs) (40 CFR part 49, subpart M) and the General Rules for Application to Indian Reservations in EPA Region 10 (40 CFR part 49, subpart C). These rules, originally promulgated in 2005, are collectively known as the Federal Air Rules for Reservations or “FARR.” As revised, the FARR will continue to ensure that basic air quality regulations are in place to protect health and welfare on Indian reservations located in Idaho, Oregon, and Washington.

The proposed revisions are based on the EPA's and Tribes' experience in implementing the FARR since 2005, as well as changes in related Federal air quality regulations, and changes in monitored air quality. The revisions range from minor clarifications and revisions to existing rule language, to new regulations addressing additional emission sources, such as wood burning devices, that contribute to high levels of particulate matter emissions in certain areas. The minor changes to the existing FARR consist of eliminating duplicative text, correcting syntax and cross-reference errors, renumbering, minor clarification of rule language to improve consistency and implementation, and reformatting. In describing the FARR revisions in section II of this preamble, we have focused on the substantive rule changes, and do not describe in detail the editorial changes made throughout.

The proposed revisions include minor editorial changes throughout the FARR (subpart C) and FIP (subpart M) rules, in addition to substantive changes to certain provisions of the rules. As such, we are publishing with this proposal the full text of the rules as proposed to be revised, rather than only the portions of the text proposed to be revised in this action. A redline-strikeout comparison of the revised rules, as proposed, to the existing FARR and FIPs showing all proposed changes is included in the docket for this action. The EPA solicits comments on all aspects of the proposed revisions.

The EPA actively coordinated and consulted with affected Tribes in both group and individual meetings and encouraged affected Tribes to provide input to the EPA in developing these proposed revisions to ensure that Tribal considerations are properly addressed. This coordination and consultation with affected Tribes is described in the docket for this action.

B. Basis for Proposed Action

On April 8, 2005, the EPA promulgated FIPs under the CAA for 39 Indian reservations in Idaho, Oregon, and Washington to provide basic air quality regulations to protect health and

welfare (70 FR 18074). The EPA took this action under its authority in sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate “such Federal implementation plan provisions as are necessary or appropriate to protect air quality” in Indian country. A key goal of the FARR was to help ensure that people living within Indian reservation boundaries receive equivalent air quality protection to those living outside of Indian reservations, as well as to “level the playing field” and help ensure that emissions from sources located within Indian reservations are controlled to levels similar to those of sources located outside the Indian reservations. The FARR rules were therefore substantially similar in the level of control to the neighboring State and local rules most relevant to the air polluting activities on these Indian reservations (70 FR 18074, 18077, 18091, 18093, April 8, 2005) (67 FR 11748, 11753, March 15, 2002).

The EPA has stated that it intends to carry out its authority under the CAA in Indian country in a prioritized way, beginning with sources that pose the greatest threat to public health and the environment (64 FR 8247, 8255, February 19, 1999) (67 FR 11748, 11749, March 15, 2002). The initial FIPs were the first building blocks under the CAA to address the most prevalent needs identified on Indian reservations in the Pacific Northwest. The EPA committed to revising the FARR as necessary or appropriate after gaining experience in implementing the FARR, identifying additional regulatory needs in light of changing air quality needs, and in consultation with Tribes (70 FR 18074, 18079, 18082, 18085, April 8, 2005).

This proposed rulemaking is the next step in addressing known air quality concerns on Indian reservations in the Pacific Northwest. The EPA has been implementing the FARR for over 15 years, often with the help of Tribes through formal delegations, grants, and informal assistance. Over the last several years, the EPA has actively coordinated and consulted with the Tribes in Idaho, Oregon, and Washington in developing these proposed revisions to the FARR and has sought suggestions from those responsible for implementation. The proposed revisions in this action incorporate many of these suggestions.

As with the initial promulgation of the FARR in 2005, the EPA is proposing these revisions under our authority in sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) because we have concluded that the revisions are necessary or appropriate for protecting air quality on Indian reservations in the Pacific Northwest. The proposed revisions fall into several categories. First, the EPA and the affected Tribes have identified needed clarifications of existing rule sections to ensure the FARR is implemented as intended in 2005. Second, promulgation of new requirements that apply on Indian reservations, such as the Federal Minor New Source Review Program in Indian Country (Indian Country Minor NSR Rule) (76 FR 38748, July 1, 2011) has made some provisions of the FARR obsolete or necessitated revisions. Third, the test methods and industry standards incorporated by reference into the FARR have been updated since 2005. Fourth, input from affected Tribes and the EPA's ongoing evaluation of the FARR identified particular concerns with air pollution from some unregulated sources of particulate matter, such as emissions from residential wood burning devices and certain orchard heating devices.

Finally, since promulgation of the FARR, the EPA has strengthened the National Ambient Air Quality Standards (NAAQS) and increased protection of public health and welfare from fine particle pollution by reducing the level of the NAAQS for PM

2.5

(particles less than or equal to 2.5 micrometers in aerodynamic diameter) to 35 micrograms per cubic meter (µg/m

) for the 24-hour standard and 12 µg/m

for the annual standard (71 FR 61144, October 17, 2006) (78 FR 3086, January 15, 2013)

. The NAAQS, promulgated under section 109 of the CAA, are a key component of air quality protection under the CAA. PM

2.5

particles, measuring about 30 times less than the diameter of a human hair, are particularly harmful to human health as they can travel through the blood stream and cause significant health risks.

The CAA requires EPA to periodically review the standards to ensure that they provide adequate health and environmental protection, and to update those standards as necessary. The EPA is currently reconsidering a previous decision to retain the PM NAAQS, which were last strengthened in 2012 and expects to issue a proposed rulemaking in 2022 and a final rule in 2023. Should the NAAQS be revised, the EPA will work with Tribes to designate Indian reservations and evaluate whether further revisions to the FARR are necessary or appropriate.

Since the PM

2.5

NAAQS have been revised, more Indian reservations in the Pacific Northwest are at risk of a “nonattainment” designation, which may result in the development and implementation of plans containing stricter air pollution reduction measures. To reduce emissions to help these areas continue to maintain the NAAQS and better protect public health and welfare on Indian reservations in the Pacific Northwest, the EPA is proposing revisions to existing rules and new rule sections to address certain previously unregulated sources of particulate matter emissions. These proposed regulations are described in more detail in Section II of this preamble.

In developing these proposed revisions, the EPA has two objectives in addition to those discussed in the previous paragraphs of this section. First, the EPA is proposing only those regulations that, to the extent practicable, minimize the implementation burdens upon the EPA and the regulated community while establishing requirements that are unambiguous and enforceable. Second, the EPA anticipates that these regulations can serve as models for Tribes as they continue to 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.

As with the initial FARR promulgation, the EPA does not intend, nor does it expect, the proposed revisions to impose significantly different regulatory burdens upon industry or residents within Indian reservations than those imposed by the rules of State and local air agencies in the surrounding areas. Instead, the intent remains to ensure that people living within Indian reservation boundaries receive equivalent air quality protection, and that emissions from sources located within Indian reservations are controlled to levels similar to those of sources located outside the Indian reservations.

C. Areas Covered by the Rules

The FARR generally applies 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. As discussed in the Tribal Authority Rule (TAR) (63 FR 7254, 7257-58, February 12, 1998), the EPA interprets the term “reservation” consistent with U.S. Supreme Court case law to include both (1) lands that have been formally designated as a reservation by, for example, treaty, Federal statute, or Executive Order of the President (often referred to as “formal reservations”) and (2) lands held in trust by the United States for the benefit of a Tribe, even if such lands have not been formally designated as a reservation (often referred to as “informal reservations”) (40 CFR 49.2(b); see also

Arizona Public Service

Co.

EPA,

211 F.3d 1280, 1292-94 (D.C. Cir. 2000),

cert. denied,

532 U.S. 970 (2001)). The preambles to the proposed and final FARR promulgated in 2005 indicate that the EPA intended that the FIP for a particular Tribe would apply to trust lands, even if not formally designated as a reservation (70 FR 18074, 18076-77, April 8, 2005) (67 FR 11748, 11749-11750, March 15, 2002). This intention, however, may not have been clear in light of language included in the final response to comments document for the FARR, “Response to Comments on the March 15, 2002 Proposal for Federal Implementation Plans under the Clean Air Act for Indian Reservations in Idaho, Oregon, and Washington,” comment A.3, indicating that the EPA intended the FARR to apply only to the formally designated reservation of a particular Indian Tribe.

The EPA believes it is important to make clear that the environmental protections provided by the FARR extend to “reservations,” as that term has been interpreted by EPA under CAA Section 301(d)(2)(B) and the TAR, that is, including any land held in trust for a covered Tribe that has not been formally designated as a reservation. The FARR currently defines “Indian country,” which includes Indian reservations as one element of Indian country but does not have a stand-alone definition of “Indian reservation.” The EPA is proposing to add a definition of “Indian reservation” in the FARR that defines “Indian reservation” according to the language of the Indian reservation element of Indian country and is thus consistent with the definition of “Federal Indian Reservation,” “Indian Reservation,” or “Reservation” under the TAR (40 CFR 49.2(c)). To eliminate any questions as to where the FARR applies, the EPA proposes to include in the FARR definition of Indian reservation the following explanatory language: “Under this definition, Indian reservations include lands held in trust by the United States government for the benefit of an Indian Tribe even if the trust lands have not been formally designated as a reservation”. The inclusion of this additional explanatory language is not intended to make the use of the term “Indian reservation” in the FARR differ in any respect from that term as used and defined in the TAR, but rather to ensure the meaning of the term “Indian reservation” under the FARR is clear to the regulated community. Because a FIP under the FARR applies “within” the reservation of the specified Tribe, any newly established reservation lands for the specified Tribe will become automatically subject to the FIP for that Tribe as soon as the lands obtain their reservation status. The EPA has added language to make this clear.

Recognizing the lack of clarity on these issues under the existing language in the FARR, however, the proposed revisions would establish a date after which subject sources on land held in trust for a Tribe that has not been formally designated as a reservation must meet the requirements of the FARR.

In general, that date will be the effective date of the final rule promulgating these revisions. However, for rules that provide a period of time before subject sources are required to comply, the compliance dates for newly subject sources will be specified in those rules. As currently is the case, however, the FARR will not apply to the reservation of a newly-recognized Indian Tribe in Idaho, Oregon, or Washington until a FIP has been promulgated for the reservation of that Tribe, which would occur only after coordination and consultation with the affected Tribe and a rulemaking with notice and an opportunity for public comment.

We estimate that there are approximately 31 stationary sources, such as casinos and a coffee roaster, located on such lands covered or proposed to be covered by the FARR. We are not aware of any such sources that would require additional control or monitoring equipment to comply with the FARR, as revised. The EPA is not proposing to revise the FARR to apply to other areas of Indian country, namely, individual Indian allotment lands that are located outside the exterior boundaries of a reservation or dependent Indian communities that do not also qualify as reservations. The EPA is not currently aware of any sources on those types of land outside of reservations in Idaho, Oregon, or Washington to which the FARR need apply. If in the future, EPA becomes aware of air quality concerns for Indian country outside of “Indian reservations” as defined in the FARR, EPA may propose other requirements that are deemed necessary or appropriate.

In addition to this clarification, the EPA is proposing to make the FARR, as revised, applicable through the promulgation of FIPs to the reservation lands of two Federally recognized Indian Tribes that did not have reservation lands when the FARR was originally promulgated in 2005. At that time, the Cowlitz Indian Tribe and the Snoqualmie Indian Tribe had both received Federal recognition but did not have reservation lands. The Cowlitz Indian Reservation was established on March 9, 2015, and covers 152 acres in Clark County, Washington (80 FR 70250, November 13, 2015). The Snoqualmie Indian Reservation was established on October 20, 2006, covering approximately 55.84 acres in King County, Washington (71 FR 63347, October 30, 2006). In anticipation of this proposed revision, the EPA met informally and had discussions with both Tribes to explain the FARR and the proposed revisions to make the FARR apply to their Indian reservations and received each Tribe's input.

The EPA is also proposing to make the FARR, as revised, applicable through the promulgation of a FIP to the lands held in trust for the Samish Indian Nation. When the FARR was promulgated in 2005, the Samish Indian Nation had received Federal recognition but did not have trust lands or a formally designated reservation. During the development of the FARR revisions, the EPA had discussions with the Samish Indian Nation about having the FARR apply to their trust lands. Applying the FARR to the lands held in trust for the Samish Indian Nation would be consistent with the clarifications discussed in this section to ensure the FARR applies to any land held in trust for a Tribe that has not been formally designated as a reservation. The specific rule sections that apply on each of these Indian reservations would be incorporated by reference into reservation specific FIPs at 40 CFR part 49, subpart M, as shown in the proposed rulemaking changes.

D. Relationship Between Part 49, Subpart C and Subpart M

The FARR has been structured with the “modular” approach described in the TAR to allow for both variation among Indian reservations and to facilitate the development and approval of TIPs to replace all or part of the Federal rules. Each section in subpart C,

e.g.,

40 CFR 49.131 General Rule for open burning, is effectively a “stand-alone” rule. The EPA promulgated a FIP in subpart M for each reservation, and each FIP incorporates specific rule sections that are tailored on a reservation-by-reservation basis. Although most of the rules in the FIPs constitute a “base program” applicable to all Indian reservations in Idaho, Oregon, and Washington, some of the FIPs include “additional” reservation specific rules where specific needs exist or where the EPA determined, in coordination and consultation with the relevant Tribe, that a more stringent provision than would otherwise apply is appropriate. For example, the rule for particulate matter emissions from wood products industry sources was promulgated in 2005 for Indian reservations that had existing wood products industry sources or for those where such sources might be expected to locate, and where the EPA determined, in coordination and consultation with the affected Tribe, that more stringent provisions were

appropriate (67 FR 11748, 11750-11751, 11753, 11758, March 15, 2002). The proposed revisions maintain this structure.

Table 1 lists all of the existing rules and proposed new rules under the FARR, including the “base program” rules that apply or are proposed to apply on all Indian reservations in Idaho, Oregon, and Washington, as well as the “additional” reservation specific rules that apply or are proposed to apply on some, but not all such Indian reservations (further discussed in Section II. of this preamble).

Table 1—Base Program and Additional Rules

Section No.

Title

Base program

Additional rules

§ 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 large open burning permits

§ 49.133

Rule for agricultural burning permits

§ 49.134

Rule for forestry and silvicultural burning permits

§ 49.135

Rule for emissions detrimental to public health or welfare

§ 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

Rule for residential wood burning devices

§ 49.141

Rule for curtailment of residential wood burning devices for specific areas

§ 49.142

Rule for small open burning annual permits

§ 49.143

Permit by rule for small open burns

This structure also facilitates the delegation under 40 CFR 49.122 of certain FARR rules to Tribes that are building air quality programs. A delegation agreement authorizes a Tribe, with Federal assistance, to administer the Federal program, with EPA taking any appropriate enforcement. This approach allows the EPA to establish requirements tailored to local needs that can be effectively implemented through a partnership between the EPA and the Tribe. Delegation of the FARR helps Tribes gain experience in air quality management while deciding whether to adopt their own rules and regulations. To date several Tribes are assisting the EPA with implementation of one or more FARR rules under a delegation agreement with the EPA. A more detailed discussion on Tribal delegations can be found in 67 FR 11748, 11751-52, March 15, 2002. There are no substantive revisions proposed to the delegation provisions of the FARR.

The modular structure of the FARR also supports Tribes that choose to develop their own air quality program and submit it to the EPA for approval as a TIP. Under section 49.7(c) of the TAR, Tribes that are approved as meeting the eligibility criteria for Treatment as a State have the option of developing severable elements of a TIP and submitting those elements to the EPA for approval under the CAA. This allows the EPA to approve a Tribal rule covering a particular source type or activity and revoke the corresponding FARR rule from the FIP, while still leaving in place the FARR rules for other sources and/or activities. This approach allows for an easy incremental transition from Federal regulations to EPA-approved Tribal rules. As an example, on November 24, 2014, the EPA approved a TIP submitted by the Swinomish Indian Tribal Community establishing a Tribal program applicable to all persons within the exterior boundaries of the Swinomish Reservation regulating open burning (79 FR 69763, November 24, 2014). In the same action, EPA rescinded the FARR General rule for open burning (40 CFR 49.131) from the Swinomish Reservation FIP such that only the Swinomish Tribal open burning rule applies.

II. Proposed FIP Revisions

A. Proposed Revisions and New Rules

As discussed in Section I.A. of this preamble, the EPA is proposing to revise several of the rules originally promulgated in 2005 that comprised the original “base program” rules that apply to all Indian reservations in Idaho, Oregon, and Washington and is proposing to promulgate one new “base program” regulation. The EPA is also proposing to revise several of the “additional” reservation specific rules originally promulgated in 2005 that apply on some, but not all, Indian reservations in Idaho, Oregon, and Washington, and the EPA is proposing to promulgate several new additional rules that would only apply, in coordination and consultation with the relevant Tribes, on specific Indian reservations where the EPA finds that the rules are necessary or appropriate. See Section II.B. of this preamble for a more detailed discussion on the additional rules proposed for specific Indian reservations. Each of these proposed new sections address emission sources that contribute to high levels of particulate matter emissions and protect air quality from the potential for significant deterioration caused by the release of particulate matter.

The following paragraphs summarize the substantive proposed changes for each of the sections of the existing and new rules that will comprise the “base program” and the existing and new additional rules that apply only on specific Indian reservations.

Administrative Changes

The EPA has made minor administrative revisions throughout the FARR to ensure consistency in the use of terms and structure in similar provisions and to make other minor changes, where appropriate. For example, the proposed revisions replace the title of the FARR from “General

Rules for Application to Indian Reservations in EPA Region 10” with “General Rules for Application to Indian Reservations in Idaho, Oregon, and Washington” to better reflect the geographic scope of the FARR. In 40 CFR 49.121 Partial delegation of administrative authority to a Tribe, the revisions clarify that a delegation may cover all or part of an Indian Reservation. As another example, at the end of each section of the current rules is a subparagraph that lists terms used in that rule and points to 40 CFR 49.123 General provisions for the definitions of these terms. The EPA is proposing to remove these sections because this itemized list of defined terms has not proven to be helpful and in fact sometimes has contributed to confusion.

Each rule in the FARR includes a section describing the purpose of the rule. The EPA is revising the statements of purpose in some of the rules to make them consistent. The EPA has also made an administrative change in subpart M in the FIP for the Spokane Reservation. The EPA has added to subpart M language that is currently in 40 CFR part 52, subpart WW (Washington State Implementation Plan), making clear that the Spokane Indian Reservation is designated as a Class I area for the purposes of preventing significant deterioration of air quality. This proposed rulemaking does not propose changes to this designation, but instead simply adds the reference to the designation in the FIP for the Spokane Reservation because this designation affects new source review permitting on and near the Spokane Reservation.

Section 49.123 General provisions.

This section contains the definitions for specific terms used in the FARR, specifies the general requirements for testing, monitoring, recordkeeping and reporting, specifies requirements for performance tests, and identifies ASTM, International (ASTM) materials that are incorporated by reference in these rules.

Definitions.

The EPA is proposing to add, revise, or remove certain definitions in this section. The following new or revised terms are not discussed here but are discussed in the sections of this document that discuss the substantive revisions of the rules: the definition for

Indian reservation

is discussed in Section I.C. of this preamble and the definitions for

Cooking fire, Large open burn or burning, Non-title V operating permit, Orchard heating device, Recreational fire, and Small open burn or burning

are discussed in the relevant rule sections in Section II.A. of this preamble.

New definitions.

The EPA is proposing to add several new definitions to 40 CFR 49.123 to provide for a better understanding of the existing rule language and define applicable terms used in new sections of the FARR. The EPA proposes to add the definition

Hog fuel or hogged fuel,

which means wood chips or shavings, residue from sawmills, and other wood processing residue. This is intended as a clarification of the list of items included in the definition of

wood,

to carry out the EPA's original intent and to provide a more complete understanding of the items considered wood and derivatives of wood.

To implement the authority in 40 CFR 49.129(d) authorizing the EPA to make certain changes to testing, monitoring, recordkeeping and reporting requirements under the FARR, the EPA is cross-referencing the definitions of

Intermediate change to monitoring, Major change to monitoring, Minor change to monitoring, Minor change to recordkeeping/reporting,

and

Minor change to test method

in 40 CFR 63.90, which are used for similar purposes.

With the addition of 40 CFR 49.140 Rule for residential wood burning devices and 40 CFR 49.141 Rule for curtailment of residential wood burning devices for specific areas, the EPA is also introducing a new definition for

Residential wood burning devices

. This definition, for purposes of the FARR, means any wood burning device that supplies heat to a single-family residence or is installed in an individual unit of a multiple unit structure such as a condominium, apartment, duplex, multiplex, hotel, motel, or resort. This includes but is not limited to, wood stoves, fireplaces, fireplace inserts, residential wood heaters, residential hydronic heaters, residential forced air furnaces, and residential central heaters. The EPA also added definitions for

Residential wood heater, Residential central heater, Residential forced air furnace,

and

Residential hydronic heater

by cross-referencing the definitions of these same terms in 40 CFR 60.531 and 60.5473 of the EPA New Source Performance Standards for New Residential Wood Heaters and New Residential Hydronic Heaters and Forced-Air Furnaces as amended (40 CFR part 60, subpart AAA and 40 CFR part 60, subpart QQQQ).

Revised definitions.

In addition to adding new definitions, the EPA is also revising several definitions to provide clarification for better understanding and ease of implementation. The EPA is proposing to revise the definition for

Agricultural activities

to include specific examples of activities that are not considered agricultural activities (

e.g.,

hop drying in kilns and distillation of mint oil). As the EPA has previously advised the regulated community, the act of distilling mint or drying hops is not considered an agricultural activity under the FARR, and the proposed revisions help clarify this point.

In addition, to eliminate confusion about whether fugitive emissions from tilled land are or are not regulated, the EPA is proposing to remove the reference to tilled land as an example of fugitive dust in the

Fugitive dust

definition. Although EPA considers the tilling of land to generate fugitive dust, “agricultural activities,” which includes the tilling of land, are expressly exempt from 40 CFR 49.126 Rule for limiting fugitive particulate matter emissions. The EPA is revising the definition of

Grate cleaning

by clarifying that, in addition to allowing for the removal of ash from fireboxes, grate cleaning also allows for the removal of other non-combustibles (

e.g.,

rocks) from the firebox. Finally, the EPA is revising the definition of

forestry and silvicultural burns

by clarifying that the term includes prescribed fire, as that term is defined in 40 CFR 50.1(m).

See letter from EPA Region 10 to the Administrator of the Washington Hops Commission, regarding “Exemption for “Agricultural Activities” under the Federal Air Rules for Reservations (FARR),” date February 2, 2007; letter from EPA Region 10 to the Executive Director of the Washington Mint Commission, regarding “Exemption for “Agricultural Activities” under the Federal Air Rules for Reservations (FARR),” date February 5, 2007.

Deleted definitions.

The EPA is proposing to remove the definitions of

Garbage

and

Refuse

because they are no longer used to define what type of open burning is prohibited in 40 CFR 49.131. As discussed in this section, we are proposing to restructure 40 CFR 49.131 General rule for open burning by removing the list of what cannot be burned and instead providing a list of what is allowed to be burned. We are also proposing to remove the definition of

Smudge pot

because smudge pots are no longer directly referred to in the FARR. Instead, in 40 CFR 49.123 the newly proposed definition

Orchard heating device or orchard heater

includes smudge pots as an example of a type of orchard heating device.

Testing, monitoring, recordkeeping, and reporting.

During the course of implementing the FARR, questions arose regarding whether Region 10 could approve alternatives or exceptions to the requirements for testing, monitoring, recordkeeping, or reporting that are specified in the FARR. Unlike some EPA rules under the CAA (

e.g.,

40 CFR part 60, 40 CFR part 63), the FARR as originally enacted in 2005 did not include the authority or procedures for

requesting or approving alternatives, exceptions, waivers, and similar actions for testing, monitoring, recordkeeping, and reporting required by the FARR.

Region 10 is proposing to add such authority and procedures to 40 CFR 49.123 General Provisions. These new provisions would provide Region 10 with authorities similar to those found in 40 CFR parts 60 and 63. Specifically, the EPA proposes adding provisions to allow the approval of the use of a test method with minor changes in methodology, the approval of shorter sampling times or smaller sample volumes when necessitated by process variables or other factors, and the waiver of the requirement for source tests because the owner or operator of an affected source has demonstrated by other means to the Regional Administrator's satisfaction that the affected source is in compliance with the relevant standard. In addition, the EPA proposes adding authority to approve minor changes in methodology for the specified monitoring requirements and procedures, as well as intermediate or major changes or alternatives to any monitoring requirements or procedures. Lastly, the EPA proposes adding authority to approve minor changes to recordkeeping or reporting for the specified requirements and procedures, as well as to waive recordkeeping or reporting requirements upon written application to the Regional Administrator if, in the Regional Administrator's judgment, the affected source is achieving the relevant standard(s). A waiver of any recordkeeping or reporting requirement granted under this provision may be conditioned on other recordkeeping or reporting requirements deemed necessary by the Regional Administrator.

Performance tests.

The EPA is also proposing to add general provisions that specify requirements for performance tests that apply where the applicable standard or test method does not include such requirements. These requirements specify, for example, the number of valid test runs for a performance test and are consistent with the requirements EPA includes in permits and regulations where performance testing is required.

ASTM standards.

In 40 CFR 49.123(g), the EPA is proposing to update the ASTM standards that are used in and incorporated by reference in the FARR to reflect the most current version of the standards. See Section IV. of this preamble for further discussion of these revisions.

Section 49.124 Rule for limiting visible emissions. This section limits the visible emissions of air pollutants from certain air pollution sources to control emissions of particulate matter. The EPA proposes to revise this section in several respects. First, the EPA is clarifying that the rule limiting visible emissions does not apply to activities associated with single-family residences or residential buildings with four or fewer dwelling units. Although the current rule exempts furnaces and boilers used to heat single family residences and residential buildings with four or fewer dwelling units, the EPA never intended to regulate other emissions associated with residential activities, such as home workshops. The EPA is also clarifying that the rule does not apply to any particulate matter emissions from public roads and not just to fugitive dust from public roads. The EPA did not intend to regulate any emissions from public roads under the FARR. The current rule unintentionally limits the exemption to only fugitive dust. However, there are other emissions that come from roads that do not come from the tailpipe of a motor vehicle or nonroad vehicle, such as emissions associated with the application of dust suppressants. This change clarifies that all particulate emissions from public roads, not only fugitive dust, are exempt from the visible emission limit.

Second, the EPA is proposing to narrow the exemption for agricultural activities so that orchard heating devices are no longer exempt from the visible emissions limit. An orchard heating device is defined as a fuel burning device capable of being used for frost-prevention or protection in orchards, vineyards, field crops, or truck crops, and includes smudge pots and open-pot heaters. The diesel fuel sometimes used in these devices produces the thick heavy smoke that some believe prevents frost damage. Orchard heating devices are typically used in the spring when plants are budding and an atmospheric inversion traps cold air at the surface. The inversion also traps air pollutants, such as the thick smoke generated by some types of orchard heating devices, and can result in unhealthy levels of air pollution. Under the visible emissions rule currently in effect, orchard heating devices are covered by the exemption for agricultural activities because such devices are used as part of the usual and customary activities in growing crops. The EPA's ongoing evaluation of the FARR and input from Tribes on reservations where orchard heating devices are used identified concerns with air pollution from these unregulated sources of particulate matter.

This proposed revision would therefore require that visible emissions from orchard heating devices not exceed 20% opacity, averaged over any consecutive 6-minute period, and would apply to any person who owns or operates an orchard heating device. We expect that there are categories of orchard heating devices that will not be capable of complying with the 20% opacity standard and this action, if finalized, would therefore effectively prohibit the continued use of such devices. Since the FARR was promulgated in 2005, however, cleaner and more effective methods of orchard heating have become more readily available. Newer alternatives such as propane-powered fans and propane heaters are becoming accepted and reliable alternate methods of orchard heating. These cleaner devices are capable of complying with the visible emission limit and, as such, will help minimize air pollution in areas that are already dealing with high levels of PM

2.5

and PM

. Other State and local air agencies have similar provisions.

To ensure current users of orchard heating devices that cannot comply with the visible emission standard have adequate time to find alternatives to the use of such devices, the proposed provision of 40 CFR 49.124 requiring that visible emissions from an orchard heating device not exceed 20% opacity would not go into effect until 3 years after this revision is finalized and becomes effective. Furthermore, to ensure that this new requirement does not cause an unreasonable burden on any person, the rule includes a provision that would allow the Regional Administrator to grant a two-year extension (with no limit on the number of extensions) provided that the person demonstrates that there is no alternative that is reasonably available that can comply with the 20% opacity limit. In the interim, the EPA intends to work with Tribal air programs to provide outreach to orchards affected by this rule and identify sources of funding that may help lower the costs for alternate methods of orchard heating.

Section 49.125 Rule for limiting emissions of particulate matter. The purpose of this section is to reduce particulate matter by setting emission limits for certain air pollution sources that operate within an Indian reservation. The EPA is proposing language to clarify that this rule only applies to emissions from a stack as defined in 40 CFR 49.123. The EPA is

also proposing to revise the list of sources specifically exempt from this rule in several respects. As with the limitation on visible emissions discussed in 40 CFR 49.124, the EPA never intended to regulate residential activities, such as home workshops under this section. We are therefore proposing to add an exemption for activities associated with single-family residences or residential buildings with four or fewer dwelling units. Second, with the clarification that this rule only applies to particulate matter emissions from a stack, the EPA has deleted open burning from the list of exempt sources, because an open burn, by definition, does not have a “stack.” Third, with the clarification that this rule only applies to particulate matter emissions from a stack, the EPA is adding orchard heating devices to the list of exempt sources. Unlike the Rule for Limiting Visible Emissions (40 CFR 49.124), this rule does not exempt agricultural activities. By its terms, this section applies only to stationary sources with stacks. (see 40 CFR 49.125(d)(1), (2), and (3)). Most a

gricultural activities,

as defined in the FARR, are not subject to the numeric particulate matter emission limits because such activities do not have “stacks” that emit air pollution. However, some orchard heating devices, although within the definition of

agricultural activities,

do have short “stacks.” The EPA is therefore adding orchard heating devices to the list of exemptions so that orchard heating devices will continue to be exempt from the numeric particulate matter emission limits and other requirements of this section. Given that orchard heating devices are relatively small in comparison to many other stationary sources with stacks, are portable, are used only seasonally, and that conducting source testing using the reference test methods in this section on orchard heating devices could be challenging, the EPA believes that limiting particulate matter emissions from orchard heating devices with a limitation on visible emissions under 40 CFR 49.124, rather than a limit on particulate matter emissions, is appropriate.

In addition to proposing to add these two exemptions to the applicability of this section, the EPA is updating the reference method for determining compliance to explicitly provide that EPA Methods 1 through 4, as appropriate, must be used to calculate the volumetric flow, oxygen content, and moisture content of the samples in conjunction with EPA Method 5. Although EPA Method 5 specifies when the use of EPA Methods 1 through 4 are required, the EPA is making the reference explicit in this section for ease of use. A complete description of the test methods discussed in this paragraph can be found in appendix A to 40 CFR part 60.

Finally, the EPA is proposing to correct an inadvertent error in the particulate matter emission limits that resulted from failure to use the same number of significant figures for the grams per dry standard cubic meter (g/dscm) limits and the grains per dry standard cubic feet (gr/dscf) limits. The g/dscm limits had two significant figures whereas the gr/dscf limits only had only one significant figure, which resulted in the limits being slightly different in stringency. EPA is proposing to correct this error by adding a second significant figure to the gr/dscf limits.

Section 49.126 Rule for limiting fugitive particulate matter emissions. This section limits fugitive particulate matter emissions by requiring reasonable precautions to prevent such emissions. Under the current language of the fugitive particulate matter emissions rule, it is unclear when portable sources, such as portable rock crushers and asphalt plants, are required to conduct their fugitive particulate emission surveys and prepare and update their written plans to prevent fugitive particulate matter emissions. Therefore, the EPA is proposing revisions that specify when the surveys and plans are required to be conducted and submitted for portable sources in a manner that is consistent with the temporary and transient nature of portable sources. For example, the EPA is proposing to specifically require portable sources to conduct a survey within 7 days after beginning operation at a new location and to conduct an annual survey thereafter to identify sources of fugitive particulate matter emissions. Additionally, for portable sources, the written plan specifying the reasonable precautions and procedures to prevent fugitive particulate matter emissions is required prior to beginning operation at a new location and must be updated within 7 days of a completed survey. The EPA is also clarifying that, for all other sources, the written plan to prevent fugitive emissions must be prepared within 30 days after completing the required survey. All plans for subject sources must be reviewed and updated by the owner or operator at least annually after each survey and more frequently if warranted due to changes.

The EPA is also proposing to add language to clarify that the written plan must be implemented as soon as practicable. The current rule requires a source to implement its written plan, including installing any control measures that were identified as reasonable precautions, but does not include language regarding when the plan needs to be implemented.

In addition, if the facility is required to be registered under 40 CFR 49.138, the EPA is proposing to require that a copy of the most recent fugitive particulate matter survey and current fugitive particulate matter plan be submitted with the annual registration. Under the proposed revisions, a new source or new operation will be required to submit a copy of the fugitive particulate matter survey and plan to the EPA within 90 days of beginning operation. The proposed revisions also provide that sources must maintain a copy of the survey and plan on site.

Lastly, the EPA is proposing to establish that a revision to the plan may be required if the EPA determines that the plan is not adequate to prevent or minimize fugitive particulate matter emissions. All of the proposed revisions are designed to enhance compliance and enforceability of the rule.

Section 49.127 Rule for woodwaste burners. This section phases out the operation of woodwaste burners, and in the interim limits the visible emissions from woodwaste burners. There are no proposed changes to this section except for the revisions with respect to the applicability date discussed here and non-substantive and other administrative changes discussed elsewhere in this preamble. This section continues to only apply on the Colville Reservation and on the Nez Perce Reservation, as shown in Table 2 in section B of this preamble. The effective date of this section for any lands held in trust for the Colville or Nez Perce Tribes that have not been formally designated as a reservation, will be the effective date of the final rule and, as such, any woodwaste burners that are located on such lands will be required to be dismantled within 2 years from the effective date of the final rule.

Section 49.128 Rule for limiting particulate matter emissions from wood products industry sources. The purpose of this section is to limit the condensible particulate matter from high temperature processes at wood products facilities that would not be captured by the test method required for demonstrating compliance with the particulate matter emission limits in 40 CFR 49.125. This section only applies to emission units at wood products facilities that emit at high temperatures. Currently 40 CFR 49.128 specifies that

the reference method for determining compliance with the PM

limits is EPA Method 202 in conjunction with EPA Method 201A. These methods are found in appendix M of 40 CFR part 51.

The EPA is proposing to update the reference method for determining compliance. The EPA is clarifying that EPA Methods 1 through 2H, as appropriate, must be used to calculate the volumetric flow of the samples in conjunction with EPA Methods 202 and 201A. A complete description of these additional test methods can be found in appendix A to 40 CFR part 60.

This section continues to apply on the Colville Reservation and the Nez Perce Reservation, as shown in Table 2 in Section B of this preamble. The EPA is also proposing that 40 CFR 49.128 be applied on the Coeur D'Alene Reservation because the operations of a wood products facility located on the Coeur D'Alene Reservation may contribute to elevated levels of particulate matter.

Section 49.129 Rule for limiting emissions of sulfur dioxide. This section limits the amount of sulfur dioxide (SO

) that may be emitted from air pollution sources operating within an Indian reservation. The EPA is proposing to clarify that this rule only applies to emissions from a stack.

As under 40 CFR 49.125 and for the same reasons, we are also proposing to clarify that orchard heating devices are exempt from this section.

The EPA is also proposing to update the reference methods for determining compliance with the SO

emission limits established in the current rule. The EPA is clarifying that EPA Methods 1 through 4, as appropriate, must be used to calculate the volume, oxygen content and moisture content of the sample in conjunction with EPA Methods 6, 6A, 6B and 6C. A complete description of these additional test methods can be found in appendix A to 40 CFR part 60.

Section 49.130 Rule for limiting sulfur in fuels. This section limits the amount of sulfur contained in fuels that are burned at stationary sources operating within an Indian reservation to control emissions of SO

. The EPA is proposing to update the reference methods used to determine compliance with the sulfur emission limits for fuel. We are updating the reference methods in paragraph (e) of this section to incorporate into this rule the most recent versions of the ASTM methods for determining the amount of sulfur in fuel oil or liquid fuels, coal, solid fuels, and gaseous fuels.

In addition, the EPA proposes to revise the sulfur limit for gaseous fuels by deleting the 1.1 grams per dry standard cubic meter (dscm) limit and retaining only the 400 parts per million (ppm) limit. The current rule establishes a limit for sulfur in gaseous fuels in two different sets of units (grams/dscm and ppm) that were intended to be equivalent in stringency. However, because the proper number of significant figures for the grams/dscm limit were not included when the FARR was promulgated, the two are not equivalent. This resulted in confusion as to whether sources had to comply with both limits, the more stringent limit, or a limit of their choice. The proposed revisions correct this error and make this standard consistent with the EPA's intent in promulgating this emission standard in 2005.

Finally, the EPA is proposing to remove the language in 40 CFR 49.130(f)(1)(iii) that provided sources burning coal or solid fuels the opportunity to request a waiver of the monitoring requirement or request an alternative sampling program because generally applicable language for requesting alternatives and waivers is now included in 40 CFR 49.123 General Provisions.

ASTM standards. In 40 CFR 49.130(g), the EPA is proposing to update the ASTM standards that are used in and incorporated by reference in the FARR to reflect the most current version of the standards. See Section IV. of this preamble for further discussion of these revisions.

Section 49.131 General rule for open burning. This section phases out the operation of woodwaste burners, and in the interim limits the visible emissions from woodwaste burners. There are no proposed changes to this section except for the revisions with respect to the applicability date discussed here and non-substantive and other administrative changes discussed elsewhere in this preamble. This section continues to only apply on the Colville Reservation and on the Nez Perce Reservation, as shown in Table 2 in section B of this preamble. The effective date of this section for any lands held in trust for the Colville or Nez Perce Tribes that have not been formally designated as a reservation, will be the effective date of the final rule and, as such, any woodwaste burners that are located on such lands will be required to be dismantled within 2 years from the effective date of the final rule, as well as in the following burn permit sections.

The EPA also notes that nothing in the FARR or the proposed revisions restricts the exclusion of air quality monitoring data influenced by exceptional events as provided in 40 CFR 50.14.

Section 49.132 Rule for large open burning permits. The FARR promulgated in 2005 had a General rule for opening burning (discussed in 40 CFR 49.131), which specified conditions under which open burning could be conducted but did not require prior approval. The FARR also had a rule setting forth a program for permitting, or granting prior approval of, general open burns. This rule was designed only for Indian reservations where the EPA, in coordination and consultation with the relevant Tribe, determined that a general open burning permitting program was necessary or appropriate, and was generally expected to include a delegation of authority from the EPA to the Tribe, under 40 CFR 49.122 for implementation of the general open burning permit program (67 FR 11748, 11751, March 15, 2022). This general open burning permit rule was promulgated to apply on the Nez Perce Reservation and the Umatilla Indian Reservation. These Tribes have been implementing the rule for general open burning permits on their respective Indian reservations under a delegation with the EPA for more than 15 years.

The EPA is proposing to revise the rule for permitting general open burns by replacing it with three rules for different types of open burns and different types of open burning approval processes: 40 CFR 49.132 Rule for large open burning permits, 40 CFR 49.142 Rule for small open burning annual permits and 40 CFR 49.143 Permit by rule for small open burns. The EPA is proposing these different open burning permit options based on input from these Tribes, other Tribes that have expressed interest in seeking delegation of permitting general open burning on their Indian reservations, and the EPA's experience in working with the delegated Tribes in implementing this rule. The EPA has concluded that options that distinguish between large and small open burns and, for small open burns, allow for an annual permit or coverage under a permit by-rule better allow for the scaling of requirements to the potential air pollution impact of open burns and the resources of implementing agencies.

Only materials that may be burned under 40 CFR 49.131 General rule for open burning may be burned in a permitted large or small open burn. As under 40 CFR 49.131, compliance with the permitting requirements rests with the person who is conducting the burn as well as the owner and lessee, if any, of the property on which the burn is

conducted to ensure parties that may be responsible for burning decisions on a given property are responsible for complying with the burn permitting rules, where applicable.

The proposed “large open burning” permit rule is very similar to the current general open burning permit rule in 40 CFR 49.132. The proposed revisions define a “large open burn” or “large open burning” as the open burning of a single pile of the specified materials greater than 10 feet in diameter or more than 60 feet of ditch bank or fence line vegetation. These are the criteria that have been used by the EPA and delegated Tribal authorities that have been implementing the general open burning permit program under the FARR to distinguish between large and small open burns.

As revised, this section would require that persons subject to the rule must (1) have a permit for large open burning; (2) have approval to burn on the day(s) of the burn(s); (3) ensure that the person conducting the burn is familiar with the requirements of the permit; (4) ensure that the permit is available on-site during the open burn; (5) conduct the open burn in accordance with the terms and conditions of the permit; and 6) comply with the General rule for open burning (40 CFR 49.131) or the EPA-approved Tribal open burning rules in a TIP. To ensure consistency with the use of forms under rules of the Office of Management and Budget, the revisions clarify that the application must be submitted on forms approved by the EPA. The revisions add a requirement that applications for large open burns include a description of the burning method or methods to be used, the amount of material to be burned with each method, and the means of ignition.

The proposed revisions clarify the process for getting approval to burn on the requested days under the permit. The revisions specify that the person conducting the large open burn must request approval for the burn at least one day before the burn in the manner specified in the permit. As under the current open burning permit rule, in determining whether to authorize a large open burn for a particular day or days, the Regional Administrator or delegated Tribal authority will take into consideration relevant factors including, but not limited to, the size, duration, and location of the proposed open burn; the current and projected air quality conditions; forecasted meteorological conditions; other scheduled burning activities in the surrounding area; and other factors indicating whether or not the proposed open burn can be conducted without causing or contributing to an exceedance of a national ambient air quality standard. When relevant, the Regional Administrator or delegated Tribal authority will also consider whether or not the proposed open burn can be conducted without causing or contributing to any other adverse impact on air quality. These other adverse impacts on air quality would be specific to the particular burn, such as the type of burn and its location, the local meteorology, and the areas expected to be impacted by the smoke. The EPA proposes to add a provision allowing the Regional Administrator or delegated Tribal authority to revoke the approval to burn based on changes in these air quality considerations. In such cases, the permittee would be required, after being contacted about the revocation, to immediately extinguish the fire if safe to do so, discontinue lighting the fire, and withhold additional material such that the fire burns down, as applicable.

The exemptions to the requirement to obtain a large open burning permit are generally the same as the exemptions in the General rule for open burning (40 CFR 49.131) with a few exceptions. Recreational fires meeting the definition of “large open burn” are exempt from permitting. In addition, agricultural burns and forestry and silvicultural burns are exempt from the Rule for large open burning permits (40 CFR 49.132).

The large open burning permit rule will continue to apply on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2 in Section B of this preamble. The EPA is also proposing that 40 CFR 49.132 be newly applied on the Yakama Reservation, as shown in Table 2 of this preamble. The EPA anticipates that the Nez Perce Tribe and the Umatilla Indian Tribe will update their EPA delegation to implement this revised rule on their respective reservations. The EPA also anticipates that the Confederated Tribes and Bands of the Yakama Nation will seek EPA delegation to implement this revised rule on their reservation.

Section 49.142 Rule for small open burning annual permits. The EPA is also proposing to establish a permitting program option requiring an annual permit for “small open burning” within an Indian reservation. The proposed revisions define a “small open burn” or “small open burning” as the open burning of a single pile of the specified materials that is 10 feet or less in diameter or 60 feet or less of ditch bank or fence line vegetation. These are the criteria that have been used by the EPA and delegated Tribal authorities that have been implementing the general open burning permit program under the FARR to distinguish between large and small open burns.

This proposed new rulemaking would require the owner or lessee of property on an Indian reservation where this section applies and on which small open burns will be conducted to apply for and obtain an annual permit for open burning. To ensure consistency with the use of forms under rules of the Office of Management and Budget, the proposed rulemaking specifies that the application must be submitted on forms approved by the EPA. The obligations to comply with the permit and other requirements of this section would extend to any owner and lessee of the property and any person conducting a small open burn on the property. The permit would cover all small open burns conducted at a given property for the calendar year in which it is issued, without the need to apply for and obtain a burn permit for each individual small open burn. Should the owner or lessee of the property covered by the annual permit change within the year, a new application and permit would be required.

To conduct a small open burn under this permit on any particular day, persons subject to this section must (1) ensure that the person conducting the burn is familiar with the requirements of the permit; (2) ensure that the permit is available on-site during the open burn; (3) conduct the open burn in accordance with the terms and conditions of the permit; (4) comply with the General rule for open burning (40 CFR 49.131) or the EPA-approved Tribal open burning rules in a TIP; and (5) prior to igniting a burn, check whether burning is allowed for the area on that day and complete the burning within the designated time period. The proposed exemptions are generally the same as for large open burning permits.

To determine if burning is allowed under an annual permit on any given day, the Regional Administrator or delegated Tribal authority will identify and publicize each day as a “burn day” or a “no burn day” and, for a burn day, specify the hours and the geographic area for which burning is allowed. When deciding whether to call a burn day, the Regional Administrator or delegated Tribal authority will take into consideration relevant factors, including but not limited to, the current and projected air quality conditions, the forecasted meteorological conditions, other scheduled burning activities in the surrounding area and other factors indicating whether or not open burning can be conducted without causing or contributing to an exceedance of a national ambient air quality standard.

When relevant, the Regional Administrator or delegated Tribal authority will also consider whether open burning can be conducted without causing or contributing to any other adverse impact on air quality.

A permit issued under this section expires at the end of the calendar year unless it is revoked prior to that time based on a written notice to the permit holder finding that the permit must be revoked or revised to ensure compliance with this section, 40 CFR 49.131 General rule for open burning or the applicable EPA-approved Tribal open burning rule, or to protect the public health and welfare.

This option for a single permit for all small open burns conducted on a specific property within a calendar year greatly reduces the burden on individuals who would otherwise need to apply for a permit multiple times when conducting more than one burn during the calendar year. Permit issuance once per year also reduces the workload for the EPA and delegated Tribal air programs, and in turn allows for burn approvals to be processed more quickly, benefiting all parties involved.

In coordination and consultation with the affected Tribes, the EPA is proposing that 40 CFR 49.142 apply on the Umatilla Indian Reservation, as shown in Table 2 in Section B of this preamble. This is, in essence is a continuation of the burn permit program that the Umatilla Indian Tribe has been implementing on its Reservation under a delegation with the EPA for many years. The EPA is also proposing that 40 CFR 49.142 apply on the Yakama Reservation, as shown in Table 2 of this preamble. As with the Rule for large open burning permits (40 CFR 49.132), the EPA anticipates that these Tribes will either update their EPA delegation or seek EPA delegation to implement this new section on their reservation.

Section 49.143 Permit by rule for small open burns. The EPA is also proposing another option for small open burns: a permit by rule that would apply within a specific Indian reservation. Like 40 CFR 49.142 Rule for small open burning annual permits, the obligation to submit an application (referred to in this section as a “request for coverage”) applies to the owner or lessee of the property on which the burning will be conducted, but other compliance obligations extend to any person conducting a small open burn on an Indian Reservation where this section applies, as well as to the owner or lessee of the subject property. The proposed exemptions under both rules are also the same.

In contrast to the Rule for small open burning annual permits (40 CFR 49.142), this section would require the owner or lessee of the property on which small open burning will be conducted to submit a one-time request for approval to burn. This “approval of coverage” under this permit by rule would remain valid for the property until the owner or lessee changes, at which time a new request for approval of coverage would be required. Another key difference from the rule for annual permits for small open burns is that the approval under this permit by rule would be immediately effective, with no explicit approval required by the implementing agency. Note, however, that a request for approval of coverage may be denied if it is not consistent with the requirements of this section, 40 CFR 49.131 General rule for open burning or the applicable EPA-approved Tribal open burning rule. In addition, prior to conducting a burn on a given day, a person subject to this section must confirm that the day is a “burn day,” as further explained in the following paragraphs.

The owner or lessee of the property on which small open burns will be conducted under this permit by rule must apply for approval of coverage. To conduct a small open burn, persons subject to this section must (1) ensure that the person conducting the burn is familiar with the requirements of the approval of coverage; (2) ensure that the approval of coverage is available on-site during the open burn; (3) conduct the open burn in accordance with the approval of coverage; (4) comply with the General rule for open burning (40 CFR 49.131) or the EPA-approved Tribal open burning rules in a TIP; and (5) prior to igniting a burn, check whether burning is allowed for the area on that day and complete the burning within the designated time period.

As under the Rule for small open burning annual permits (40 CFR 49.142), to determine if burning is allowed on any given day, the Regional Administrator or delegated Tribal authority will identify and publicize each day as a “burn day” or a “no burn day” and for a burn day, specify the hours and the geographic area for which burning is allowed. When deciding whether to call a burn day, the Regional Administrator or delegated Tribal authority will take into consideration relevant factors including, but not limited to, the current and projected air quality conditions, the forecasted meteorological conditions, other scheduled burning activities in the surrounding area and other factors indicating whether or not open burning can be conducted without causing or contributing to an exceedance of a national ambient air quality standard. When relevant, the Regional Administrator or delegated Tribal authority will also consider whether open burning can be conducted without causing any other adverse impact on air quality.

This proposed rulemaking is also expected to reduce the burden on individuals of filling out multiple burn applications when conducting more than one burn during the period of property ownership, as well as the burden on the EPA and the delegated Tribe in implementing the permit program. The reduction in burden would be expected to be even greater than under the Rule for small open burning annual permits (40 CFR 49.142) because the application process is a one-time action and no action by the implementing agency is required to make the approval of coverage under the permit by rule effective as to a specified property.

In coordination and consultation with the affected Tribe, the EPA is proposing that 40 CFR 49.143 apply on the Nez Perce Reservation, as shown in Table 2 in Section B of this preamble. As with the other burn permit rules, the EPA anticipates that the Nez Perce Tribe will update their EPA delegation to implement this burn permit program on its reservation.

Section 49.133 Rule for agricultural burning permits. This section establishes a permitting program for agricultural burning within an Indian reservation. As with the previous open burning permit rules, the EPA is proposing to expand the applicability of this section to apply to lessees of land on which agricultural burning is conducted to ensure parties that may be responsible for burning decisions on a given property are responsible for complying with the requirements of this section. To ensure consistency with the use of forms under rules of the Office of Management and Budget, the revisions clarify that the application must be submitted on forms approved by EPA. The EPA is clarifying the air quality criteria considered in determining whether a burn permit will be issued consistent with the same criteria in 40 CFR 49.132 Rule for large open burning permits. Consistent with the other burn permit rules, the revisions provide that an application must be submitted at least 1 day prior to the proposed burn. The EPA is also clarifying that the permit authorizes burning only for the date(s) and time(s) specified in the permit, the procedures for obtaining approval to burn under the permit, and

that the permit may include other necessary provisions to ensure compliance with 40 CFR 49.131 General rule for open burning or the EPA-approved applicable Tribal open burning rule, as well as to protect health and welfare.

This section continues to apply on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2 in Section B of this preamble. The EPA is also proposing that 40 CFR 49.133 be newly applied on the Yakama Reservation, as shown in Table 2 of this preamble. The EPA anticipates that the Nez Perce Tribe and the Umatilla Indian Tribe will update their EPA delegations to implement this revised section on their Indian reservations. The EPA also anticipates that the Confederated Tribes and Bands of the Yakama Nation will seek EPA delegation to implement this revised section on their reservation.

Section 49.134 Rule for forestry and silvicultural burning permits. This section establishes a permitting program for forestry and silvicultural burning within an Indian reservation. The EPA is proposing the same revisions to this section as to the Rule for agricultural burning permits (40 CFR 49.133).

As discussed in section D. of this preamble, Relationship between Part 49, Subpart C and Subpart M, this rulemaking does not apply on all reservations, as does the General Rule for Open Burning (40 CFR 49.131), but instead applies on those reservations where it was determined that a permitting program, in addition to the General Rule for Open Burning (40 CFR 49.131), is appropriate to better assure that emissions from forestry and silvicultural burning do not cause or contribute to a violation of the NAAQS. Importantly, although this rule requires, where it applies, permits for prescribed fires as that term is defined in the rule for “Treatment of Air Quality Monitoring Data Influenced by Exceptional Events” (40 CFR 50.14), 40 CFR 49.134 is not a smoke management program, nor does it require burn managers to employ basic smoke management practices as listed in Table 1 to 40 CFR 50.14. However, as previously noted, nothing in the FARR or the proposed revisions restricts the exclusion of air quality monitoring data influenced by prescribed fires that meet the criteria set forth in 40 CFR 50.14(b)(3).

This section continues to apply on the Nez Perce Reservation and the Umatilla Indian Reservation, as shown in Table 2 in Section B of this preamble. As with the Rule for agricultural burning permits (40 CFR 49.133), the EPA anticipates that these Tribes will update their EPA delegation to implement this revised section on their Indian reservations.

Section 49.135 Rule for emissions detrimental to public health or welfare. Under this section, an owner or operator of an air pollution source is not 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 (1) causes or contributes to a violation of any NAAQS, or (2) is presenting an imminent and substantial endangerment to public health or welfare, or the environment. This section provides the EPA with the authority to require the installation of air pollution controls or other measures in order to reduce emissions to protect the NAAQS or prevent imminent and substantial endangerment. The section currently allows the EPA to require such controls through either a permit to construct or a non-Title V operating permit under 40 CFR 49.139. Since the FARR was enacted, the EPA has promulgated rules for permits to construct in Indian country (the Indian Country Minor NSR rules at 40 CFR 49.151 through 49.164 and the Federal Major New Source Review Program for Nonattainment Areas in Indian Country at 40 CFR 49.166 through 49.173). Region 10 has determined that it is not appropriate to use permits to construct to implement 40 CFR 49.135 because the Indian Country Minor NSR rules apply only to projects at existing sources that increase emissions and do not include provisions for the permitting authority to require reductions in emissions when there is not a proposed modification to the existing source. Therefore, the EPA is proposing to remove permits to construct as an option for implementing this section. Requirements under this section would be established solely through issuance of a non-Title V operating permit under 40 CFR 49.139.

This provision currently provides that nothing in the provision shall be construed to impair any cause of action or legal remedy of any person, or the public, for injury or damages arising from the emission of any air pollutant in such place, manner, or amount as to constitute a common law nuisance. The EPA is proposing to revise the reference to “common law nuisance” to “nuisance under any other applicable law” to ensure this provision includes applicable statutory and regulatory nuisance provisions as well as common law nuisance.

Section 49.137 Rule for air pollution episodes. This section establishes procedures for preventing and addressing the excessive buildup of certain NAAQS pollutants within an Indian reservation to prevent the occurrence of an air pollution emergency. It establishes criteria for issuing air stagnation advisories. It also establishes air pollution action levels and the action level triggers (air quality levels) that are used for the declaration of an air pollution alert, air pollution warning, or air pollution emergency. The current air pollution action level triggers are based on 40 CFR part 51, appendix L (Example Regulations for Prevention of Air Pollution Emergency Episodes) and currently do not include action level triggers for PM

2.5

We are proposing to revise the current action level triggers for the three action levels (air pollution alert, air pollution warning, and air pollution emergency) to align with the Air Quality Index (AQI) categories (unhealthy, very unhealthy, and hazardous) and the associated concentration thresholds. The AQI categories and concentration thresholds are found in Table 2 of 40 CFR part 58, appendix G, Uniform Air Quality Index and Daily Reporting. This revision will also add action level triggers for PM

2.5

. Based on input from Tribes, and after careful consideration, the EPA is proposing this approach for several reasons. First, if the NAAQS and corresponding AQI categories and concentrations are ever revised, the more generalized language would automatically be up to date. Second, the AQI is based on short term concentrations, which are more appropriate for action level triggers. Finally, the action level triggers will now better align with the health messaging associated with the AQI categories and concentrations, which are publicly available and widely used. The EPA is also clarifying that air pollution alerts, air pollution warnings, and air pollution emergencies can be declared under situations other than just periods of stagnant air such as high wind events associated with dust storms and wildfires. Finally, the EPA is proposing revisions to update the description of the methods the EPA will consider in order to announce an air stagnation advisory, an air pollution alert, an air pollution warning, or an air pollution emergency, such as posting the announcement to Region 10's social media, and to clarify the method for terminating a declaration.

Section 49.138 Rule for the registration of air pollution sources and the reporting of emissions. Under the current rules, any person who owns or operates a 40 CFR part 71 source, a source subject to a standard under CAA sections 111 or 112, or any other air pollution source not expressly

exempted from this section is required to annually register the source with the EPA and report emissions. This section was intended to ensure a current and accurate record of the emissions from non-trivial air pollution sources operating within an Indian reservation is developed and maintained. Subject sources were required to register by February 15, 2007, and “new air pollution sources” must register within 90 days after beginning operation. A “new air pollution source” is currently defined as a source that begins actual construction after the effective date of the original rule (70 FR 18074, June 7, 2005). Any other source is considered an existing source.

Shortly after the EPA began implementing 40 CFR 49.138, it became apparent that the rule was unintentionally overbroad. Because 40 CFR 49.138 is structured such that the 2 ton per year emissions exemption applies only to “any other air pollution source,” the current language could be read to require very small sources subject to CAA section 111 or section 112 standards to register. For example, the current rule language could require wood stoves and small emergency generators subject to New Source Performance Standards under section 111 to register. This section could also be read to require some sources subject to National Emission Standards for Hazardous Air Pollutants under CAA section 112 to register even though they would have no (or trivial) emissions of the air pollutants that are required to be reported under the registration rule.

To address this unintended consequence, Region 10 issued an interpretative guidance document in 2005 to clarify the EPA's expectation that non-Title V sources that were subject to CAA section 111 or 112 standards were required to register only if they had the potential to emit more than 2 tons per year of any of the listed air pollutants.

In this rulemaking, Region 10 is proposing to revise 40 CFR 49.138 to be consistent with this interpretation. We are proposing to remove the language that required sources subject to CAA section 111 or 112 standards to register regardless of the level of emissions and are proposing to add language that any air pollutant source that has the potential to emit more than 2 tons of the listed air pollutants is required to register unless it is covered by one of the categorical exemptions. Because the 2 ton per year criterion would be an applicability provision, we are proposing to remove that criterion from the list of exemptions.

“Determining if Your Business Needs to Register with EPA as an Air Pollution Source,” EPA Region 10 (October 5, 2005).

In addition to this change, we are proposing revisions to the registration rule to be generally consistent with the applicability provisions of the Indian Country Minor NSR Rule (40 CFR 49.151 through 49.164), which was promulgated after the FARR was promulgated in 2005 and which applies to new and modified minor stationary sources and to minor modifications at existing major stationary sources where the increase in emissions is above specified thresholds. Currently, the FARR registration rule includes sources required to have40 CFR part 71 operating permits in the list of sources required to register. Since the Indian Country Minor NSR Rule was promulgated after the 2005 promulgation of the FARR, the EPA is proposing to revise the applicability criteria in 40 CFR 49.138 to include sources required to have a permit under the Indian Country Minor NSR Rule, as well as sources required to have a non-Title V operating permit under 40 CFR 49.139. These additions will help accomplish the goal of this section (ensuring a current and accurate inventory of emissions from non-trivial air pollution sources) by requiring all sources on Indian reservations that are required to have permits under the Clean Air Act to register under the FARR.

The EPA is also proposing revisions to the list of sources specifically exempt from the registration rule. The registration rule contains a list of source categories that are exempt from registration because emissions from sources in the category are likely to be trivial (

e.g.,

consumer use of office equipment and products) or because a registration program is not appropriate for sources in the category (

e.g.,

mobile sources). When the EPA promulgated the Indian Country Minor NSR Rule, it exempted from the program various emissions units and activities that were based, in part, on the FARR registration exemptions but included some additional categorical exemptions that are not currently in the FARR registration rule. See 40 CFR 49.153(c). The EPA has considered these additional categories and is proposing to add two of them to the FARR registration rule: (1) emergency generators, designed solely for the purpose of providing electrical power during outages, provided the total maximum manufacturer's site-rated horsepower of all units is below 1000; and (2) stationary internal combustion engines with a manufacturer's site rated horsepower of less than 50. Although the potential to emit pollutants of such units would likely be less than the 2 ton per year applicability threshold, adding them to the list of categorically exempted sources reduces the burden of having to do emission calculations to confirm the exemption.

Another area of revisions to this rule relates to the date by which registration is required. As discussed previously in section C of this preamble, the EPA is proposing to extend the requirements of this section to the Cowlitz Indian Reservation, the Snoqualmie Indian Reservation, and lands held in trust for the Samish Indian Nation and to clarify that this rule also applies to all lands held in trust for a Tribe in Idaho, Oregon, and Washington that have not been formally designated as a reservation. The EPA is therefore revising the registration provision to provide a date by which existing sources in such areas are required to register. Under the proposed revisions, subject sources located on the Tribal lands listed in this section in existence on the effective date of the FARR revisions would be required to register by no later than 6 months after the effective date of FARR revisions. “New air pollution sources” continue to be required to register within 90 days after beginning operation. The EPA has also revised the definition of “new air pollution source” to accommodate the additional Tribal lands proposed for coverage under these FARR revisions. All subject sources continue to be required to re-register each year and provide updates on any changes to the information provided in the previous registration and promptly report any changes in ownership, location, or operation.

The EPA is also proposing to update provisions specifying the information required to be submitted in the initial and annual registration to include more commonly used current technology (

e.g.,

email rather than facsimile, Global Positioning System coordinates rather than latitude and longitude). We are also proposing to require that the copy of the most recent fugitive particulate matter survey and current fugitive particulate matter plan be submitted with the registration to better assure compliance with the requirements of 40 CFR 49.126 Rule for limiting fugitive particulate matter emissions.

The EPA is also proposing to update the method for submitting the initial and annual registrations. Currently, all registrants can register and report either through a paper application or through the FARR Online Reporting System (FORS). The online database was

implemented in 2016 to simplify the registration process from year to year. Through the online database, the EPA is collecting the same information from facilities as it does from paper registrations. The benefits of the online registration include improved recordkeeping by allowing better and faster access to previous registrations, populating each annual registration with existing, basic information about the facility and decreasing the amount of time and resources needed to report emissions after initial registration. In 2016 (the emission reporting year for calendar year 2015), when FORS became the preferred method of registration, 88 facilities out of a total of 154 facilities, or 57%, registered online. In 2020 (the emission reporting year for calendar year 2019), approximately 117 facilities out of 138 facilities, or 85%, chose to register online. As the Federal government moves toward e-government, in an attempt to streamline and simplify current procedures through electronic reporting, Region 10 is proposing to require all registration information and reports be submitted online through FORS within the EPA's Central Data Exchange (CDX), at

https://cdx.epa.gov.

Exceptions will be made if a facility attains prior written approval from Region 10 to submit a paper application.

The EPA is also proposing clarifying revisions to the requirement to report any relocation of the source in 40 CFR 49.138 (d)(5). As revised, 40 CFR 49.138 makes clear that report of relocation is required whether the relocation is within, off, or onto an Indian reservation, but that more limited information is required to be reported when the source is moving to a site outside of an Indian reservation in Idaho, Oregon, and Washington. EPA notes that relocation of a source may also trigger preconstruction permitting requirements. In addition, EPA is making a revision to the report of closure to clarify that the report must include the actual emissions through the date of closure.

Finally, for sources subject to 40 CFR part 71, we are eliminating the requirement to submit information already required by 40 CFR part 71 reporting requirements. The EPA is proposing to revise 40 CFR 49.138 to clarify that the only requirements of this section applicable to 40 CFR part 71 sources are the requirement to submit estimates of total actual emissions from the air pollution source and the requirement to submit a copy of the most recent fugitive particulate matter survey and plan as required under 40 CFR 49.126. The EPA is also proposing revisions to require that 40 CFR part 71 sources report the specified information by February 15 of each year (the same date as all other sources subject to the registration rule) rather than the date that their 40 CFR part 71 reports are due. 40 CFR part 71 required reports are now often submitted online through CEDRI within the EPA's Central Data Exchange (CDX), at

https://cdx.epa.gov.

Finally, the EPA is proposing that the owner or operator of a 40 CFR part 71 source submit reports of a change in ownership and closure, as applicable, because this information is not routinely required in a 40 CFR part 71 permit.

Section 49.139 Rule for non-Title V operating permits. This section provides a permitting program to establish Federally-enforceable requirements for air pollution sources on Indian reservations. In this rulemaking, the EPA is proposing to rescind a duplicative provision of this section pertaining to certain owner-requested limits and to add administrative procedures to clarify the process for issuing or revising a permit.

This rulemaking, as currently written, provides for the issuance of a permit containing Federally-enforceable requirements 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; (2) the Regional Administrator determines that additional Federally-enforceable requirements for a source are necessary to ensure compliance with the applicable implementation plan, which would include any applicable FIP or TIP; 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 Prevention of Significant Deterioration (PSD) increment.

On July 1, 2011, the EPA promulgated the Indian Country Minor NSR Rule, which includes provisions for establishing synthetic minor permits in Indian country (40 CFR 49.158). The rule defines “synthetic minor source” as a source that otherwise has the potential to emit regulated NSR pollutants in amounts that are at or above those for major sources in 40 CFR 49.167, 40 CFR 52.21 or 40 CFR 71.2, but that has taken a restriction so that its potential to emit is less than such amounts for major sources. 40 CFR 49.152(d). In promulgating the Indian Country Minor NSR Rule, the EPA stated that sources seeking synthetic minor status within the exterior boundaries of Indian reservations in Idaho, Oregon, and Washington must apply for synthetic minor source permits under the provisions of that rule and may no longer seek limits to become a “synthetic minor source” under the FARR (76 FR 38748, 38749, July 1, 2011). To be consistent with the Indian Country Minor NSR Rule, the EPA is proposing to rescind the provisions of 40 CFR 49.139 that are superseded by 40 CFR 49.158 of the Indian Country Minor NSR Rule and to add language making clear that applications for owner-requested synthetic minor limits must be submitted under 40 CFR 49.158 of the Indian Country Minor NSR Rule. For the same reason, we are proposing to delete the provision that authorizes owner-requested limits to be established in permits under 40 CFR part 71 or a Tribal operating permit program approved under 40 CFR part 70. The proposed revisions will now limit the application of 40 CFR 49.139 to the owner or operator of any air pollution source who wishes to obtain a Federally-enforceable limitation on the source's emissions that cannot be obtained under the Indian Country Minor NSR Rule (40 CFR 49.151 through 49.173). Examples of such situations include federally-enforceable limits to implement netting or offsets because the Indian Country Minor NSR Rule defines “synthetic minor source” as including only those sources that take a limit on potential to emit “so that its potential to emit is less than such amounts for major sources.” 40 CFR 49.152(d).

The EPA is also proposing to broaden the applicability provisions of 40 CFR 49.139 to provide Region 10 the authority to require a source to obtain a non-Title V operating permit where the Regional Administrator determines that additional Federally-enforceable requirements are necessary to implement or ensure compliance with any other provisions of the Clean Air Act (

e.g.,

regional haze). The EPA anticipates that such situations are likely to be extremely rare. In the more than 15 years since the FARR has been in effect, the EPA has not found it necessary to require a source to obtain a permit under 40 CFR 49.139. Having that authority available through a permit issuance process, should the need arise, however, would avoid the far more resource intensive process of promulgating a source-specific FIP to address an air quality issue.

We are also proposing to revise the existing administrative procedures for issuing non-title V operating permits and to add provisions for reopening and revising such permits. The Indian Country Minor NSR rule has detailed procedures for issuing, reopening, and

revising Clean Air Act permits on Indian reservations. For administrative efficiency, the EPA is proposing to use generally the same procedures for issuing, reopening, and revising non-title V operating permits. The EPA has also added a proposed definition of “non-title V operating permit,” defined as a permit issued by the Regional Administrator under this section.

Section 49.140 Rule for residential wood burning devices. The EPA is proposing to add a rule regulating the installation of certain residential wood burning devices and limiting what fuels can be burned in such devices in order to control the emissions of particulate matter and other pollutants to the atmosphere. In many areas of the Pacific Northwest, smoke from residential wood burning devices is a significant source of PM

2.5

and PM

emissions. Regulating residential wood burning devices and the burning in such devices therefore helps protect air quality.

The proposed rulemaking would prohibit, after the effective date of the rule, the installation of new and used residential wood heaters, hydronic heaters, forced air furnaces, or central heaters unless they have been certified by the EPA to meet the applicable particulate matter emission standards for woodfired heating devices established in the Standards of Performance for New Residential Wood Heaters (40 CFR part 60, subpart AAA) and the Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ) as amended in 2015 (80 FR 13672, March 16, 2015), or any later promulgation of these standards, and have a permanent label affixed to the device as provided in 40 CFR 60.536 or 40 CFR 60.5478. Certified wood burning devices generate less smoke (fewer particulates) than non-certified wood burning devices and use less wood to create heat, improving air quality in communities where people burn wood for heat. Individuals living on Indian reservations would be able to continue using uncertified and older certified residential wood heaters, hydronic heaters, forced air furnaces, or central heaters as long as the devices were installed prior to the effective date of this new rule. The proposed rulemaking is more protective of air quality and would better reduce particulate matter from residential wood burning devices in comparison to requirements in surrounding jurisdictions that allow installation of any certified residential wood burning device. The EPA is therefore also proposing, in the alternative, a rule more consistent with surrounding jurisdictions and that would prohibit the installation of new and used residential wood heaters, hydronic heaters, forced air furnaces, and central heaters unless they have been certified by the EPA to meet the applicable particulate matter emission standards for woodfired heating devices established in the Standards of Performance for New Residential Wood Heaters (40 CFR part 60, subpart AAA) and Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ), and have a permanent label affixed to the device as provided in 40 CFR 60.536 or 40 CFR 60.5478. In effect, the proposal in the alternative would allow the installation of any new or used residential wood heater, hydronic heater, forced air furnace, or central heater that has been certified by the EPA since subparts AAA and QQQQ were first promulgated.

The EPA is requesting comment specifically on whether the proposed rulemaking or the proposed alternative should be finalized in order to regulate the installation of new and used residential wood heaters, hydronic heaters, forced air furnaces, and central heaters on Indian reservations in Idaho, Oregon, and Washington. In taking final action, EPA will consider the input we receive regarding the benefits of enhanced environmental protection and the benefits of consistency with surrounding jurisdictions.

This proposed rulemaking would also limit materials that can be burned in all existing and newly installed types of residential wood burning devices (including fireplaces) to: (1) seasoned firewood, which is firewood that has a moisture content of 20% or less; (2) kiln dried or air dried lumber that has not been treated, impregnated, painted or coated; (3) products manufactured for the purpose of being used as a fuel for a residential wood burning device, such as wood pellets and biomass fire logs intended for burning in a wood stove or fireplace; and (4) manufactured fire starters and paper sufficient to start a fire.

These new requirements are consistent with the intent of the FARR: to ensure that residents within the boundaries of Indian reservations enjoy air quality protection similar to those existing outside reservations. Over the years, many jurisdictions on State lands outside of Indian reservations have similarly banned the installment of uncertified wood burning devices and limited material that can be burned in residential wood burning devices. This proposed section would therefore help ensure a similar degree of protection from environmental and health hazards on Indian reservations as in neighboring areas.

Section 49.141 Rule for curtailment of residential wood burning devices for specific areas. The EPA is proposing to require the curtailment of residential wood burning devices (commonly referred to as “burn bans”) during periods of poor air quality in specific geographical areas on certain Indian reservations with demonstrated elevated concentrations of particulate matter. This prohibition would apply to wood stoves and similar wood burning devices as well as to fireplaces. In some areas of Indian reservations in Idaho, Oregon, and Washington, stagnant air and use of wood burning devices, particularly in winter, drive particulate matter concentrations to elevated levels, causing concern for human health. Fine particles can make asthma symptoms worse and trigger asthma attacks. Fine particles can also trigger heart attacks, stroke, irregular heart rhythms and heart failure, especially in people who are already at risk for these conditions. As discussed in section I.B of this preamble, PM

2.5

concentrations that exceed the NAAQS over a 3-year period can result in a “nonattainment” designation under the CAA, which in turn can result in more stringent air pollution reduction measures. A burn ban rule would help areas with elevated PM

2.5

levels take proactive steps to avoid a “nonattainment” designation. Many State and local air agencies in the Pacific Northwest have curtailment programs for residential wood heating devices with procedures, conditions, and exemptions similar to those the EPA is proposing.

This proposed curtailment program establishes two burn ban stages. During a Stage 1 ban, only EPA-certified residential wood burning devices are permitted to be used. During a Stage 2 ban, no wood burning devices, even EPA-certified devices, are permitted to be used. A residence that self-certifies that wood is the sole source of heat or that the use of an available alternative heat source would impose an economic hardship would be exempt from both stages of burn bans. This exemption would remain in effect for 5 years from the date of self-certification, unless there is a change to the qualification status of the residence covered by the exemption. A “Self-Certification” exemption form will be available on Region 10's website and other locations and must be completed and kept on site for any residence relying on this exemption.

The EPA is proposing a phased in approach for implementation and enforcement of this rule. The first year

after promulgation, the EPA or delegated Tribe will run a voluntary curtailment program to help familiarize homeowners with the curtailment program. The mandatory curtailment program will begin October 1st of the 2nd calendar following the year of promulgation of this rulemaking for a particular reservation. After the implementation date, the EPA and delegated tribes will continue to focus on compliance assistance work. This will be in the form of assistance, outreach, and education, in partnership with affected Tribes regarding the new rules, the process for certifying for exemption status and the adverse health effects of high particulate matter levels.

After coordination and consultation with the affected Tribes, for the reasons explained in section B of this preamble, the EPA is proposing that 40 CFR 49.141 apply on the Colville, the Nez Perce and the Yakama Reservations, as shown in Table 2 in Section B of this preamble. The EPA anticipates that each of these Tribes will seek EPA delegation to implement this section on their reservations.

B. Rules Proposed for Specific Indian Reservations

As discussed in section A of this preamble, the EPA is proposing to promulgate several rules that would only apply on specific Indian reservations where the EPA finds, in coordination and consultation with the relevant Tribes, that the rules are necessary or appropriate. This is consistent with the approach under the FARR as promulgated in 2005, in which the EPA promulgated one or more additional rules on the Colville, Nez Perce, and Umatilla Reservations. Except as otherwise noted in this section, the additional rules promulgated for the specified Indian reservations in 2005 remain in effect, to be revised as proposed in this rulemaking.

This section summarizes the new rules that the EPA proposes to apply to specified Indian reservations, as well as existing rules (in some cases with proposed revisions) that the EPA proposes to apply to additional Indian reservations. In each case, the proposed additional rules are intended to regulate activities that contribute to elevated particulate matter concentrations in areas where there are air quality concerns. As in promulgating additional rules to apply on specified Indian reservations when the FARR was promulgated in 2005, the EPA is basing the determination of whether the additional rules proposed in this action are necessary or appropriate for a particular Indian reservation on a number of factors, including the prevalence of the activity on the reservation, the significance of the resulting pollution on air quality in the area and adjacent airsheds, and whether the Tribe has Tribal laws to control this type of pollution (67 FR 11748, 11755 March 15, 2002). These proposed regulations would be part of FIPs for specific Indian reservations as specified in subpart M of this part.

For the new 40 CFR 49.141 Rule for curtailment of residential wood burning devices for specific areas, the EPA evaluated PM

2.5

air quality monitoring data on or near reservations in Idaho, Oregon, and Washington to assess which reservations had elevated wintertime PM

2.5

levels. The EPA also received input from Tribes about the prevalence of wood burning devices on their reservations, the contribution of wood burning devices on their reservations to elevated PM

2.5

levels, and existing efforts to address wood burning devices in the airsheds of concern. Based on this information, the EPA determined it is appropriate to propose to apply 40 CFR 49.141 Rule for curtailment of residential wood burning devices for specific areas, on the Colville, Nez Perce, and Yakama Reservations.

Table 2 of this section lists the “additional” rules the EPA is proposing to apply on five Indian reservations where the EPA has found, in coordination and consultation with the relevant Tribes, that it is appropriate to establish these specific requirements in their FIPs in order to control particulate matter pollution, as well as the additional rules that will continue to apply, as revised, on the specified Indian reservations. There are currently no additional rules that apply on the Yakama Reservation. The EPA is proposing that 40 CFR 49.132 Rule for large open burning permits, 40 CFR 49.133 Rule for agricultural burning permits, 40 CFR 49.141 Rule for curtailment of residential wood burning devices for specific areas, and 40 CFR 49.142 Rule for small open burning annual permits apply on the Yakama Reservation, as shown in Table 2. As discussed in section A of this preamble, the EPA is proposing that 40 CFR 49.128 Rule for limiting particulate matter emissions from wood products industry sources be applied on the Coeur D'Alene Reservation because the operations of a wood products facility located on the Coeur D'Alene Reservation may contribute to the elevated levels of PM

2.5

in St. Maries, Idaho.

Additional information supporting the proposed additional rules for the specified Indian reservations, shown on Table 2 and marked with an asterisk, is included in the docket for this proposal.

Table 2—Additional Rules

Section No.

Additional rules

Coeur D'Alene Reservation, Idaho

§ 49.128 *

Rule for limiting particulate matter emissions from wood products industry sources.

Colville Reservation, Washington

§ 49.127

Rule for woodwaste burners.

§ 49.128

Rule for limiting particulate matter emissions from wood products industry sources.

§ 49.141 *

Rule for curtailment of residential wood burning devices for specific areas.

Nez Perce Reservation, Idaho

§ 49.127

Rule for woodwaste burners.

§ 49.128

Rule for limiting particulate matter emissions from wood products industry sources.

§ 49.132 †

Rule for large open burning permits.

§ 49.133

Rule for agricultural burning permits.

§ 49.134

Rule for forestry and silvicultural burning permits.

§ 49.141 *

Rule for curtailment of residential wood burning devices for specific areas.

§ 49.143 †

Permit by rule for small open burns.

Umatilla Indian Reservation, Oregon

§ 49.132 †

Rule for large open burning permits.

§ 49.133

Rule for agricultural burning permits.

§ 49.134

Rule for forestry and silvicultural burning permits.

§ 49.142 †

Rule for small open burning annual permits.

Yakama Reservation, Washington

§ 49.132 *

Rule for large open burning permits.

§ 49.133 *

Rule for agricultural burning permits.

§ 49.141 *

Rule for curtailment of residential wood burning devices for specific areas.

§ 49.142 *

Rule for small open burning annual permits.

C. Environmental Justice

February 11, 1994, the President issued Executive Order 12898 entitled, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” The Executive Order calls on each Federal agency to make environmental justice (EJ) a part of its mission by “identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on people of color and low-income populations.” On January 20, 2021, the President issued Executive Order 13985: “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

The Executive Order calls on each Federal agency to “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” Additionally, the EPA expressed a commitment to conducting environmental justice analysis for rulemakings as described in the April 30, 2021 revisions to the Cross-State Air Pollution Rule (CSAPR).

The additional rules marked with an asterisk (*) are the new or existing rules that the EPA proposes be newly applied to the specified Indian reservations in this rulemaking. With respect to the additional rules marked with a dagger (†), the large and specified small open burn permitting rules replace § 49.132, Rule for general open burning permits, which previously applied on the Nez Perce and Umatilla Reservations. Rules that are not so marked are currently in effect on the specified Indian reservations, and the EPA is proposing that the revisions to these additional rules discussed in Section II.A. of this preamble be adopted for such reservations.

Available at

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-Federal-government/,

accessed July 16, 2021.

86 FR 23054, 23162 (April 30, 2021) (“Going forward, EPA is committed to conducting environmental justice analysis for rulemakings based on a framework similar to what is outlined here, in addition to investigating ways to further weave environmental justice into the fabric of the rulemaking process including through enhanced meaningful engagement with environmental justice communities.”).

The EPA defines EJ as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. As outlined in the EJ Technical Guidelines, the goal of an EJ analysis is to evaluate, to the extent possible, three questions: Are there potential EJ concerns for populations living in proximity to sources affected by the rule in the baseline?; Are there potential EJ concerns for population groups of concern for the regulatory option(s) under consideration?; Are potential EJ concerns created or mitigated under the options under consideration compared to the baseline? The determination of whether there is a potential disproportionate impact that may merit Agency action is ultimately a policy judgment informed by analysis.

These rules are designed to protect human health and air quality resources in Indian reservations in Idaho, Oregon, and Washington. These reservations often have communities with very low per capita incomes relative to the U.S. average with large percentages of the population below the poverty line, so many communities where these rules apply tend to be communities with low income and minority populations. However, the rules will not impose any negative environmental impacts on these populations. Instead, the rules provide additional protections for communities that include overburdened populations. Because the rules will improve health and provide additional protections for such communities, the EPA has not undertaken a detailed, formal analysis of the environmental justice impacts of this action.

According to the EPA's June 2016

Technical Guidance for Assessing Environmental Justice in Regulatory Analysis,

page 66 and Section 2.1, the term “disproportionate impacts” refers to differences in impacts or risks that are extensive enough that they may merit Agency action. The determination of whether there is a disproportionate impact that may merit Agency action is a policy judgment informed by analysis of any discernable differences in anticipated impacts from the rulemaking on population groups of concern compared to all other population groups.

D. Costs and Benefits Associated With These Rules

As part of developing the proposed revisions, the EPA conducted an analysis of the expected costs should these rules be adopted. Included in the docket for this rulemaking is the Economic Impact Analysis (EIA) and the Information Collection Request (ICR) documents for the proposed revisions. The EIA was prepared to assist the EPA in estimating the costs of compliance for the proposed revisions alongside updated 2021 costs for the initial FARR. The ICR describes the recordkeeping and reporting information that will be collected under the revised FARR and related “burden.” “Burden” refers to 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.

With the exception of making orchard heating devices subject to the visible emissions limit, the EPA's preliminary conclusion is that there will be no capital costs incurred to comply with any of the new or revised rules. With respect to the geographic extension of the FARR, we are not aware of any sources in these areas that would require additional control or monitoring equipment to comply with the FARR, as revised. With respect to the open burning rules, open burning permit rules, and wood burning devices curtailment rules, we also do not expect any capital costs will be needed to comply with the proposed revisions. The EPA anticipates that 40 CFR 49.140 Rule for residential wood burning devices, which regulates the installation of used wood burning devices, would impose negligible additional costs overall. This is because, although the cost difference between an older used wood burning device and post-2015 EPA certified wood burning device could be approximately $3,500, we anticipate very few older used wood burning devices would have been installed even if the EPA did not promulgate this prohibition. This is based on information we received from Tribes during the development of the proposed rulemaking. One example provided was where a resident gives a used stove that was removed from their residence to a family member to install in a different residence or structure like a recreational cabin. Although this may occur, it is expected to be an uncommon event so our overall cost estimate is based on an average of 15 installations per year of older (pre-2015) used wood heating devices that would no longer be allowed under the proposed rulemaking. That number would be even lower under the proposed alternative, which would allow used post-1990 certified wood heating devices to be reinstalled.

In response to a request from the OMB, the EPA conducted a benefits analysis specifically looking at 40 CFR 49.141 Rule for curtailment of residential wood burning devices for specific areas. The analysis includes a conservative estimate of the monetary benefits of this proposed rulemaking based on mortality associated with PM

2.5

exposure. This estimate used data and equations prepared by the EPA for the Environmental Benefits Mapping and Analysis Program (BenMAP-CE),

which is the EPA's recommended tool for benefits calculations. The estimated mortality associated maximum benefit was calculated to be $27.8 million. This amount ($27.8 million) is representative of benefits over a long period of time

because it is based on long-term mortality from continuous PM

2.5

exposure. A copy of this analysis is the docket for this proposal.

https://www.epa.gov/benmap.

The time period of the benefit calculation is not explicitly defined since death from chronic PM

2.5

exposure can occur years after the start of the exposure period. The EPA calculates benefits based on the Di et al. (2017) epidemiological study (

https://www.nejm.org/doi/full/10.1056/nejmoa1702747

), which focused on evaluating mortality and PM

2.5

concentrations for a 12-year period.

The extension of 40 CFR 49.128 Rule for limiting particulate matter emissions from wood products industry sources to the Coeur D'Alene Reservation is not expected to result in new capital costs for the one existing facility that would be subject to the rule. This is because, based on available test data from the source in question, the emission controls that the facility is currently using to control hazardous air pollutants to comply with the NESHAP for Plywood and Composite Wood Products (40 CFR part 63, subpart DDDD) are also expected to control particulate matter emissions to below the levels required in 40 CFR 49.128.

With respect to orchard heating devices proposed to be regulated under 40 CFR 49.124 Rule for limiting visible emissions, the EPA conducted an analysis of the expected costs of complying with this rulemaking. This analysis indicates that annualized costs of a little over $1.5 million (based on one-time capital costs of up to $18.9 million amortized over 30 years) could be expected across all Indian reservations in order for orchard heating devices (including smudge pots) to comply with the visible emissions limit. These anticipated capital costs assume that 10% of all orchard lands on Indian reservations in Idaho, Oregon, and Washington will be required to purchase new equipment (

e.g.,

propane-powered fans or propane heaters) to comply with the visible emissions limit and maintain orchard heating capabilities. Note, however, that this assumption is based on limited data regarding the prevalence of smudge pots, open-pot heaters, and other orchard heating devices that burn diesel and other fuels with high visible emissions on Indian reservations in Idaho, Oregon, and Washington. The analysis also indicates that these up-front capital costs for replacement orchard heating devices will be recouped in time; the use of alternative equipment is expected to result in an annual operating cost savings of roughly $10,000 per acre due to reductions in fuel and labor costs.

We specifically request public comment on the EPA's economic analysis with respect to orchard heating devices, along with available data regarding the extent to which existing orchard heating devices on Indian reservations in Idaho, Oregon, and Washington are expected to be able to comply with the proposed visible emissions limit in 40 CFR 49.124; the up-front capital costs of replacing non-complying orchard heating capacity; and any expected annual cost savings from replacing non-complying orchard heating capacity with alternatives. This data will be considered in making decisions about how to regulate orchard heating devices appropriately in the final rule.

This annual per acre cost savings results in an estimated ongoing annual savings of $55,283,273.

Thus, the costs estimated for these revisions to the FARR are primarily the labor costs associated with recordkeeping and reporting under the regulations. Costs for both the FARR rules currently in effect at 2021 costs and the proposed revisions to the FARR were estimated in the EIA. Cost estimates for the revisions proposed in this rulemaking include costs on those Indian reservations for which the EPA has proposed additional new rules. The total annualized labor costs and non-labor costs were estimated to be $496,252 for all rules other than 40 CFR 49.124 Rule for limiting visible emissions. Factoring in the estimated ongoing annual savings related to use of replacement orchard heating devices, the proposed revisions are estimated to result in an overall annual savings.

Annual savings from the proposed revisions are estimated to be $53,266,002.

The information relied on by the EPA for this analysis was assembled from a number of sources, including surveys of sources on the Indian reservations in Idaho, Oregon, and Washington, consultations with the sources and Tribal governments, and the EPA's experience with air quality issues in the Pacific Northwest.

III. Public Participation and Request for Comment

full text of the rules as proposed to be revised, rather than only the portions of the text proposed to be revised in this action. A redline-strikeout comparison of the revised rules, as proposed, to the existing FARR and FIPs showing all proposed changes is included in the docket for this action. The EPA solicits comments on all aspects of the proposed revisions. Interested parties should submit comments online and be sure to identify the appropriate docket control number (EPA-R10-OAR-2020-0361) in your correspondence. Your comments must be received by January 10, 2023 to be considered in the final action taken by the EPA.

You may also comment on this proposal by attending the public hearing, if one is held, and providing oral comments. If the EPA determines that a hearing should be held, the virtual hearing will be held on November 17, 2022.

IV. Incorporation by Reference

In this document, the EPA is proposing to include in the final rule, regulatory text that includes incorporation by reference (IBR). In accordance with requirements of 1 CFR 51.5, the EPA is proposing to IBR the following provisions as they exist on the date of final approval by the Office of the Federal Register:

• ASTM D388-19a, Standard Classification of Coals by Rank, IBR to be approved for § 49.123. This specification covers the classification of coals by rank, that is, according to their degree of metamorphism, or progressive alteration, in the natural series from lignite to anthracite;

• ASTM D396-21, Standard Specification for Fuel Oils, IBR to be approved for § 49.123. This specification covers grades of fuel oil intended for use in various types of fuel-oil-burning equipment under various climatic and operating conditions; ASTM D240-19, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, IBR to be approved for § 49.123. This test method covers the determination of the heat of combustion of liquid hydrocarbon fuels ranging in volatility from that of light distillates to that of residual fuels;

• ASTM D1826-94(Reapproved 2017), Standard Test Method for Calorific (Heating) Value of Gases in Natural Gas Range by Continuous Recording Calorimeter, IBR to be approved for § 49.123. This test method covers the determination with the continuous recording calorimeter of the total calorific (heating) value of fuel gas produced or sold in the natural gas range from 900 to 1200 British thermal unit/standard cubic foot;

• ASTM D5865/D5865M-19, Standard Test Method for Gross Calorific Value of Coal and Coke, IBR to be approved for § 49.123. This test method pertains to the determination of the gross calorific value of coal and coke by either an isoperibol or adiabatic combustion calorimeter;

• ASTM D2880-20, Standard Specification for Gas Turbine Fuel Oils, IBR to be approved for § 49.130. This specification covers the selection of fuels for gas turbines, excepting gas turbines used in aircraft, for the guidance of interested parties such as turbine manufacturers and the suppliers and purchasers of fuel oils;

• ASTM D4294-21, Standard Test Method for Sulfur in Petroleum Products by Energy-Dispersive X-ray Fluorescence Spectroscopy, IBR to be approved for § 49.130. This test method covers the determination of total sulfur in petroleum and petroleum products that are single-phase and either liquid at ambient conditions, liquefiable with moderate heat, or soluble in hydrocarbon solvents;

• ASTM D6021-22, Standard Test Method for Measurement of Total Hydrogen Sulfide in Residual Fuels by Multiple Headspace Extraction and Sulfur Specific Detection, IBR to be approved for § 49.130. This test method covers a method suitable for measuring the total amount of hydrogen sulfide (H

S) in heavy distillates, heavy distillate/residual fuel blends, or residual fuels;

• ASTM D4239-18e1, Standard Test Methods for Sulfur in the Analysis Sample of Coal and Coke Using High Temperature Tube Furnace Combustion Methods, IBR to be approved for § 49.130. This test method covers the determination of sulfur in samples of coal or coke by high-temperature tube furnace combustion;

• ASTM E775-15(Reapproved 2021), Standard Test Methods for Total Sulfur in the Analysis Sample of Refuse-Derived Fuel, IBR to be approved for § 49.130. These test methods present two alternative procedures for the determination of total sulfur in prepared analysis samples of solid refuse-derived fuel. Sulfur is included in the ultimate analysis of refuse-derived fuel;

• ASTM D1072-06(Reapproved 2017), Standard Test Method for Total Sulfur in Fuel Gases by Combustion and Barium Chloride Titration, IBR to be approved for § 49.130. This test method is for the determination of total sulfur in combustible fuel gases and is applicable to natural gases, manufactured gases, mixed gases, and other miscellaneous gaseous fuels;

• ASTM D3246-15, Standard Test Method for Sulfur in Petroleum Gas by Oxidative Microcoulometry, IBR to be approved for § 49.130. This test method covers determination of sulfur in the range from 1.5 to 100 milligram per kilogram (parts per million by mass) by weight in hydrocarbon products that are gaseous at normal room temperature and pressure;

• ASTM D4084-07(Reapproved 2017) Standard Test Method for Analysis of Hydrogen Sulfide in Gaseous Fuels (Lead Acetate Reaction Rate Method), IBR to be approved for § 49.130. This test method covers the determination of H

S in gaseous fuels. It is applicable to the measurement of H

S in natural gas, liquefied petroleum gas, substitute natural gas, landfill gas, sewage treatment off gasses, recycle gas, flare gasses, and mixtures of fuel gases;

• ASTM D5504-20, Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Chemiluminescence, IBR to be approved for § 49.130. This test method is primarily for the determination of speciated volatile sulfur-containing compounds in high methane content gaseous fuels such as natural gas;

• ASTM D4468-85(Reapproved 2015), Standard Test Method for Total Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric Colorimetry, IBR to be approved for § 49.130. This test method covers the determination of sulfur gaseous fuels in the range from 0.001 to 20 parts per million by volume (ppm/v);

• ASTM D2622-21, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, IBR to be approved for § 49.130. This test method covers the determination of total sulfur in petroleum and petroleum products that are single-phase and either liquid at ambient conditions, liquefiable with moderate heat, or soluble in hydrocarbon solvents. These materials can include diesel fuel, jet fuel, kerosene, other distillate oil, naphtha, residual oil, lubricating base oil, hydraulic oil, crude oil, unleaded gasoline, gasoline-ethanol blends, and biodiesel; and

• ASTM D6228-19, Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Flame Photometric Detection, IBR to be approved for § 49.130. This test method covers the determination of individual volatile sulfur-containing compounds in gaseous fuels by gas chromatography

with a flame photometric detector or a pulsed flame photometric detector.

These ASTM standards were developed and adopted by ASTM. This material is available for inspection by appointment at the EPA Region 10, Air and Radiation Division, 1200 Sixth Avenue, Seattle, Washington 98101 by contacting the individual listed in the

FOR FURTHER INFORMATION CONTACT

section, and is available from the sources indicated below. The ASTM standards may also be obtained from

www.astm.org

or from the ASTM at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at

https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. OMB determined this action is significant based on a finding of novel policy issues, specifically that this action impacts Indian Tribes. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, “Economic Impact Analysis for the Revised Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon, and Washington” is available in the docket.

B. Paperwork Reduction Act (PRA)

OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0558. Information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR # 2730.01.

The record-keeping and reporting burden for this collection of information is described in the following paragraphs. As discussed in section C of this preamble, “burden” refers means to 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.

In 2005, the EPA promulgated Federal Implementation Plans (FIPs) under the Clean Air Act (CAA) for Indian reservations located in Idaho, Oregon and Washington. The FIPs, also referred to as Federal Air Rules for Reservations (FARR), include basic air quality regulations to protect health and welfare on Indian reservations located in the Northwest. These rules are implemented by EPA Region 10 and delegated to Tribes. EPA Region 10 is proposing revisions to the FARR, including clarifying aspects of the initial rules; removing an exemption to the limiting visible emissions rule for smudge pots and adding new rules for residential solid fuel heating devices and woodstove curtailment; splitting the rule for general open burning permits into a large open burn and two small open burn permit options; removing provisions that have been superseded by provisions of the Tribal New Source Review (NSR) rule; and moving to online registration of air pollution sources and emissions reporting. In addition, EPA Region 10 is promulgating three new FIPs implementing the FARR on the Snoqualmie Indian Reservation, the Cowlitz Indian Reservation, and the lands held in trust for the Samish Indian Nation. These revisions also clarify that the FARR applies to lands held in trust for a Tribe that has not been formally designated as a reservation.

The Office of Management and Budget (OMB) approved an Information Collection Request (ICR) entitled “Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington” (OMB Control Number 2060-0558), on November 16, 2004 for the FARR as originally promulgated in 2005. Renewals of the ICR were approved by OMB on May 23, 2008; August 3, 2011; March 16, 2015; and August 31, 2018, with the latest renewal (EPA ICR # 2020.09) submitted to OMB for review and approval and published in the

Federal Register

on 8/13/2021 (86 FR 44708). This new ICR addresses the proposed revisions to the FARR listed above and provides burden estimates for respondents to comply with the various FIP provisions required by subpart M of this part Implementation Plans for Tribes—Region 10. The rulemaking effort will utilize a new OMB control number and EPA ICR number. Any approved information collection activities associated with the final rule will be reintegrated with the base collection (under control number 2060-0558) at a later date.

Respondents/affected entities:

Entities potentially affected by this action include owners and operators of emission sources in all industry groups and tribal, Federal, and local governments, landowners who conduct open burning and owners of residential wood burning devices, located in the identified Indian reservations. Categories of entities potentially affected by this proposed information collection are summarized in Table 1 in the ICR.

Respondent's obligation to respond:

Respondent's obligation to respond is mandatory. See §§ 49.122, 49.126, 49.130 through 134, 49.138 through 49.142.

Estimated number of respondents:

2,731.

Frequency of response:

Annual or Occasional.

Total estimated burden:

5354.5 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost:

$424,300 (per year), includes no annualized capital or operation & maintenance costs.

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 the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. The EPA will respond to any ICR-related comments in the final rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at

www.reginfo.gov/public/do/PRAMain.

Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. OMB must receive comments no later than December 12, 2022.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. Under the RFA, “small entity” includes small businesses, small governments, and small organizations, as defined in 5 U.S.C. 601. The small entities subject to the requirements of this action are primarily small businesses, although there may be small organizations and small governmental jurisdictions that are impacted as well. Among individually identified entities

expected to be impacted by these rules, 108 out of 140 (77%)

were classified as small entities, all of which are small businesses. There are an array of different types of businesses that would be impacted. Industrial categories subject to the FARR include gasoline stations, forest products, cement, asphalt paving, automotive repair, lodging, and other sectors. None of the identified facilities expected to incur costs under these rules are believed to be owned by small governments. In addition to the identified entities, there are a number of general contractors, fire protection services, farmers, foresters, and orchardists that are expected to incur costs each year to apply for burn permits or comply with other recordkeeping and reporting requirements. We have estimated that an average of about 2,010 entities would incur costs for preparing burn permits or other requirements each year. These entities are not specifically identified so we used a conservative assumption that they are all small. They are expected to be comprised primarily of small businesses, but small governmental jurisdictions may incur costs for their fire protection services to obtain annual open burning permits to conduct trainings. Small non-profits may also be impacted. The Agency has determined that the identified small entities may experience an impact averaging about 0.1 percent of revenues, with no entities expected to incur costs greater than 1 percent of their annual revenues. Similarly, among unidentified entities that are expected to experience positive regulatory costs, the estimated costs are so low relative to typical revenues in the impacted sectors that no entities are expected to experience cost greater than 1 percent of annual revenues. Details of this analysis are presented in the EIA included in the docket. Although this proposed rulemaking will not have a significant economic impact on a substantial number of small entities, the EPA has included a number of exemptions in the rules where appropriate to reduce impacts of this rulemaking on small entities. In addition, in developing this proposal, the EPA coordinated and consulted with Tribal governments regarding the potential impacts of these rules (see Section IV.F. of this preamble). In order to better understand the implications of these rules for small entities, as part of the coordination and consultation with Tribal representatives, the EPA also explored the possible effects for small businesses operating on Tribal lands. We continue to seek information regarding the potential impacts of the proposed rulemaking on small entities and welcome comments on issues related to such impacts.

This represents the number of businesses that have registered under the FARR.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The 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 the proposed revisions will not have an economic impact on Tribal governments because the implementation and enforcement responsibility for the proposed revisions rests with the EPA unless a Tribe seeks delegation to implement or otherwise seeks to assist the EPA in one or more aspects of the FARR on its reservation. Thus, this rule are not subject to the requirements of sections 202 and 205 of UMRA.

As explained in the discussion of Executive Order 13175 in section F of this preamble below, 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 proposal. 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.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The proposed revisions would significantly affect specific Indian reservations in Idaho, Oregon, and Washington by imposing necessary or appropriate air quality regulations and creating an improved level of air quality protection on the affected Indian reservations. The air quality revisions proposed here are applicable broadly to all sources within the identified Indian reservations and are not uniquely applicable to Tribal governments. Tribal governments may incur some compliance costs in meeting those requirements that apply to sources they own or operate; however, the economic impacts analysis indicates that those costs would not be substantial. Finally, although Tribal governments are encouraged to partner with the EPA on the implementation of these regulations, they are not required to do so. In addition, the EPA will seek to provide funding to Tribes that apply for delegation of the EPA's authority to administer specific rules to support their activities. Because these proposed revisions 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 the proposed revisions.

The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in the document, “Coordination and Consultation Record,” included in the docket for this notice. The proposed revisions are based on the EPA's and Tribes' experience in implementing the FARR since 2005, including instances where the FARR was not being interpreted as the EPA had intended, as well as changes in related air quality regulations and changes in air quality in some affected areas. Early on in the process, in 2010, we offered all affected Tribes the opportunity to consult on proposed revisions to the FARR, and conducted formal consultations with three Tribes in response to that offer. We also provided Tribes the opportunity early on to participate in conference calls to learn more about potential rule revision and worked

collaboratively with tribal environmental staff as we developed draft revisions.

The EPA provided drafts of the proposed FARR revisions to the leaders and environmental staff of the affected Tribes in 2016 and 2020. Several Tribes requested formal consultation in response. The EPA also conducted a webinar in 2020 to provide an overview of the latest draft revisions that 10 Tribes attended, and the EPA discussed the draft revisions with Tribal environmental staff at various points in the process. The overall response to the proposed revisions from Tribal leaders and environmental staff was generally favorable, and the EPA received valuable suggestions for improvements to the rule itself, as well as outreach and implementation for once the revisions are finalized.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action generally increases the level of environmental protection for affected populations (persons living on Indian reservations). The proposed revisions would provide regulatory certainty and necessary or appropriate regulation on Indian reservations, and reduce emissions from sources complying with these regulations. Consequently, the regulations are expected to result in health benefits to persons living on Indian reservations.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

This action involves technical standards. The EPA proposes to continue using the ASTM Methods and generally accepted test methods previously promulgated by the EPA, as updated since 2005. Because these methods were used under the FARR rules as promulgated in 2005 and are still widely used by State and local agencies for determining compliance with similar rules, the EPA continues to believe these technical standards are the most appropriate and will not require any alternative technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). Section II.C. of this preamble provides additional information regarding Environmental Justice. This action generally increases the level of environmental protection for affected populations (persons living on Indian reservations). The proposed revisions would provide necessary or appropriate regulation on Indian reservations, and reduce emissions from sources complying with these regulations. Consequently, the regulations are expected to result in health benefits to persons living on Indian reservations, many of whom live in low-income and communities of color.

List of Subjects in 40 CFR Part 49

Environmental protection, Air pollution control, Administrative Act and Procedure, Incorporation by reference, Indians, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

Dated: September 15, 2022.

Casey Sixkiller,

Regional Administrator, Region 10.

For the reasons set forth in the preamble, 40 CFR part 49 is proposed to be amended as follows:

PART 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

1. The authority citation for part 49 continues to read as follows:

Authority:

42 U.S.C. 7401

et seq.

Subpart C—General Federal implementation Plan Provisions

2. Revise the undesignated heading immediately following reserved §§ 49.106 through 49.120 and §§ 49.121 through 49.139 to read as follows:

Sec.

General Rules for Application to Indian Reservations in Idaho, Oregon, and Washington

49.121

Introduction.

49.122

Partial delegation of administrative 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 large open burning permits.

49.133

Rule for agricultural burning permits.

49.134

Rule for forestry and silvicultural burning permits.

49.135

Rule for emissions detrimental to public health or welfare.

49.136

[Reserved]

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.

General Rules for Application to Indian Reservations in Idaho, Oregon, and Washington

§ 49.121

Introduction.

(a)

What is the purpose of §§ 49.121 through 49.143?

These sections establish emission limitations and other requirements for air pollution sources located within Indian reservations in Idaho, Oregon, and Was

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