[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Rules and Regulations]
[Pages 23107-23111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8969]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2004-WI-0002; FRL-8557-5]
Redesignation of the Forest County Potawatomi Community
Reservation to a PSD Class I Area; Dispute Resolution with the State of
Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of dispute resolution.
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SUMMARY: The purpose of this notice is to announce the EPA resolution
of an intergovernmental dispute over a request by the Forest County
Potawatomi Community (FCP Community) to redesignate portions of the FCP
Community reservation as a non-Federal Class I area under the Clean Air
Act (CAA or Act) program for Prevention of Significant Deterioration
(PSD) of air quality. On June 8, 1995, the Governors of Wisconsin and
Michigan raised concerns about EPA's proposal to approve the request of
the FCP Community to redesignate portions of its reservation as a non-
Federal Class I area and asked EPA to enter negotiations with the
parties to resolve the dispute as provided for in the CAA. The State of
Michigan and the FCP Community were unable to reach an agreement
concerning the redesignation. After fully considering the concerns
raised by the State of Michigan, EPA has determined that it is not
proper in these particular circumstances to disapprove the FCP
Community's redesignation request. The Class I redesignation is
described in a final rulemaking notice also published in this Federal
Register. The Class I designation will result in lowering the allowable
increases in ambient concentrations of particulate matter, sulfur
dioxide, and nitrogen oxide within the reservation.
DATES: This action is effective on May 29, 2008.
FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permits
Section, Air Programs Branch (AR-18J), Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507;
telephone number: 312-886-0671; fax number: 312-886-5824; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. General Information
A. Does This Action Apply to Me?
This action will apply to applicants to the PSD construction permit
program on Class I trust lands of the Forest County Potawatomi
Community.
B. How Can I Get Copies Of This Document and Related Information?
1. Docket. EPA has established a docket for this action under
Docket ID No. EPA-R05-OAR-2004-WI-0002. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Air Docket, in the EPA Headquarters Library, Room
Number 3334 in the EPA West Building, located at 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation will be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST),
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744, and the telephone number
for the Air Docket is (202) 566-1742. The docket is also available
during normal business hours for public inspection and copying at the
Air Programs Branch, Region 5, EPA (AR-18J), 77 West Jackson Boulevard,
Chicago, Illinois 60604.
2. Electronic Access. You may access this Federal Register document
[[Page 23108]]
electronically through the EPA Internet under the ''Federal Register''
listings at: http://www.epa.gov/fedrgstr. In addition to being
available in the docket and on the EPA Federal Register Internet Web
site, an electronic copy of this notice is also available on the EPA's
New Source Review (NSR) Web site, under Regulations & Standards, at
http://www.epa.gov/nsr/actions.html.
C. How is This Notice Organized?
The information in this notice is organized as follows:
I. General Information
A. Does this Action Apply to Me?
B. How Can I Get Copies Of This Document and Related
Information?
C. How is this Notice Organized?
II. This Notice
A. Area Proposed for Redesignation
B. Authority for Invoking Dispute Resolution Procedures
C. Agency Action
II. This Notice
A. Area Proposed for Redesignation
On February 14, 1995, the FCP Community submitted a request to the
EPA to approve the redesignation of the air quality status of the FCP
Community's Reservation from ``Class II'' to ``Class I'' under the
CAA's PSD regulations. The area of FCP Community reservation lands that
has been proposed for redesignation to Class I comprises 10,818 acres,
all of which is located in Forest County, Wisconsin.
B. Authority for Invoking Dispute Resolution Procedures
Section 164(e) of the CAA and 40 CFR 52.21(t) provide the current
statutory and regulatory framework for resolving disputes between
states and Tribes over redesignation of an area or for permits for new
major emitting facilities that may cause or contribute to a cumulative
change in air quality under the PSD program. Section 164(e) provides
that if the Governor of an affected state or the appropriate Indian
Governing Body of an affected Tribe disagrees with a request for
redesignation by either party, then the governor or Indian ruling body
may request that EPA negotiate with the parties to resolve the dispute.
The statute provides that either party can ask the Administrator for a
recommendation to resolve the dispute, and if the parties fail to reach
an agreement during the negotiations, ``the Administrator shall resolve
the dispute and his determination, or the results of the agreements
reached through other means, shall become part of the applicable plan
and shall be enforceable as part of such plan.'' Section 164(e), 42
U.S.C. 7474(e).
Similarly, if a permit is proposed to be issued for any new major
emitting facility proposed for construction in any state which the
Governor of an affected state or the governing body of an affected
Indian Tribe determines will cause or contribute to a cumulative change
in air quality in excess of that allowed within the affected state or
reservation, the Governor or Tribal ruling body may invoke the same
dispute resolution mechanism. States or Tribes with Class I areas
cannot, however, ``veto'' permits that may adversely affect those
areas.
In resolving a dispute, the statute directs EPA to ``consider the
extent to which the lands involved are of sufficient size to allow
effective air quality management or have quality related values of such
area.'' As further discussed in the response to comments concerning the
disputed issues, the CAA and its implementing regulations do not
contain a minimum size requirement for area redesignation by a state or
Tribe, and the size of the redesignated area is relevant only to the
extent that it may impact effective air quality management or air
quality related values (AQRVs). The Act does not define AQRVs nor
identify specific AQRVs other than visibility (See section 165(d)(2)(B)
of the Act), but in the legislative history to the Act, AQRVs are
described as follows:
The term ``air quality related values'' of Federal lands
designated as Class I includes the fundamental purposes for which
such lands have been established and preserved by the Congress and
the responsible Federal agency. For example, under the 1916 Organic
Act to establish the National Park Service (16 U.S.C. 1), the
purpose of such national park lands ``is to conserve the scenery and
the natural historic objects and the wildlife therein and to provide
for the enjoyment of the same in such manner and by such means as
will leave them unimpaired for the enjoyment of future
generations.''
C. Agency Action
1. Background on Redesignation Request
Pursuant to section 164(c), 42 U.S.C. 7474(c), the FCP Community
Tribal Council formally submitted a proposal to redesignate certain FCP
Community reservation lands from Class II to Class I to the EPA on
February 24, 1995. A Class I air quality designation provides greater
protection for air resources by decreasing the increases allowed in the
ambient concentrations of particulate matter, sulfur dioxide, and
nitrogen oxides from any new major stationary sources or major
modifications to existing sources in the vicinity. The types of
facilities whose emissions could impact these lower limits are
generally new or expanding large industrial sources such as electric
utilities and pulp and paper mills. No new operating permits or
additional controls would be required for existing sources solely as a
result of a Class I designation.
Along with reducing allowable concentrations of key pollutants,
Class I areas may also include AQRVs which are intended to further
protect air quality. In the case of the FCP Community redesignation,
the Tribe has proposed acidic and mercury deposition as the AQRVs it is
seeking to protect. Because state officials were concerned about AQRVs
and other issues, an intergovernmental dispute eventually developed and
the parties ultimately sought dispute resolution under section 164(e).
By statute, the Agency must approve or disapprove a request for
redesignation. Accordingly, on June 29, 1995, EPA published a notice in
the Federal Register (FR) proposing to approve the redesignation
request by the FCP Community to Class I area status. The notice
provided for a 60 day public comment period. However, on June 8, 1995,
the Governors of Wisconsin and Michigan sent a joint letter to EPA
objecting to EPA's proposal to grant the FCP Community request for
redesignation and requesting dispute resolution. The June 8 letter
focused on two concerns, first, the states' perception that EPA lacked
rules to handle such redesignation requests and the implementation of
non-federal Class I areas, and second, that a non-federal Class I area
would ``significantly infringe upon the ability of our state
governments to manage the natural resources of our states.'' \1\
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\1\ Letter from Governor Tommy G. Thompson and Governor John
Engler to Carol Browner, June 8, 1995.
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To address their concerns, the Agency published a FR notice (60 FR
40139) on August 7, 1995, postponing the scheduled August 2, 1995
public hearing and extending, at the states' request, the public
comment period indefinitely while the Agency attempted to negotiate
with the states and respond to the issues they had raised.
As already noted, section 164(e) of the Act allows either the
Governor of a state or the Indian ruling body that disagrees with a
proposed redesignation to request the Administrator to enter into
negotiations with the parties involved to resolve the dispute. In
response to the Governors' letter, EPA contracted with a professional
mediation service (RESOLVE, Inc.) to provide mediation
[[Page 23109]]
services. During 1995, Wisconsin and the FCP Community began work
toward developing a Memorandum of Understanding, and invited Michigan
to participate in this process. RESOLVE discussed the case with EPA and
the parties, and circulated resumes and a list of potential mediators
for comment by the parties, but the parties could not agree on a
mediator and none was selected.
In the meantime, in partial response to the states' request that
EPA promulgate rules to address non-federal Class I areas, EPA had
formed a senior workgroup to cooperatively develop options for
consideration by the states and Tribes regarding roles and
responsibilities of non-Federal Class I area managers. To gather public
comment on different proposals, EPA published an advanced notice of
proposed rulemaking (ANPR) on May 16, 1997. 62 FR 27158 (May 16, 1997).
The EPA held public workshops in Chicago and Phoenix on the ANPR, and
gathered testimony on the options for proposed rulemaking. 62 FR 33786
(June 23, 1997). The states had requested that EPA's action of the FCP
Community Class I request be delayed until after the Agency could
complete this rulemaking, but the rulemaking was not finalized.\2\
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\2\ Thompson and Engler to Mary Nichols, February 6, 1977;
Russell J. Harding, Director MDEQ, to EPA Air Docket, August 8,
1997. In any case, the States viewed the ANPR as inadequate because
``the rulemaking will not address all of our concerns related to
Tribal Class I redesignation. The EPA must promulgate adequate rules
governing all aspects of Class I redesignation before proceeding
with a final decision on the Potawatomi or any other Tribal Class I
requests (emphasis in original).''
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From 1995 through 1997, EPA engaged in an extended correspondence
with Wisconsin and Michigan regarding the proposed redesignation and
how to address both states' concerns, as reflected in the record for
this action.
Following nearly 2 years of discussions, however, the states and
the Tribe had not reached a resolution of the issues that had been
raised by the states, nor had EPA completed the public notice process
on the proposed redesignation. The issues included for Michigan, in
addition to the two concerns discussed above, that the Agency
promulgate additional rules to implement the dispute resolution
provision at CAA section 164(e), that the Agency impose its own
requirement that non-federal Class I areas be limited to those
exceeding 5,000 acres in size with specified ``uniqueness'' criteria,
and that the Agency promulgate additional rules to cover all aspects of
implementing the requirements of established non-federal Class I area
requirements.\3\
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\3\ Letter from Russell J. Harding, MDEQ to Carlton Nash, Chief,
Regulation Development Section, Region V EPA, September 15, 1997.
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In the absence of an agreed resolution of either of the states'
issues, on July 10, 1997, EPA moved to bring closure to the rulemaking
process by publishing a notice for two informational meetings and two
public hearings on the FCP Community's redesignation request with a
public comment period to close on September 15, 1997. 62 FR 37007 (July
10, 1997). EPA held public hearings on the proposed redesignation on
August 12, 1997, in Carter, Wisconsin, and August 13, 1997, in
Rhinelander, Wisconsin. By the close of the public comment period, EPA
had received more than 120 comments on the proposed redesignation.
On April 21, 1998 \4\, Wisconsin requested that EPA reinitiate the
dispute resolution process under section 164(e). In response, EPA sent
letters to the State of Wisconsin, the State of Michigan, and the FCP
Community requesting a meeting to begin the negotiations to resolve the
dispute. EPA requested that the parties each identify its chief
negotiator, and that each party submit a written list of issues that it
wished to submit to the dispute resolution process. EPA, in
consultation with the parties, requested RESOLVE to select a mediator,
and this time, Triangle Associates, Inc., Seattle, Washington, was
chosen to mediate the discussions.
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\4\ Letter from Governor Tommy Thompson to Richard Wilson,
Acting Assistant Administrator for Air and Radiation. April 21,
1998.
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EPA requested that the mediator interview each of the parties,
discuss the issues submitted by each party, and structure a dispute
resolution process tailored to the needs of this dispute. Following the
initial interview, the Agency requested an initial meeting of all
parties to agree upon a protocol, establish a list of issues
appropriate for discussion under section 164(e), and plan a series of
further meetings aimed at resolving the dispute.
The first dispute resolution meeting occurred on September 2, 1998,
at the Region 5 offices in Chicago, Illinois. Both the States of
Wisconsin and Michigan participated in this meeting, although Michigan
formally announced its participation solely as an ``observer.'' \5\
During this meeting, the states and the Tribe identified issues of
concern and attempted to find areas of overlap that could potentially
lead to resolution.
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\5\ Letter from [Gary R. Hughes, acting for] Russell J. Harding,
Director MEDQ, to David A. Ullrich, Acting Regional Administrator,
August 20, 1998.
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Following this first meeting, the parties requested that EPA
examine the twenty-one issues submitted for dispute resolution to
determine which would be appropriate for discussion and resolution
under section 164(e) of the CAA. EPA Region 5, in consultation with
EPA's headquarters offices (Office of Air and Radiation, Office of
General Counsel, and Office of Air Quality Planning and Standards), by
letter of November 6, 1998, ultimately submitted a list of six suitable
topics for further discussion and resolution to the parties. These
issues included: ``(1) Whether the lands proposed for redesignation are
of sufficient size to allow for effective air quality management; (2)
the extent to which the lands proposed for redesignation have
sufficient size to have AQRVs; (3) the off-reservation impacts of
redesignation as discussed in the [FCP Community's] Technical Report;
(4) the Tribe's choice of mercury deposition as an AQRV; (5) the
Tribe's choice of AQRVs; and (6) the roles and responsibilities of the
respective parties in the dispute resolution discussion on September 2,
1998.'' \6\ The Agency also informed the parties that the remaining
issues were either unsuitable for discussion under the CAA section
164(e), or where wholly within EPA's purview as a decision maker under
CAA section 164(b) and 164(e).
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\6\ Letter from Stephen Rothblatt, Acting Director, Air and
Radiation Division, Region 5, to George E. Meyer, Secretary WDNR,
and Joseph Young, attorney for FCP, November 6, 1998 (cc to Denis
Drake, MDEQ).
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On November 16, 1998, the Tribe and the State of Wisconsin held a
second dispute resolution meeting in Green Bay, Wisconsin, but the
State of Michigan elected not to participate in this meeting. Following
several meetings, Wisconsin and the Tribe reached an agreement that
resolved their dispute.
The parties circulated the final agreement for signature, and the
EPA Region 5 Regional Administrator concurred on the agreement on
October 12, 1999. Consistent with CAA section 164(e), the terms of the
agreement constitute the resolution of the dispute between Wisconsin
and the Tribe.
However, after observing the first dispute resolution session on
September 2, 1998, the State of Michigan did not participate in any of
the other dispute resolution sessions between the State of Wisconsin
and the FCP Community. Triangle Associates, Inc. continued to keep
Michigan abreast of the dispute resolution proceedings by forwarding
the minutes of each negotiating session
[[Page 23110]]
to the state. Believing that the negotiations with Michigan had reached
an impasse, on August 4, 1999, the Forest County Potawatomi Vice-
Chairman contacted EPA in writing to request that the Administrator
resolve the dispute with the State of Michigan under section 164(e). On
December 22, 1999, the MDEQ sent a letter to EPA requesting a meeting
between the FCP Community and Michigan as a continuation of the dispute
resolution Michigan had invoked under section 164(e), stating that
while the state still considered all of the issues it had previously
raised to be unresolved, ``in the interest of resolving this matter, I
request that [EPA] begin a negotiation with the FCP Community and the
State of Michigan, as a continuation of the dispute resolution process,
and in an effort to address the comments and resolve the objections
previously forwarded by the State of Michigan.'' \7\
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\7\ Letter from Russell J. Harding, MDEQ to Stephen Rothblatt,
Acting Director, Air and Radiation Division, Region 5, December 22,
1999.
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On April 25, 2000, Michigan submitted a list of twelve issues for
discussion in the new round of dispute negotiations, which corresponded
to issues previously raised by the state.\8\ On June 23, 2000, the FCP
Community submitted a letter to EPA responding to Michigan's request
for dispute negotiations. The EPA set up a meeting between Michigan,
the FCP Community, and EPA on January 9, 2001, in Chicago, Illinois.
The parties exchanged initial draft proposed principles for resolution
of the dispute negotiation. After reviewing their respective proposed
principles, the parties could not reach an agreement. On February 12,
2001, the FCP Community submitted a letter to EPA requesting an EPA
determination to resolve the dispute and adopt the FCP Community
proposal as the final determination. On February 23, 2001, EPA sent a
letter to both parties requesting that they submit to EPA their
positions on the dispute negotiation and their proposals for
resolution. On March 16, 2001, Michigan submitted its position on the
section 164(e) resolution to EPA, reiterating the two central concerns
originally identified in the joint-states' letter of June 8, 1995: (1)
Lack of formally promulgated rules, and (2) potential impact of Class I
area on state's air program management. The letter concluded ``if the
EPA's final action does not impose any additional obligations upon
Michigan's air program and does not subject Michigan air use permits to
section 164(e) dispute resolution review, the need for Michigan to
request review by the U.S. Sixth Circuit Court of Appeals of the
designation of FCP Community lands may be obviated.'' \9\ On March 19,
2001, the FCP Community submitted its position on the section 164(e)
resolution to EPA.
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\8\ Letter from Russell J. Harding, MDEQ to Stephen Rothblatt,
Acting Director, Air and Radiation Division, Region 5, April 25,
2000.
\9\ Letter from Russell J. Harding, MDEQ to Stephen Rothblatt,
Acting Director, Air and Radiation Division, Region 5, March 16,
2001.
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On February 3, 2003, the FCP Community contacted EPA to request
that the Agency's actions on the rulemaking be suspended for a 90-day
period to allow the Tribe to attempt a bilateral negotiation with the
State of Michigan's new administration. EPA encouraged the parties to
meet and offered to reinitiate the dispute resolution process with the
third-party mediator should the parties request this. On February 14,
2003, MDEQ responded that it would participate in bilateral
discussions, but considered these outside the scope of the CAA section
164(e) dispute resolution process.\10\ These discussions failed to
produce an agreement, and in November 2003, the Tribe requested that
EPA move forward with the rulemaking request.\11\
Although EPA provided updates for the states and Tribe on the
progress of completing the rulemaking process, there was no further
resolution of the issues raised by Michigan by the time EPA published
the proposed FIP in December 2006.
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\10\ Letter from Steven E. Chester, Director MDEQ, to Al Milham,
Vice Chairman, FCP Community, February 14, 2003.
\11\ Letter from Al Milham, Vice Chairman, FCP Community to
Steve Rothblatt, Director, Air and Radiation Division, Region 5,
November 24, 2003.
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2. EPA's Decision Regarding the Dispute Resolution Between the FCP
Community and the State of Michigan
Michigan submitted extensive comments opposing the proposed Federal
Implementation Plan (FIP) and reiterating its concerns regarding the
redesignation. It objected to EPA's proposal to implement the
redesignation through a FIP, to the validity of the agreement between
Wisconsin and the Tribe, and to approving the redesignation before
completing a rulemaking proposed in August 2006. See Proposed Rule:
Review of New Sources and Modifications in Indian Country, 71 FR 48696
(August 21, 2006).
However, none of these comments provide a legally supportable basis
for denying the redesignation. The CAA gives EPA only a very limited
role in reviewing a redesignation request. As a general rule, EPA can
``disapprove the redesignation of any area only if [it] finds, after
notice and opportunity for public hearing, that such redesignation does
not meet the procedural requirements'' in CAA section 164(b) and 40 CFR
52.21. ``Once these procedural requirements are met, EPA must approve
the request for redesignation.'' Administrator, State of Arizona v.
EPA, 151 F.3d 1205, 1211 (9th Cir. 1998), hereafter Arizona v. EPA. EPA
cannot ``re-weigh the effects of a proposed redesignation or second-
guess a tribe's decision to redesignate its reservation lands.'' Id. at
1212.
Where a neighboring state or tribe disagrees with the proposed
redesignation of an area, section 164(e) provides a narrow exception to
that general rule of limited EPA review. EPA believes that where there
is a dispute, it must consider whether to resolve the dispute by
disapproving the redesignation, based on the factors identified in
164(e). If EPA resolves the dispute in favor of the party requesting
redesignation, the dispute is terminated, and the only remaining
question is whether the Tribe met the procedural requirements of
164(b)(2). Because that inquiry involves only procedural adequacy, when
EPA conducts that second inquiry, it cannot consider any information
relating to any matter other than procedure, even if that information
was considered in the dispute resolution. Consistent with that, EPA is
treating this dispute resolution separately from the approval of the
redesignation request and is publishing the two separately.
In resolving a dispute over redesignation under 164(e), EPA ``must
consider the extent to which the lands involved are of sufficient size
to allow effective air quality management or have air quality related
values.'' Arizona v. EPA, construing CAA section 164(e). EPA recognizes
that this language requires EPA to consider the size of a reservation
in resolving a dispute. Consistent with that, in a previous dispute,
EPA rejected a state's claim that reservation lands consisting of five
noncontiguous parcels totaling 632 acres, with the smallest having
3.7594 acres should be disapproved; EPA found that the areas in
question ``were not too small to allow effective air quality management
or to have air quality related values.'' Arizona v. EPA (citing EPA
finding with approval).
In this dispute, the state has not seriously argued that the lands
the Tribe has requested for redesignation were too small ``to allow
effective air quality management or have air quality related
[[Page 23111]]
values.''\12\ Nevertheless, the statute directs EPA to consider that
subject.
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\12\ The State's arguments regarding size have centered on the
State's complaints that EPA has not unilaterally adopted regulations
that impose minimum acreage requirements of 5,000 acres on non-
federal class I areas. See for example, Russell Harding to Carlton
Nash, September 15, 1997, at 4; Letter from Russell Harding to
Stephen Rothblatt, April 25, 2000.
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In its decision to grant the Class I redesignation request for the
Yavapai-Apache reservation, EPA examined whether it would be difficult
to perform a PSD air quality modeling analysis that assessed the
impacts of a proposed source in such a situation. The EPA concluded
that, based on the modeling tools available at that time, it would be
relatively simple and practicable for a proposed source to project its
impact on the Class I area parcels and evaluate the analysis. See 61 FR
at 56457-56458. Moreover, current air quality planning and management
tools have become increasingly sophisticated and refined and apply to a
variety of area sizes and configurations, ranging from a single
facility to large metropolitan areas. For example, EPA, in coordination
with states has established nonattainment areas in states for the
purpose of implementing nonattainment planning requirements for the
lead National Ambient Air Quality Standards (NAAQS) that encompass
areas of only a few square kilometers. See e.g., 40 CFR 81.310 and 40
CFR 81.311. Conversely, there is an ozone transport region under the
CAA for the purpose of ozone nonattainment planning that spans from
Maine to northern Virginia. See section 184(a) of the CAA. Thus, EPA is
reluctant to establish rigid criteria regarding the geographic size,
geographic orientation, or population size of a Class I area that would
automatically disqualify certain Tribes (or states) from exercising the
authority conferred under section 164(c) to redesignate lands within
Reservations. Arizona v. EPA.
EPA believes it can evaluate the size of the lands in the proposed
redesignation area based upon the Agency's experience in the Yavapai-
Apache redesignation and other air quality planning requirements. EPA
also notes that it is expected to use caution in reversing
redesignation requests in resolving disputes. 61 FR at 56454-56455,
(citing CAA Legislative History, vol 3 at 326).
The lands in this parcel are similar to the lands in Yavapai in
containing noncontiguous parcels of various sizes. However, the lands
here are many times larger, with a total acreage in excess of 10,000
acres, compared with the 632 acres in Yavapai, and with the smallest
parcel being 80 acres, more than twenty times larger than the 3.7594
acre parcel in Yavapai. EPA recognizes the limits of fact matching, and
does not believe that comparing acreage is necessarily dispositive in
all cases. Nevertheless, it believes that based on both the result and
the rationale in Arizona v. EPA, it has no basis for disapproving the
redesignation based on size. EPA concludes that the size of the lands
is not too small to allow effective air quality management or have
AQRVs.
EPA must also consider whether it can consider any other factors,
and, if so, how to do so. While 164(e) directs EPA to consider size in
resolving a dispute, it does not mention other factors to consider, or
discuss what discretion EPA may have with regard to considering other
factors at all.
EPA believes that the mandatory language directing EPA to consider
whether the proposed redesignation lands ``are of sufficient size to
allow air effective air quality management or have air quality related
values'' clearly establishes size as the preeminent factor in resolving
disputes. EPA also believes that the references to ``effective air
quality management'' and ``air quality related values'' indicates that
those factors, too, may be relevant in some circumstances, to the
appropriate resolution of a dispute. Thus, for example, where EPA
concludes that some other factor besides size precludes effective air
quality management, it may have some limited authority to resolve a
dispute by disapproving a redesignation because effective air quality
management is impossible.
EPA construes the reference to AQRVs in conjunction with a second
use of the term in 164(e), providing that, if the parties so request,
``EPA shall make a recommendation to resolve the dispute and protect
the air quality related values of the land involved.'' 164(e) (emphasis
added). Thus, EPA believes that it has limited discretion to consider
protection of AQRVs in resolving a dispute, and that in some
circumstances, it may resolve a dispute by denying a redesignation
where approving the redesignation would not be consistent with
protecting AQRVs.
In sum, EPA has carefully considered the record in this case, and
concludes it is not appropriate to deny the redesignation based on the
size of the proposed area. EPA also concludes that the record does not
show that the redesignation would preclude effective air quality
management or be inconsistent with protecting AQRVs. EPA, therefore,
resolves the dispute by rejecting the state's suggestion to deny the
redesignation. EPA's approval decision is discussed in a separate
notice.
EPA also notes that it does not agree with the State of Michigan
comment that additional rulemaking should be proposed before EPA can
resolve the dispute or approve the redesignation. The statutes that
govern this decision, sections 164(b)(2) and 164(e) contain no
limitations on EPA's redesignation authority of the type Michigan
suggests.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxides,
Volatile organic compounds.
Dated: April 18, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-8969 Filed 4-28-08; 8:45 am]
BILLING CODE 6560-50-P