Redesignation of the Forest County Potawatomi Community to a PSD Class I Area; State of Wisconsin

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI53-01-6914; FRL-5250-2]

Redesignation of the Forest County Potawatomi Community to a PSD

Class I Area; State of Wisconsin

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The purpose of this action is to propose approval and seek

public comment on the request by the Forest County Potawatomi (FCP)

Tribal Council to redesignate lands within the FCP Reservation in the

State of Wisconsin to Class I under USEPA's regulations for prevention

of significant deterioration (PSD) of air quality. The Class I

designation will result in lowering the allowable increases in ambient

concentrations of particulate matter (PM), sulfur dioxide (SO2),

and nitrogen oxides (NOX) on certain of the FCP Community's lands.

DATES: Comments must be received on or before September 5, 1995. An

informational meeting and public hearing on this proposal will be held

on August 2, 1995. The informational meeting will start at 2:00 pm CDT

and the public hearing will immediately follow it.

ADDRESSES: Written comments should be addressed to: Carlton Nash,

Chief, Regulation Development Section, Air Toxics and Radiation Branch,

United States Environmental Protection Agency, 77 West Jackson

Boulevard (AT-18J), Chicago, Illinois 60604.

An informational meeting on Class I PSD redesignations in general

and a public hearing on the FCP redesignation request in particular

will be held at the Indian Springs Lodge on Highway 32 in Carter,

Wisconsin starting at 2:00 pm CDT on August 2, 1995. The hearing will

be strictly limited to the subject matter of the proposal, which is

that the proposed redesignation meets the procedural requirements.

Supporting information used in developing the proposed rule and

materials submitted to USEPA relevant to the proposed action are

available during normal business hours for public inspection and

copying at the Air Toxics and Radiation Branch, Region 5, United States

Environmental Protection Agency, 77 West Jackson Boulevard (AT-18J),

Chicago, Illinois 60604. A copy of this information and materials is

also available for inspection at the Crandon Public Library, 104 South

Lake Avenue, Crandon, Wisconsin 54520-1458.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, USEPA Region 5

(AT-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)

886-0671.

SUPPLEMENTARY INFORMATION: Part C Title I of the Clean Air Act (Act)

provides for the prevention of significant deterioration of air

quality. The intent of Part C is to prevent deterioration of existing

air quality, in areas having relatively clean air--those areas

designated pursuant to Section 107 of the Act, as ``unclassifiable'',

or ``attainment'' relative to an areas National Ambient Air Quality

Standard. These areas are referred to as ``PSD areas''. The Act

provides for three basic classifications applicable to PSD areas

located within the United States. Associated with each classification

are increments which represent the maximum allowable increase in

ambient air pollutant concentrations above a baseline concentration.

Part C initially designated as Federal Class I certain areas, under

Section 162(a) of the Act, such as international parks, wilderness

areas, national memorial parks, and national parks.1 The PSD

regulations provide special protection for Federal Class I areas. Class

II applies to areas in which pollutant increases accompanying moderate

growth is allowed. Class III applies to those areas in which

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considerably more air quality deterioration is considered acceptable.

\1\ The 1990 CAA Amendments included provisions to allow the

boundaries of existing federal Class I areas to be expanded, but no

new Class I areas were created.

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Under the 1977 amendments to the Act, all PSD areas, other than the

Federal Class I areas, were initially designated Class II. Section 164

of the Act allows States and Indian governing bodies to reclassify

areas under their jurisdiction to accommodate the social, economic, and

environmental needs and desires of the local population. Reservations

that have previously been reclassified as Class I areas include the

Northern Cheyenne, Fort Peck, and Flathead Reservations in Montana and

the Spokane Reservation in Washington.

A Class I redesignation results in lowering the allowable increases

in ambient concentrations of PM, SO2, and NOX. Only

facilities defined by the PSD regulations, 40 Code of Federal

Regulations (CFR) 51.166 and 52.21, as major stationary sources or

major modifications are subject to PSD and required to perform PSD air

quality impact analysis. These facilities are typically large

industrial sources such as refineries and electric utilities.

It is important to note that no new permits or additional controls

to existing sources are required as a result of a redesignation to

Class I. The difference between the two designations is that the

maximum increase in ambient concentration of a given pollutant 2

allowed over a baseline concentration is lower in a Class I area. This

affords a Class I area greater protection from the cumulative impacts

of many facilities locating in and around the Class I area.

\2\ There are currently PSD increments established for NOX,

SO2, and PM. 40 CFR 52.21(c).

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Forest County Potawatomi Request for Redesignation

On February 14, 1995 the FCP Tribal Council submitted to USEPA a

proposal to redesignate certain FCP Reservation lands from Class II to

Class I. FCP Reservation lands being requested for redesignation to

Class I are limited to parcels over 80 acres, only in Forest County,

and that are held in trust for the Tribe by the Federal government.

With their request, the Tribal Council submitted a PSD Class I Area

Redesignation Technical Report, maps identifying the reservation lands

subject to the proposed redesignation, documentation of public

notification, a record of the public hearing held on September 29,

1994, comments received by the Tribal Council on the proposed

redesignation, and the Tribal Council's response to comments received.

On June 14, 1995 the Tribal Council also provided USEPA with

information concerning Air Quality Related Values (AQRV) for the

proposed redesignated area, including a discussion of the economic and

energy effects of a proposed AQRV for mercury. This information is

available at the Crandon Public Library and Region 5 offices listed in

the Addresses section of this proposal.

Statutory and Regulatory Requirements for Redesignation

Section 164 of the Act and Federal regulations set forth at 40 CFR

52.21(g) outline the requirements for redesignation of areas under the

PSD program. The Act provides that lands within the exterior boundaries

of reservations of federally recognized Indian tribes may be

redesignated only by the appropriate Indian Governing Body. Under

section 164(b)(2) and 40 CFR 52.21(g)(5), USEPA may disapprove a

redesignation only if it finds, after notice and opportunity for

hearing, that the redesignation does not meet the procedural

requirements of section 164 or is a mandatory Federal Class I area that

may not be redesignated. The latter does not apply to the FCP area

proposed for redesignation. In addition, the Indian Governing Body may

resubmit the proposal after correcting any deficiencies noted by the

Administrator, under 40 CFR 52.21(g)(6).

The procedural requirements for a Class I redesignation by an

Indian Governing Body are as follows: (1) At least one public hearing

must be conducted in accordance with the requirements set forth at 40

CFR 51.102; (2) other States, Indian Governing Bodies, and Federal Land

Managers whose lands may be affected by the proposed redesignation must

be notified at least 30 days prior to the public hearing; (3) at least

30 days prior to the public hearing, a discussion of the reasons for

the proposed redesignation including a satisfactory description and

analysis of the health, environmental, economic, social and energy

effects of the proposed redesignation must be prepared and made

available for public inspection and the public hearing notice must

contain appropriate notification of availability of such discussion;

(4) prior to the issuance of the public notice for a proposed

redesignation of an area that includes Federal lands in the

redesignation, the redesignating authorities must provide written

notice to the appropriate Federal Land Managers and an opportunity to

confer and submit written comments and recommendations; and (5) prior

to proposing the redesignation, the Indian Governing Body has consulted

with the State(s) in which the Reservation is located and that border

the Reservation.

Tribal Council Submittal

The February 14, 1995 request for redesignation includes evidence

that all of the statutory and regulatory requirements for redesignation

of the FCP Reservation from Class II to Class I have been met by the

FCP Tribal Council. The FCP Tribal Council is the Indian Governing Body

for the FCP Reservation, and only land parcels within the exterior

boundaries of the Reservation are proposed for redesignation.

Pursuant to 40 CFR 51.102, the FCP Tribal Council conducted a

public hearing on September 29, 1994 at the Potawatomi Tribal Hall,

four miles east of Crandon, Wisconsin. Notice of the hearing was

provided to the required parties, other public agencies, and interested

parties. It was posted in public locations and was provided to local

media. A satisfactory description and analysis of the health,

environmental, economic, social, and energy effects of the proposed

redesignation entitled, ``Forest County Potawatomi Community PSD Class

I Area Redesignation Technical Report'' was completed in August 1994,

and its availability was announced in the public hearing notices.

Evidence that the Tribe consulted with State of Wisconsin officials

prior to proposing the redesignation is also included in the submittal.

Therefore, the documentation submitted by the Tribal Council shows that

all statutory and regulatory procedural requirements for redesignation

have been met.

Summary of Action

Because USEPA's review has not revealed any procedural

deficiencies, the redesignation is hereby proposed for approval. The

public is invited to comment on whether the FCP Tribal Council has met

all the applicable procedural requirements of 40 CFR 52.21(g)(2) &

(g)(4). Comments should be submitted to the Region 5 address listed

above. USEPA will hold a public hearing on this redesignation on August

2, 1995,3 at the Indian Springs Lodge on Highway 32 in Carter,

Wisconsin, to receive additional public comment on the subject of this

proposal, which is whether the proposed redesignation met the

procedural requirements summarized in this action. Public comments

received either at the public hearing in Carter or received in writing

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at the Region 5 offices by September 5, 1995, will be considered in the

final rulemaking action taken by USEPA.

\3\ The public hearing will immediately follow an informational

meeting on the PSD redesignation process, which will start at 2:00

pm CDT.

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Administrative Review

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for a PSD

Class I redesignation. Each request for redesignation shall be

considered separately and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. Section 600 et seq.,

USEPA must prepare a regulatory flexibility analysis assessing the

impact of any proposed or final rule on small entities. 5 U.S.C.

sections 603 and 604. Alternatively, USEPA may certify that the rule

will not have a significant impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000. The proposed action does not have a significant

direct impact on small entities and may only prospectively affect the

amount of air quality deterioration that is allowed from major

stationary sources and major modifications, as defined by 40 CFR 52.21,

and will not result in any significant additional requirements for

small entities. Therefore, I certify that this action does not have a

significant impact on a substantial number of small entities.

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,

the USEPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or Tribal governments in the aggregate.

Through submission of the request for redesignation, the Tribal

government has elected to adopt an option allowed them under Section

164 of the Act. The redesignation being proposed for approval in this

action may bind State, local, and Tribal governments to perform certain

actions and also may ultimately lead to the private sector being

required to perform certain duties. However, USEPA has also determined

that this action does not include a mandate that may result in

estimated costs of $100 million or more to State, local, or Tribal

governments in the aggregate or to the private sector.

Authority: 42 U.S.C. 7401-7671q.

List of Subjects in 40 CFR Part 52

Air pollution control, Carbon monoxide, Environmental Protection,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Sulfur

oxides.

Dated: June 19, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95-16003 Filed 6-28-95; 8:45 am]

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