[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Rules and Regulations]
[Page 23111-23114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2004-WI-0002; FRL-8557-4]
Redesignation of the Forest County Potawatomi Community
Reservation to a PSD Class I Area; Dispute Resolution With the State of
Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of dispute resolution.
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SUMMARY: The purpose of this notice is to announce the 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 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 initiate the intergovernmental dispute
resolution process provided for in the CAA. The State of Wisconsin and
the FCP Community were able to reach an agreement concerning the
redesignation. After considering the final agreement signed by the FCP
Community and the State of Wisconsin, EPA finds that this
[[Page 23112]]
agreement resolves the dispute and no further action is required by
EPA. In a separate rulemaking published in this Federal Register, EPA
is finalizing its proposed decision to redesignate the FCP Community as
a non-Federal Class I area. 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: blathras.constantine@epa.gov.
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 Prevention of
Significant Deterioration (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
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 selected
parcels 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) of the CAA
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.
Pursuant to the statute and implementing regulations, EPA is not a
party to the dispute. The Administrator of EPA is, by statute,
designated as the final arbitrator of 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,
however, cannot ``veto'' permits that may adversely affect those areas.
While EPA has authority to resolve disputes, this authority is
exercised only if the parties in dispute do not reach an agreement
during the dispute resolution process. A discussion of EPA's
authorities to resolve disputes is found in EPA's notice resolving the
dispute between the State of Michigan and the FCP Community, published
in this Federal Register. Where, as here, in the case of Wisconsin and
the FCP Community, the parties reached their own resolution of their
issues, EPA believes that the agreement becomes part of the
``applicable plan'' and the dispute is ended. 42 U.S.C. 7474(e).
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 air quality related values (AQRV) 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
[[Page 23113]]
AQRVs they are 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 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 to request to the
Administrator to enter into negotiations with the parties involved to
resolve such a dispute. In response to the Governors' letter, EPA
contracted with a professional mediation service (RESOLVE, Inc.) to
provide mediation services. RESOLVE discussed the case with EPA and the
parties, and circulated resumes and a list of potential mediators for
comment by the parties.
In the meantime, EPA had formed a senior EPA 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. 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 ANPR was not finalized
however, and no new regulations were established.
In further follow-up to the Wisconsin and Michigan Governor's
letters invoking dispute resolution, EPA engaged in an extended
correspondence with Wisconsin and Michigan regarding the relationship
of the proposed redesignation to proposed rulemaking, which can be
found in the record for this notice. 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.
Therefore, on July 10, 1997, EPA published notice for two informational
meetings and public hearings on the FCP Community's redesignation
request and established a close for the public comment period of
September 15, 1997. 62 FR 37007 (July 10, 1997). EPA held two public
hearings on the proposed redesignation on August 12, 1997, in Carter,
Wisconsin, and August 13, 1997, in Rhinelander, Wisconsin,
respectively. By the close of the public comment period, EPA had
received more than 120 comments on the proposed redesignation.
On April 21, 1998 \2\, 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 their chief
negotiator, and that each party submit a written list of issues that
they wished to resolve through the dispute resolution process. EPA, in
consultation with the parties, requested RESOLVE to select a mediator,
and Triangle Associates, Inc., Seattle, Washington, was chosen to
mediate the discussions.
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\2\ Letter from Governor Tommy Thompson to Richard Wilson,
Acting Assistant Administrator for Air and Radiation, April 21,
1998.
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Once a mutually acceptable mediator had been agreed upon, EPA
requested that the mediator establish a formal process for conducting
compilation of issues, organizing and structuring meetings, and
communication among the parties.\3\ This included interviews with each
of the parties, discussions of the issues lists submitted by each
party, and structuring a series of meetings. Following an initial
interview, the Agency requested a 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.
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\3\ The public docket for this rulemaking contains documents
relating to the dispute resolution process except those that are
covered by privilege, such as the federal Alternative Dispute
Resolution Act. Privileged documents are listed in the index, though
have not been made available to the public.
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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, and states and
Tribe each identified issues of concern and attempted to find areas of
overlap that could potentially lead to resolution.
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 to the parties a list
of six suitable topics for further discussion and resolution. 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 air quality related values; (3) the off-
reservation impacts of redesignation as discussed in the [FCP
Community's] Technical Support Document; (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.'' \4\ 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 decision maker under CAA section 164(b) and 164(e).
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\4\ 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 parties held a second dispute resolution
meeting in Green Bay, Wisconsin. However, the State of Michigan elected
not to participate in this meeting.\5\
[[Page 23114]]
During the second meeting, the parties discussed each of the six
issues, with each party having the opportunity to raise their specific
concerns. The State of Wisconsin and FCP Community exchanged ideas for
achieving a mutually acceptable resolution, which addressed both
parties' concerns. The parties scheduled another negotiating session
for December.
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\5\ The State of Michigan did not participate in any subsequent
dispute resolution meetings between Wisconsin and the FCP. The
Administrator's resolution of the dispute between the State of
Michigan and the FCP Community is concurrently published in a
separate FR notice.
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On December 22, 1998, the parties met in Milwaukee, Wisconsin. As a
result of further discussions which took place at this meeting, the
parties developed a draft negotiation concept paper. The parties, as
well as EPA, agreed to seek concurrence from their respective boards
and governing bodies. The parties agreed that sufficient progress had
been made towards resolving the dispute to warrant another meeting in
February 1999.
The parties held another dispute resolution meeting on the FCP
Community reservation in Carter, Wisconsin on February 3, 1999. During
this meeting, the parties developed specific language that they wished
to include in a draft agreement in principle. After review by both
parties, as well as by EPA, the lead negotiators for the State of
Wisconsin, the FCP Community, and EPA signed the agreement, signifying
their good faith intent to seek concurrence from their respective
authorities and management. EPA was not a party to the dispute, and its
role was to acknowledge the parties' agreement.
Following the development of the agreement in principle document, a
drafting team comprised of representatives of the parties and from EPA
began developing the detailed terms of the final agreement. On April 8,
1999, the parties held a meeting to work out the language of the final
agreement. After each of the parties, as well as EPA, had an
opportunity to review and comment on the draft of the final agreement,
the parties agreed that another drafting session would be necessary.
The parties, together with EPA, held a final conference call to
complete the draft final agreement on June 7, 1999.
2. The FCP Community and the State of Wisconsin Memorandum of Agreement
The 1999 Memorandum of Agreement between the FCP Community and the
State of Wisconsin (FCP Community-Wisconsin MOA) fully resolves the
dispute between the state and the Tribe concerning the FCP Community's
request for Class I redesignation of its reservation lands. The Class I
Final Agreement provides a framework for establishing how the state and
FCP Community will implement the Class I area under their respective
authorities. The provisions of this agreement become effective upon
EPA's final action to approve the FCP Community's request for Class I
redesignation, as published in a separate final rule in the Federal
Register. While EPA also was a signatory to this agreement, EPA's role
in the process was to acknowledge the agreement entered into by the
parties on their own respective authorities.
3. Effect of the FCP Community and State of Wisconsin Memorandum of
Agreement on the Wisconsin State Implementation Plan (SIP)
CAA section 164(e) provides that ``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.'' CAA section 164(e), 42
U.S.C. 7474(e). The PSD program is implemented in Wisconsin under an
EPA approved State Implementation Plan (SIP) which excludes all of
Indian country within the state. The terms of the FCP Community-
Wisconsin MOA do not apply to the effects of the Class I redesignation
on the redesignated area, and thus are not appropriate for inclusion in
the Federal Implementation Plan (FIP) EPA is issuing in a concurrent
rulemaking, located in this Federal Register publication. Rather, the
agreement establishes certain special provisions regarding the effects
of the Class I redesignation on potential sources outside the
redesignated area. These provisions will need to be implemented by
revising the Wisconsin SIP and have been summarized by EPA as follows
in the December 18, 2006, Federal Register proposal:
[T]he agreement between the FCP Community and Wisconsin subjects
all major sources in Wisconsin located within a ten (10) mile radius
of any redesignated Tribal land to performing an increment analysis
and to meeting consumption requirements applicable to a Class I
area. Major sources located outside of ten (10) miles are subject to
increment analysis and consumption requirements applicable to any
redesignated Tribal land as if it were a Class II area. Also under
the agreement, all major sources within sixty-two (62) miles are
subject to an analysis of their impact on AQRVs of the redesignated
Tribal lands to determine if they will have an adverse impact on
these AQRVs.
71 FR 75696. As these special provisions differ from Wisconsin's
currently approved SIP for the PSD program, for this portion of the FCP
Community-Wisconsin MOA to become enforceable will require revision of
the Wisconsin SIP, which otherwise would not recognize a limitation of
the area in which the Class I increment analysis must be conducted.
EPA takes the position that it generally will not interfere with
the agreements reached between Tribes and states through the CAA's
164(e) dispute resolution process. However, to the extent that the
agreement reached under the terms of the MOA allows for restricting the
requirements normally associated with Class I areas, as these apply to
sources located outside a 10-mile radius of the redesignated
reservation lands, EPA takes the position that a revision of the
Wisconsin SIP will be necessary to implement this provision to
potential sources located outside boundaries of the redesignated
parcels. In the absence of such modification to the Wisconsin SIP, the
current PSD rules codified at 40 CFR Part 52 will apply to the FCP
Community's Class I area as approved in EPA's final action published in
this Federal Register.
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 record keeping requirements, Sulfur dioxides,
Volatile organic compounds.
Dated: April 18, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8-8970 Filed 4-28-08; 8:45 am]
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