[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56461-56470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27849]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ 58-1-7131-a; FRL-5634-4]
Arizona Redesignation of the Yavapai-Apache Reservation to a PSD
Class I Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The purpose of this action is to approve the request by the
Yavapai-Apache Tribal Council to redesignate the Yavapai-Apache
Reservation (``the Reservation'') as a non-Federal Class I area under
the Clean Air Act program for prevention of significant deterioration
of air quality. The Class I designation will result in lowering the
allowable increases in ambient concentrations of particulate matter,
sulfur dioxide, and nitrogen dioxide on the Reservation.
EFFECTIVE DATE: December 2, 1996.
ADDRESSES: The public docket for this rulemaking, which includes
additional information related to the final rule and materials
submitted to EPA, is available for public inspection and copying during
normal business hours. Please contact the EPA official listed below at
the given address. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Jessica Gaylord, Air and Toxics
Division (A-5-1), U.S. EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105-3901, (415) 744-1290. An electronic copy of this
Federal Register notice and other pertinent information is available on
the World Wide Web at this Internet address: http://www.epa.gov/
region09/air/yavapai/
SUPPLEMENTARY INFORMATION:
I. The Clean Air Act's Program to Prevent Significant Deterioration
of Air Quality (PSD)
A. Background
The genesis of the PSD program under the Clean Air Act (CAA) was a
lawsuit brought by the Sierra Club to enjoin EPA's approval of state
implementation plans that allowed air quality degradation in areas
having air quality better than the national ambient air quality
standards. Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972),
aff'd per curiam, 4 Env't Rep. Cases 1815 (D.C. Cir. 1972), aff'd by an
equally divided court, sub. nom. Fri v. Sierra Club, 412 U.S. 541
(1973). The district court granted the injunction reasoning that the
stated purpose of the Clean Air Act in section 101(b)(1) to ``protect
and enhance'' the quality of the nation's air embodied a non-
degradation policy. Sierra Club at 255-56.
In response to the Sierra Club decision EPA adopted a PSD program.
See 39 FR 42510 (Dec. 5, 1974). The administrative program was
superseded by a congressionally-crafted program in the 1977 amendments
to the Clean Air Act. Pub. L. No. 95-95, 91 Stat. 685; see generally
Alabama Power v. Costle, 636 F.2d 323, 346-52 (D.C. Cir. 1979)
(recounting history of PSD program preceding and including the adoption
of the 1977 amendments). EPA presently has two sets of regulations
implementing the 1977 statutory PSD program: (1) 40 CFR 51.166
establishes the requirements for state-administered PSD programs, and
(2) 40 CFR 52.21 provides for Federal implementation of PSD
requirements to address programmatic gaps.1
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\1\ The regulations have not been revised to conform with
changes made in the 1990 Clean Air Act amendments. Pub. L. No. 101-
549, 104 Stat. 2399.
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B. PSD Areas and Classifications
EPA establishes national ambient air quality standards (NAAQS)
under the CAA. See 40 CFR Part 50. Areas nationwide are ``designated''
under section 107 of the CAA based on their air quality status relative
to the NAAQS. The PSD program applies to areas designated
``attainment'' and ``unclassifiable'' under section 107 of the CAA--
areas that meet the NAAQS, or areas that cannot be determined on the
basis of available information as meeting or not meeting the NAAQS.
These areas are often referred to as ``PSD areas.''
PSD areas are further categorized as Classes I, II or III. The
classification of an area determines the amount or ``increment'' of air
quality deterioration that is allowed over a baseline level. Class I
areas have the smallest increments and therefore allow the least amount
of air quality deterioration. Conversely, Class III areas have the
largest air quality increments and allow the greatest deterioration. In
all instances, the NAAQS represent the overarching ceiling that may not
be exceeded in a PSD area, notwithstanding any increment.
There are PSD increments for particulate matter, sulfur dioxide and
nitrogen dioxide. EPA's PSD regulations establish the incremental
amount of air quality deterioration of these pollutants that is allowed
in Class I, II and III areas. See 40 CFR 52.21(c).
When Congress enacted the PSD program in 1977 it provided that
specified Federal lands, including
[[Page 56462]]
certain national parks and wilderness areas, must be designated as
Class I areas and may not be redesignated to another classification.
See section 162(a) of the CAA. These areas are called mandatory Federal
Class I areas. The statute also carried forward as Class I areas any
areas redesignated as Class I under EPA's pre-1977 regulations. The
Northern Cheyenne reservation was a redesignated Class I area affected
by this provision. See Nance v. EPA, 645 F.2d 701 (9th Cir. 1981), cert
denied, Crow Tribe of Indians v. EPA, 454 U.S. 1081 (1981). In the 1977
amendments Congress provided that all other PSD areas of the country
would be designated as Class II areas. See section 162(b) of the CAA.
C. PSD Class I Redesignation Requests and Procedural Requirements
As noted, Congress designated all PSD areas of the country as Class
II, except for special Federal lands and pre-existing redesignated
Class I areas. At the same time, Congress gave States and Indian Tribes
broad authority to redesignate Class II areas as Class I. See section
164 of the CAA.
Section 164(c) of the CAA expressly provides for PSD redesignations
by Federally recognized Indian Tribes:
Lands within the exterior boundaries of reservations of
Federally recognized Indian tribes may be redesignated only by the
appropriate Indian governing body.
The Department of the Interior periodically publishes a list of Tribes
officially recognized by the Federal government. See 60 FR 9250 (Feb.
16, 1995) (identifying Yavapai-Apache Nation of the Camp Verde
Reservation, Arizona).
Congress has generally established a narrow role for EPA in
reviewing State and Tribal PSD redesignations. Under EPA's pre-1977
regulations, EPA would disapprove a redesignation submittal if the
requesting State or Tribe arbitrarily and capriciously disregarded the
following considerations: (1) growth anticipated in the area, (2) the
social, environmental, and economic effects, or (3) any impacts on
regional or national interests. See 39 FR at 42515.
By contrast, the PSD program enacted by Congress in 1977 provides
that EPA may disapprove a redesignation request only if it finds, after
notice and opportunity for public hearing, that the request does not
meet the applicable procedural requirements. See section 164(b)(2) of
the CAA. The legislative history indicates that Congress's 1977
amendments were intended to curtail EPA's authority to disapprove a
redesignation request under its pre-1977 regulations, giving States and
Tribal governments greater discretion in this area:
The intended purposes of [the congressional 1977 PSD program]
are . . . (3) to delete the current EPA regulations and to
substitute a system which gives a greater role to the States [,
Tribal,] and local governments and which restricts the Federal
Government in the following ways: . . . (b) By eliminating the
authority which the Administrator has under current EPA regulations
to override a State's [or Tribe's] classification of an area on the
ground that the State [or Tribe] improperly weighed energy,
environment, and other factors.
See H.R. Rep. No. 294, 95th Cong., 1st Sess. 7-8 (1977) reprinted in
Senate Comm. on the Environment and Public Works, 95th Cong., 2d Sess.,
A Legislative History of the Clean Air Act Amendments of 1977, vol. 4
at 2474-75 (1978) (hereafter ``1977 CAAA Legislative History'').2
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\2\ While this language refers only to states, both the statute
and the legislative history make it clear that the discussion
applies equally to redesignations by tribes. See, e.g., S. Rep. No.
127, 95th Cong., 1st Sess. 9 (1977) reprinted in 1977 CAAA
Legislative History, vol. 3 at 1383.
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Accordingly, EPA's current regulations provide for EPA disapproval
of a redesignation only if the requesting State or Tribe did not meet
the applicable procedural requirements in adopting its proposed
redesignation:
The Administrator shall disapprove, within 90 days of
submission, a proposed redesignation of any area only if he finds,
after notice and opportunity for public hearing, that such
redesignation does not meet the procedural requirements of [40 CFR
52.21(g)].
See 40 CFR 52.21(g)(5). In adopting the regulatory revisions to reflect
the statutory provisions, EPA explained that in light of section
164(b)(2) of the CAA it ``will no longer be able to base a disapproval
of a proposed redesignation on a finding that the State [or Tribal]
decision was arbitrary or capricious.'' See 42 FR 57479, 57480 (Nov. 3,
1977). Thus, so long as the applicable procedures are met, the statute
and implementing regulations generally leave the decision to constrict
or expand the amount of allowable air quality deterioration to the
State or Tribal authority requesting the redesignation.
Several Indian Tribes have had lands within reservation boundaries
redesignated as Class I areas. The EPA has previously approved Class I
redesignation requests for the Northern Cheyenne Indian Reservation,
the Flathead Indian Reservation, the Fort Peck Indian Reservation and
the Spokane Indian Reservation. See 40 CFR 52.1382(c) and 52.2497(c).
The procedural requirements for a Class I redesignation by an
Indian Governing Body are as follows:
(1) At least one public hearing must be held in accordance with
procedures established in 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 Tribe's 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 the
availability of such discussion;
(4) Prior to the issuance of the public notice for a proposed
redesignation of an area that includes Federal lands, the Tribe must
provide written notice to the appropriate Federal Land Manager and an
adequate opportunity for the Federal Land Manager to confer with the
Tribe and submit written comments and recommendations;
(5) Prior to proposing the redesignation, the Indian Governing Body
must consult with the State(s) in which the Reservation is located and
that border the Reservation. See 40 CFR 52.21(g)(4).
II. Yavapai-Apache Tribe Request to Redesignate its Reservation
From Class II to Class I
On December 17, 1993, the Yavapai-Apache Tribal Council (``the
Tribal Council'' or ``the Tribe'') submitted to EPA a request to
redesignate the Yavapai-Apache Reservation from Class II to Class I.
The Tribe's submittal explains that its redesignation request is to
protect its air quality for its citizens:
The Yavapai-Apache Tribe desires to maintain high quality air
standards for its citizens by redesignating Reservation lands as a
Class I Clean Air area.
See Yavapai-Apache Tribe Air Quality Redesignation Plan, Sept.
1993, at p. 1.
The Yavapai-Apache Reservation is located in the State of Arizona.
The Reservation is comprised of five land parcels which total
approximately 635 acres. The Tribe's redesignation request includes its
entire Reservation. Maps of the Reservation are included as appendices
to the Tribe's September 1993 Air Quality Redesignation Plan, which is
available at the public docket identified at the beginning of this
document.
[[Page 56463]]
The Reservation is approximately 90 miles north of Phoenix in the
Verde Valley of central Arizona. The Verde Valley is situated near the
``red rock'' country of Sedona and Oak Creek Canyon. Nearby national
forests include the Coconino National Forest, the Kaibab National
Forest and the Prescott National Forest. The Montezuma Castle,
Montezuma Well and Tuzigoot National Monuments are located within the
Verde Valley in the vicinity of the Reservation. In addition, the
Sycamore Canyon Wilderness Area, designated a mandatory Federal Class I
area under the CAA, is located a few miles north of the Town of
Clarkdale. See 40 CFR 81.403.
EPA reviewed the Tribe's request and preliminarily determined that
it met the applicable procedural requirements of 40 CFR 52.21(g)(4). On
April 18, 1994, EPA published a notice of proposed rulemaking in the
Federal Register proposing to approve the request and announced a 30-
day period to receive public comment regarding whether the Tribe had
met the procedural requirements. See 59 FR 18346.
At the request of the Town of Clarkdale, which is located adjacent
to the Clarkdale parcel of the Yavapai-Apache Reservation, EPA held a
public hearing on the proposed redesignation on June 22, 1994. EPA's
public hearing notice provided that the scope of the public hearing
would be limited to whether the Tribe has satisfied the redesignation
procedural requirements. EPA indicated that only comments which address
this issue would be considered in EPA's final decision to approve or
deny the redesignation request. EPA's public hearing notice also
indicated that EPA would allow until July 6, 1994 for the submittal of
written comments. In order to facilitate public understanding about
EPA's proposed action, EPA indicated that it would begin the public
hearing with an explanation of the Class I redesignation process and
the PSD program.
Following the public hearing, the Town of Clarkdale requested an
extension of the public comment period. On July 20, 1994, EPA published
a Federal Register document announcing an extension of the public
comment period, providing the public until August 22, 1994 to submit
written comments addressing whether the Tribe has met all of the
procedural requirements of 40 CFR 52.21(g). See 59 FR 37018-19.
The Governor of Arizona submitted a letter dated August 22, 1994,
to EPA indicating that ``[t]he effects of the proposed redesignation
are not apparent to all of the stakeholders, and confusion exists about
the potential impacts of the Agency's proposed action.'' The Governor's
letter requested that EPA initiate dispute resolution of the matter
pursuant to section 164(e) of the CAA.
In brief, section 164(e) of the CAA provides that if a State
affected by the redesignation of an area by an Indian Tribe disagrees
with the redesignation, the Governor may request EPA to enter into
negotiations with the parties involved to resolve the dispute. Section
164(e) further provides that if the parties do not reach agreement, EPA
shall resolve the dispute.
III. Today's Action
A. EPA's Final Decision to Approve the Tribe's Class I Redesignation
Request
In today's document, EPA is announcing its decision to approve the
Yavapai-Apache Tribe's December 17, 1993 request to redesignate its
reservation from Class II to Class I for PSD purposes. The approval
means that Class I PSD increments will apply within the reservation's
boundaries, allowing a smaller amount of allowable air quality
deterioration within the reservation than as a Class II area. See 40
CFR 52.21(c). In addition, a new major source or major modification
which would construct within 10 km of the Reservation will be subject
to review under PSD if emissions would have an impact on the
Reservation equal to or greater than one microgram per cubic meter
(g/m\3\), (24-hour average). See 40 CFR 52.21(b)(2), 40 CFR
52.21(b)(23), and 40 CFR 52.21(i).
EPA received a number of comments on its April 18, 1994 proposal to
approve the Tribe's Class I redesignation. EPA has carefully reviewed
and considered comments received during the public comment period in
making its decision to approve the redesignation request. A number of
the commenters raised issues outside the scope of EPA's review. As
previously discussed, generally EPA may disapprove a redesignation
request only if EPA finds that the redesignation does not meet the
applicable procedural requirements. See 40 CFR 52.21(g)(5). EPA's
review of the Tribe's request in light of the comments revealed no
procedural error by the Tribe. Thus, EPA is finalizing its April 18,
1994 preliminary judgment that the Tribe met the procedural
requirements.
In a separate document published in today's Federal Register, EPA
explained the section 164(e) dispute resolution process, and addressed
the issues presented. EPA's notice settles the dispute, as the State
and the Tribe were unable to resolve their disagreements about the
proposed redesignation. Once dispute resolution has been initiated, the
CAA provides in section 164(e) that EPA ``consider the extent to which
the lands involved are of sufficient size to allow effective air
quality management * * *.'' The State thus argued that the five
separate parcels that comprise the Yavapai-Apache Reservation are too
small and scattered to allow for effective air quality management.
Among the principal issues, the State also emphasized its concern
regarding public understanding of the possible effects of this
redesignation and issues related to potential future requests for
redesignation by other Tribes. In settling the dispute, EPA disagreed
with the State's conclusion that effective air quality management would
be adversely affected by the redesignation. In addition, EPA has
pledged its continuing commitment to facilitating public understanding
of the effects of the redesignation. Moreover, each redesignation
request must be evaluated on its merits, and concerns relating to
potential future requests do not provide a basis for the denial of the
Yavapai-Apache request. EPA's resolution of the dispute is consistent
with the decision announced here, to approve the Tribe's Class I
redesignation request. The reader is referred to the separate document
published in today's Federal Register for more information on EPA's
decision making in resolving the intergovernmental dispute.
B. Public Comments
As noted, EPA received many comments on its April 18, 1994 proposal
to approve the Yavapai-Apache Tribe's Class I redesignation request.
Many commenters, including local residents who are not Tribal members,
supported EPA's proposal. Other commenters identified alleged
procedural errors or objected to the Class I redesignation for other
reasons. EPA also received comments questioning whether all of the land
parcels identified by the Tribe are part of the Tribe's reservation.
While EPA has reviewed all comments received, only those comments
identifying potential procedural errors and claiming that the Tribal
submittal includes lands outside the reservation are relevant in
determining whether EPA should modify its proposal and disapprove the
request, in part or full. As noted, EPA may disapprove a redesignation
request only if EPA finds that it does not meet the applicable
procedural requirements. See section 164(b)(2) of the CAA & 40 CFR
52.21(g)(5). In addition to pertinent procedural issues, the question
[[Page 56464]]
regarding the affected land parcels is relevant because the underlying
statutory authority for Tribal redesignations only includes lands
within reservation boundaries. See section 164(c) of the CAA.
All other public comments objecting to the redesignation do not
provide a basis for EPA disapproval. In the discussion that follows,
EPA has nevertheless addressed many such comments contesting the
redesignation, for the sole purpose of facilitating the public's
understanding of today's action. EPA is providing separate responses to
the remaining comments in the Technical Support Document (TSD)
available in the public docket for this action, identified at the
beginning of this document.
1. Scope of Yavapai-Apache Reservation
As noted, the Yavapai-Apache Tribe redesignation request
encompassed five separate land parcels that collectively comprise the
Tribe's reservation. EPA received comments questioning whether two of
the parcels included in the redesignation request, the parcel near the
Montezuma Castle National Monument and the Clarkdale parcel, were
actually encompassed in the Yavapai-Apache Reservation and therefore
allowed to be redesignated under the Act.
The Clean Air Act provides that lands within the exterior
boundaries of reservations of federally recognized Indian tribes may be
redesignated by the appropriate Indian governing body. See section
164(c) of the CAA. The PSD regulations define ``Indian Reservation'' as
``any federally recognized reservation established by Treaty,
Agreement, executive order, or act of Congress.'' See 40 CFR
52.21(b)(27). In addition to lands formally designated as
``reservations,'' EPA considers trust land validly set apart for use of
a tribe to be an ``Indian Reservation.'' See Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511
(1991); United States v. John, 437 U.S. 634, 648-49 (1978); 59 FR
43956, 43960 (Aug. 25, 1994); 56 FR 64876, 64881 (Dec. 12, 1991). EPA
has indicated that it will be guided by relevant case law in
interpreting the scope of ``reservation'' under the Clean Air Act. See
59 FR 43960.
The Bureau of Indian Affairs (BIA) has certified by letter to EPA,
dated May 13, 1994, that all five parcels identified in the
redesignation request are lands held in trust by the U.S. government
for the beneficial use of the Tribe, including the parcels near
Montezuma Well National Monument and Clarkdale. The BIA certification
was accompanied with an abstract of the various title documents and BIA
and U.S. Geological Survey quadrangle maps showing the parcels. The BIA
certification is available for inspection at the public docket
identified at the beginning of this document. EPA therefore concludes
that all of the lands included in the Tribe's redesignation submittal
are lands encompassed within its reservation.
2. Analysis of Health, Environmental, Economic, Social and Energy
Effects
EPA's regulations require that a ``satisfactory description and
analysis of the health, environmental, economic, social and energy
effects of the proposed redesignation'' must be available for public
inspection 30 days prior to the public hearing held by the Tribe. See
40 CFR 52.21(g)(2)(iii). (The public hearing held by the Tribe is
separate from the one conducted by EPA.)
EPA did not receive public comments that the Tribe failed to follow
proper procedures by failing to conduct a public hearing, by failing to
have the analysis available prior to the hearing, by failing to provide
timely notice of the hearing, or by failing to consult with the State
prior to proposing the redesignation. See 1977 CAAA Legislative
History, vol. 3 at 373 (colloquy between Senators Garn and Muskie,
during the Senate's consideration of the Conference report, about the
types of procedural error that might trigger a disapproval). EPA,
however, has received comments alleging that the Tribe's analysis of
health, environmental, economic, social and energy effects was
inadequate.
A threshold question is the level of scrutiny EPA should apply to
the Tribe's analysis in the face of claims that it is inadequate. As
previously discussed, section 164(b)(2) of the CAA and the implementing
regulations at 40 CFR 52.21(g)(5) provide that EPA may disapprove a
redesignation request only if it finds that the request does not meet
the procedural requirements. EPA believes that the availability of a
satisfactory effects analysis is central to meaningful notice and
public hearing and therefore a relevant procedural consideration. At
the same time, there is considerable discretion involved in determining
what is ``satisfactory.''
The specific use of the word ``satisfactory'' in the statute and
implementing regulations suggests a relatively low threshold. Congress,
by contrast, did not dictate that the analysis be comprehensive or
exhaustive. Further, the statutory language does not assign any
specific weight to the consideration of health, environmental,
economic, social or energy effects, or suggest that one consideration
should be given priority over another. The commenters objecting to the
Tribe's analysis appeared to assume that the Tribe had to justify its
redesignation. These commenters suggested that potential adverse
effects, particularly possible economic impacts, should be disabling.
These comments are discussed further below. In any event, EPA's
implementing regulations do not elaborate what constitutes a
``satisfactory'' description and analysis, nor do the regulations
specify to what extent this discussion should focus on the lands being
proposed for redesignation or surrounding areas.
The legislative and regulatory history generally indicate that
EPA's review of the analysis should be deferential. The legislative
history accompanying the 1977 amendments, described previously,
provides that Congress intended to eliminate EPA's authority to
override a redesignation on the grounds that energy, environment and
other factors were improperly weighed. See H.R. Rep. No. 294 at 7-8.
The resulting 1977 amendments supplanted EPA's administrative scheme
with provisions that limited EPA to a procedural review. See section
164(b)(2). In developing subsequent regulations, EPA indicated that EPA
would no longer be able to disapprove a redesignation based on its
finding that the State or Tribal decision was arbitrary or capricious.
See 42 FR at 57480.
EPA's decision to approve a redesignation by the Northern Cheyenne
Tribe was upheld under the pre-existing regulatory regime that
expressly provided for an analysis that included consideration of
growth anticipated, regional impacts, and social, environmental and
economic effects as well as stricter EPA scrutiny of the analysis. The
petitioners claimed that the Tribe's analysis was inadequate in several
respects. The reviewing court affirmed EPA's approval, rejecting the
claim that the Tribe was required to meet exacting analysis
requirements and holding that the Tribe had considered the factors
identified in EPA's regulations. Nance v. EPA, 645 F.2d at 712. The
court further reasoned that the Tribe's decision was bolstered by the
policy for maintaining clean air embodied in the CAA:
[T]he Clean Air Act contains a strong presumption in favor of
the maintenance of clean air, and the nature of a decision which
simply requires that the air quality be maintained at a certain
level prevents any exact prediction of its consequences. The Tribe
has considered the factors enumerated in EPA regulations, and its
choice in favor of the certainty of clean air is a choice
[[Page 56465]]
supported by the preferences embodied in the Clean Air Act.
Nance v. EPA, 645 F.2d at 712.
Accordingly, EPA generally has a limited role in reviewing the
Class I redesignation requests. The emphasis is on assuring that there
are no procedural defects. At the same time, EPA must refrain from
substituting its judgment for that of the state or tribe requesting the
redesignation. Thus, EPA must balance reviewing the Tribe's analysis to
ensure that relevant considerations were examined without
inappropriately ``second-guessing'' the Tribe's judgment.
EPA finds the Yavapai-Apache Tribe's analysis of the required
factors to be satisfactory. The Tribe's submittal describes and
analyzes the environmental, health, economic, social and energy effects
of the proposed redesignation, including present conditions, the
effects of redesignating to Class I and the effects of remaining a
Class II area. The submittal describes the Tribe's reasons for
proposing the redesignation as well as alternatives to the
redesignation and the potential impacts of the redesignation. See
generally Yavapai-Apache Tribe Air Quality Redesignation Plan, Sept.
1993.
The Town of Clarkdale commented that the Tribe failed to provide an
accurate assessment and description of the health, environmental,
economic, social and energy effects of the proposed redesignation on
off-reservation areas including particularly Clarkdale. The Town of
Clarkdale commented that it would be seriously and adversely affected
by the redesignation of a reservation parcel near the Town. Another
commenter asserted that the Tribe's analysis is incomplete and
inadequate because the requirement to perform a description and
analysis ``implies that the Tribe must weigh all relevant
considerations and then justify its request.'' The commenter stated
that the analysis must include adverse economic impacts on the
surrounding areas and activities. The commenter stated that the Tribe
may not take action ``that will inflict economic harm on off-
Reservation landowners, communities, and citizens, just because the
Tribe believes that the action will benefit the Tribe.'' The commenter
was concerned about increased regulation, increased costs to industry
and negative economic impacts on future mining activities outside the
reservation.
EPA disagrees that the Tribe must justify its redesignation request
in the manner suggested. A description and analysis of factors does not
dictate calculating and demonstrating that certain factors outweigh
others. Moreover, the fact that no weight or priority is assigned to
any particular consideration, taken together with the broad
redesignation discretion conferred on States and Tribes, indicates that
the Tribe does not have to justify or overcome a balancing test in its
redesignation request or show that a proposed redesignation will have
no impact on the surrounding community. The Tribe's responsibility is
to perform a ``satisfactory discussion and analysis'' of health,
environmental, economic, social and energy effects.
The Tribe's request contained an analysis of health, environmental,
economic, social and energy effects, including an examination of
effects on conditions within the reservation. As noted, EPA's
regulations do not prescribe whether or to what extent impacts outside
the area being requested for redesignation must be examined.
Nevertheless, the Tribe's submittal addressed impacts to housing,
roads, public services, and general impacts to tourism and jobs in the
surrounding areas, as well as a more detailed discussion of the impacts
to the reservation lands. The Tribe's description of potential effects
includes a discussion of the jobs related to tourism in comparison with
those related to industrial expansion, and the potential effects on
certain types of facilities located outside the Reservation boundaries.
The Tribe noted that some industries may incur the cost of additional
pollution controls to reduce impacts on the Class I area. The Tribe's
submittal also identified the presence of mineral resources off
reservation.
The Tribe's request to redesignate its reservation as Class I would
limit the amount of future air quality deterioration within the
reservation's boundaries. While the Tribe described and analyzed
relevant effects, specific prospective impacts are speculative and
would depend on the nature of future activities and their particular
ambient air quality impacts. It is difficult to assess such impacts
because ``the nature of a decision which simply requires that the air
quality be maintained at a certain level prevents any exact prediction
of its consequences.'' Nance v. EPA, 645 F.2d at 712.
3. Concern About Potential Impacts
Much of the concern about the potential off-reservation impacts
stems from misimpressions about the scope of the PSD program and the
protection of a non-Federal Class I area under the program. To
facilitate public understanding, EPA has addressed the concerns about
off-reservation impacts in the ensuing discussion.
a. Concern About Increased Regulation. Some commenters were under
the misimpression that a Class I redesignation would place the
residents of the Verde Valley ``under the strictest air control
measures of the Federal law.'' These commenters expressed concerns that
redesignation would activate restrictions on wood burning and any form
of earth movement in order to curtail dust and smoke, as well as
requiring vehicle smog inspections.
The residents of the Verde Valley will not be brought under the
strictest air control measures of Federal law as a result of a Class I
redesignation. As discussed in the proposal (59 FR 18346, April 18,
1994) and at EPA's presentation during the public hearing, the Verde
Valley and the Reservation are currently subject to the PSD program. As
noted, the PSD program applies to the following areas: (1)
``attainment'' areas that meet the NAAQS and (2) ``unclassifiable''
areas that cannot be classified as meeting or not meeting the NAAQS.
The Class I designation does not change which sources on or off the
reservation are subject to PSD. In all instances, only ``major''
stationary sources in PSD areas are subject to the PSD program. See,
e.g., 40 CFR 52.21(b)(1)(i). Major stationary sources are relatively
large industrial sources. The PSD provisions do not apply to mobile
sources, such as cars. Major stationary sources are sources that emit,
or have the potential to emit, over 250 tons per year (tpy) of a
regulated air pollutant, or 100 tpy if the source is one of the 28
source categories listed in 40 CFR 52.21(b)(1). Iron and steel mills
are an example of a listed source category that would be subject to PSD
if the facility has the potential to emit more than 100 tpy of a
regulated air pollutant. Particulates from unpaved roads could be
affected by the redesignation only insofar as they occur at a major
stationary source. Redesignation will not limit the home use of wood-
burning stoves, nor will it create restrictions on controlled forest
burning, as commenters suggested.
Further, PSD applies prospectively to proposed new major stationary
sources or to proposed major modifications of existing major stationary
sources. Very generally, major modifications are changes at an existing
major stationary source that result in a significant net increase of
regulated air pollutants. See 52.21(b)(2).
The central change resulting from the Class I redesignation
approved today is that it allows for less air quality deterioration on
the reservation than would have been allowed under its
[[Page 56466]]
Class II designation. The area around the reservation will continue to
maintain its Class II designation. EPA's PSD regulations establish the
incremental amount of air quality deterioration that is allowed for
Class I, II and III areas for particulate matter, sulfur dioxide and
nitrogen dioxide. See 40 CFR 52.21(c). In addition, a new major
stationary source or major modification which would construct within 10
km of a Class I area is subject to review under the PSD regulations if
emissions from the source would have an impact on the Class I area
equal to or greater than the 1 g/m3 significance level.
See 40 CFR 52.21(b)(2), 40 CFR 52.21(b)(23), and 40 CFR 52.21(i).
There is another program under separate provisions of the Clean Air
Act that imposes more stringent requirements in nonattainment areas, or
so called ``dirty air'' areas, in which air quality does not meet the
NAAQS. Under the nonattainment area requirements, states may need to
develop more stringent or broader requirements; these may affect
smaller stationary sources than would be regulated under the PSD
program, or in some instances necessitate vehicle inspection and
maintenance (smog-check) programs. Such a program would not go into
effect in the Verde Valley as a result of the redesignation. In fact,
one of the primary objectives of the PSD program is to prevent air
quality in attainment areas from deteriorating such that they fail to
meet the NAAQS, become ``nonattainment'' and necessitate more stringent
air pollution control measures.
Commenters also expressed concern that the redesignation would
place additional burdens on local regulatory agencies, as well as the
Arizona Department of Environmental Quality (ADEQ) to apply the Class I
increments to off-reservation sources. As the PSD permitting authority
for the lands outside the reservation in the Verde Valley, ADEQ would
be the only agency affected by the redesignation. Air quality modeling
to assess potential impacts on PSD increments is currently required for
Class II areas, and performed by a PSD permit applicant. In certain
circumstances, a proposed source may now also have to assess its impact
on the Class I increment in effect on the Reservation.
Any additional administrative resources which would be required as
a result of the Class I designation would not be substantial. ADEQ must
currently review a permit applicant's analysis of the amount of
increment that is consumed (if any) when a major source or major
modification is constructed in a PSD Class II area near any existing
Federal Class I area in Arizona. In the Verde Valley, for example, a
major source locating near the Sycamore Canyon Wilderness Area--a
Federal Class I area--would already be required to perform a Class I
increment analysis. The redesignation of the Yavapai-Apache Reservation
may increase the likelihood that a source must perform an increment
analysis for nearby Class I areas. While the total number of such Class
I analyses may increase, the Class I analysis is only one component of
an analysis which sources are already required to submit. The
responsibility to review the adequacy of any Class I increment analyses
resulting from the redesignation does not pose substantial additional
burdens for ADEQ in the review of PSD permit applications.
b. Concern About Increased Costs to Industry. Some commenters
expressed concern that the redesignation would significantly increase
the cost of complying with the PSD requirements.
EPA does not expect significant additional delay or cost for
companies attempting to comply with the Class I requirements. As noted,
the only types of industrial development affected by the Class I
designation would be major stationary sources of air pollution. The
permit applicant for a major stationary source in the Verde Valley
subject to PSD is currently required to perform a modeling analysis to
ensure that the Class II increments are protected. The applicant would
therefore have to gather the necessary data, and conduct studies on air
quality for the Class II analysis. The Class I designation may simply
require in certain circumstances that additional receptor points be
added to the model in order to simulate the effect of potential
emissions on the Class I area to ensure that the Class I increments are
protected. The cost of this additional component of an increments
analysis is not expected to be substantial.
Further, every major stationary source proposing to locate in a PSD
area, irrespective of the area's classification, must employ best
available control technology (BACT). See sections 165(a)(4) and 169(3)
of the CAA. Thus, every major source locating in a Class II area is
required to utilize state-of-the-art air pollution controls and
proximity to a Class I area generally would not affect the level of
control required. Thus, as a general rule, a source would not incur
additional control costs due to the redesignation. However, it is
possible that in some instances impacts on a Class I area would require
further decreases in emissions. A source could choose to achieve such
emission reductions in a number of ways, including restrictions on
hours of operation or throughput, additional emission controls or
obtaining emission reductions from other sources in the area. In such a
case a source would likely incur additional costs.
c. Concern About Impacts on Development. Some commenters expressed
concern that the redesignation would hinder all future economic
development in the Verde Valley. Others stated that it would place a
significant economic and regulatory burden on future economic
development in general, and on the development of hardrock mining
resources in particular.
The commenters cited increased costs and increased regulatory
burdens as the bases for the alleged impacts on development. As
discussed above, EPA believes that significant increases in cost will
be rare and generally unlikely to affect development in the area. As
noted, the redesignation does not affect which sources will be subject
to PSD. In all instances, ``major stationary sources'' in PSD areas are
subject to PSD. The Verde Valley area outside the reservation is a PSD
area and its PSD classification is unaffected by EPA's approval of the
Class I designation for the Tribe.
There are many Class I areas located adjacent to communities that
are Class II areas. For example, the Saguaro National Park, a Federal
Class I area, is adjacent to the eastern and western boundaries of
Tucson, Arizona. Tucson has a population size and economic activity
level that far exceeds that presently found in the Verde Valley.
EPA performed a modeling analysis to assess the potential impact of
some ``typical'' major sources proposing to locate near the Yavapai-
Apache Reservation, to facilitate the public's understanding about the
implications of the redesignation. This analysis suggests that while
the Class I redesignation will protect existing air quality on the
Reservation by limiting the amount of deterioration allowed, major
stationary sources with well-controlled emissions locating near the
Reservation should not exceed the Class I increment. More detailed
information about EPA's analysis is available for public review in the
docket listed at the beginning of this document.
As noted, commenters expressed specific concerns about the effect
of the redesignation on development of mining resources in the area,
noting that ore bodies cannot be relocated. One commenter argued that
any conventional mining operation requiring crushing and concentration
[[Page 56467]]
would fall well within the category of a new major stationary source.
The discussion above regarding economic and regulatory effects of
the redesignation in general also applies to mining operations. In
addition, whether proposed mining activity would even be subject to PSD
depends on the quantity and type of expected emissions. As noted, to be
subject to PSD a facility must have the potential to emit more than 250
tpy of a regulated air pollutant, or more than 100 tpy if the facility
is included in one of the 28 listed source categories. Mining
operations are not included in the list of 28 source categories, and
therefore the 250 tpy threshold applies. See 40 CFR 52.21(b)(1)(i). In
addition, for many types of mining operations, fugitive emissions
(emissions which could not reasonably pass through a stack, chimney,
vent or other functionally equivalent opening) make up a majority of
pollutants emitted. See 40 CFR 52.21(b)(20). Fugitive emissions, such
as dust, are counted towards the 250 tpy threshold for determining
whether PSD applies only for specified source categories, which do not
include most mining activities. See 40 CFR 52.21(b)(1)(c)(iii). Thus,
the exclusion of fugitive emissions and the higher pollutant threshold
may exclude mining activity from PSD review.
4. Disperse Reservation Lands and Character of Reservation Lands.
Some commenters stated that they were opposed to the redesignation
because the reservation is comprised of five distinct land parcels. The
commenters were concerned about the small size (i.e., 635 acres) and
dispersed nature of the reservation lands and the impact on effective
air quality management. As noted, EPA may disapprove a redesignation
only if the Tribe did not follow the applicable procedures in adopting
its redesignation. Because these comments do not relate to any alleged
procedural transgression, they are not a basis for disapproval in this
action.
However, section 164(e) calls for EPA to consider ``the extent to
which the lands involved are of sufficient size to allow effective air
quality management'' in resolving intergovernmental disputes about
redesignations. Thus, EPA has fully assessed this consideration in
addressing the State of Arizona's objection to the Tribe's Class I
redesignation. As noted, EPA's resolution of the intergovernmental
dispute is addressed in another notice in today's Federal Register and
the reader is referred to that notice.3
---------------------------------------------------------------------------
\3\ Responses to these comments are also contained in the TSD
for this rulemaking action, available in the public docket
identified at the beginning of this notice.
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Another commenter stated that the Class I redesignation is
inappropriate because Class I status is intended for the protection of
truly unique areas of national or regional significance because of
their natural, scenic, recreational, or historic values, and that the
Yavapai-Apache Reservation no more reflects any of these
characteristics than any neighborhood in the Verde Valley or the
country.
Congress made specified Federal lands, including certain national
parks and wilderness areas, mandatory Class I areas that may not be
redesignated. See section 162(a) of the CAA. This is consistent with
one of the purposes of the PSD program to preserve, protect, and
enhance the air quality in national parks, national wilderness areas,
national monuments, national seashores, and other areas of special
national or regional natural, recreational, scenic or historic value.
See section 160(2) of the CAA.
However, Congress did not restrict redesignation of additional
Class I areas by States and Tribes to lands deemed meritorious by the
Federal government. Rather, Congress gave States and Tribes broad
latitude to redesignate additional areas within their jurisdiction as
Class I. Congress generally limited EPA's authority to disapprove the
proposed redesignation of ``any'' area to circumstances where the
redesignation does not meet procedural requirements. See section
164(b)(2) of the CAA
There may be a variety of reasons for a State or Tribe to propose
redesignation of an area as Class I. One purpose of the PSD program is
to protect health and welfare from actual or potential adverse effects,
notwithstanding attainment of the national ambient air quality
standards. See section 160(1) of the CAA.
Another purpose of the PSD program is to assure that economic
growth will occur in a manner consistent with the preservation of
existing clean air resources. See section 160(3) of the CAA.
The Tribe's redesignation request provides as follows:
The Tribe is not seeking to change its air quality status to
prevent development on or around the reservation * * *. The Tribe is
against increased air pollution from industrial activity that could
cause serious health problems for the people living on or near the
Reservation * * *.
People are concerned about the increase in pollution under Class
II because of its anticipated effects on their most vulnerable age
groups: the very young and the elderly people on the Reservation. *
* *
The uncertainty that surrounds these absolute [NAAQS] leads the
Tribe to seek additional protection for the People and their finite
resources through the maintenance of the lowest levels of pollution
currently allowable: a Class I air quality designation.
See Yavapai-Apache Tribe Air Quality Redesignation Plan, Sept. 1993 at
ps. 27, 30 and 40. The Tribe's request also examines the natural
resource and cultural benefits of the proposed redesignation as well as
the unique nearby natural resources.
In the final analysis, it is generally inappropriate for EPA to
substitute its judgment for that of the Tribe's in these circumstances.
As discussed, Congress generally placed only procedural restrictions on
a Tribe's redesignation of non-Federal lands as Class I areas. The
legislative history indicates that limited Federal review was a
deliberate congressional decision.
5. Applicable Implementation Plan.
Some commenters stated that a redesignation cannot be approved
under section 164 of the CAA until there is an applicable state
implementation plan for the reservation. These commenters do not
believe that such a plan exists for this area, and therefore the
Tribe's request cannot be approved. The commenters reason that the
State does not have jurisdiction over the reservation, therefore no
applicable State implementation plan exists on the reservation and the
absence of an applicable State implementation plan precludes approval
of any Tribal redesignation.
Section 164 of the CAA makes no reference to an ``applicable state
implementation plan.'' Section 164(e), the dispute resolution
provisions, refers only to the ``applicable plan,'' providing that
EPA's decision resolving the dispute shall become part of the
applicable plan and shall be enforceable as part of such plan. Section
302(q) of the CAA in turn defines applicable implementation plan to
include a plan approved under section 110 of the CAA, a plan Federally-
promulgated under section 110(c) of the CAA or a plan approved or
promulgated under section 301(d) of the CAA. Thus, a redesignation
could be part of a state implementation plan (SIP), a Federal
implementation plan (FIP), or eventually, a tribal implementation plan
in accordance with sections 110(o) and 301(d) of the CAA. See 59 FR
43956.
The PSD regulations, however, provide that redesignations may be
[[Page 56468]]
proposed by states or tribes, ``subject to approval by the
Administrator as a revision to the applicable State implementation
plan.'' See 40 CFR 52.21(g)(1). At the time this language was
promulgated, the Agency had not clearly focused on the complex issues
of tribal sovereignty as it relates to States. Compare 59 FR 43956.
The PSD rules at 40 CFR part 52 establish a Federal PSD program, or
Federal implementation plan, where there would otherwise be gaps in
programmatic coverage.4 The Federal implementing rules expressly
apply to Indian reservations. See 40 CFR 52.21(a) (``the provisions [of
this section] shall also be applicable to all * * * Indian
Reservations). The Federal implementing regulations also expressly
provide for redesignations by Indian Tribes. See 40 CFR 52.21(g)(4).
---------------------------------------------------------------------------
\4\ See section 110(c)(1) of the CAA; see also Phillips
Petroleum Co. v. EPA, 803 F.2d 545, 555-56 (10th Cir. 1986)
(affirming EPA's authority to directly implement Safe Drinking Water
Act Underground Injection Control program on Indian lands in
Oklahoma where concluding otherwise would contradict the meaning and
purpose of the Act by creating ``a vacuum of authority over
underground injections on Indian lands, leaving vast areas of the
nation devoid of protection from groundwater'').
---------------------------------------------------------------------------
Based on the language in section 164(c) of the CAA and 40 CFR
52.21(g)(4) of the regulations expressly authorizing Tribes to
redesignate lands within reservation boundaries, it could not have been
EPA's intent at the time it promulgated the language in 40 CFR
52.21(g)(1) to frustrate the ability of Tribes to redesignate their
lands, and render meaningless the statutory and regulatory Tribal
redesignation authority, by requiring that there be an applicable State
implementation plan. Further, requiring that a State implementation
plan apply on a reservation before EPA would approve a Tribal
redesignation would be inappropriately treating Tribes as subdivisions
of States instead of relating to Tribes on a ``government-to-
government'' basis as called for by Federal policy. See part III.B.6,
below.
Thus, EPA interprets the regulatory provision to have the same
meaning as the statutory provision on which it is based, and to require
that redesignations become part of the applicable implementation plan.
Accordingly, for States, the applicable plan is the State
implementation plan as specifically recognized in the regulations.
Because Indian Tribes do not yet have authority to administer Tribal
implementation plans, the Federal PSD rules issued at 40 CFR 52.21
establish, pursuant to section 110(c)(1) of the CAA, the Federal
implementation plan as the applicable plan for the Tribe. See section
302(q) of the CAA. Thus, the redesignation approved today will become
part of the Federal implementation plan for the reservation.
6. Additional Public Comments.
One commenter expressed concern that the redesignation could be
detrimental to the economic well-being of the community. The commenter
also asserted that it appears to be ``both unnecessary and possibly
immoral'' to allow ``an extremely small minority of the population to
impose a significantly higher level of bureaucratic regulation.'' The
commenter encouraged EPA to suggest to the Tribe that it could pursue
more ``meaningful and productive opportunities.''
In the preceding discussion, EPA has attempted to address concerns,
and misimpressions, about potential economic impacts. Also as addressed
previously, the PSD program gives States and Federally recognized
Indian Tribes broad authority to redesignate lands within their
jurisdictional boundaries. That authority is not limited by the size of
population the requesting governmental entity represents or its
population relative to the surrounding jurisdictions.
EPA is also guided by Federal and Agency Tribal policy in making
decisions affecting Tribes. Washington Department of Ecology v. EPA,
752 F.2d 1465, 1471 & n. 5 (9th Cir. 1985). As outlined below, these
policies direct EPA to treat Tribes as sovereign governments.
On January 24, 1983, the President issued a Federal Indian Policy
stressing two related themes: (1) That the Federal government will
pursue the principle of Indian ``self-government'' and (2) that it will
work directly with Tribal governments on a ``government-to-government''
basis. An April 29, 1994 Presidential Memorandum reiterated that the
rights of sovereign Tribal governments must be fully respected. 59 FR
22951 (May 4, 1994).
EPA's Tribal policies commit to certain principles, including the
following:
EPA recognizes Tribal Governments as sovereign entities with
primary authority and responsibility for the reservation populace.
Accordingly, EPA will work directly with Tribal Governments as the
independent authority for reservation affairs, and not as the
political subdivisions of States or other governmental units.
* * * * *
In keeping with the principal of Indian self-government, the
Agency will view Tribal Governments as the appropriate non-Federal
parties for making decisions and carrying out program
responsibilities affecting Indian reservations, their environments,
and the health and welfare of the reservation populace. Just as
EPA's deliberations and activities have traditionally involved
interests and/or participation of State Governments, EPA will look
directly to Tribal Governments to play this lead role for matters
affecting reservation environments.
See November 8, 1984 ``EPA Policy for the Administration of
Environmental Programs on Indian Reservations''; Policy Reaffirmed by
Administrator Carol M. Browner in a Memorandum issued on March 14,
1994.
Congress further enhanced Tribal sovereignty under the CAA in the
1990 amendments. The 1990 amendments added sections 110(o) and 301(d)
to the CAA, which provide for administration of specified CAA programs
in the same manner as States. These provisions further evidence strong
Congressional commitment to tribal sovereignty and the desire to put
tribes on an equal footing with states with regard to managing air
quality resources. See 59 FR 43956.
The United States also has a unique fiduciary relationship with
Tribes, and EPA must consider Tribal interests in its actions. Nance v.
EPA, 645 F.2d at 710.
It would be inappropriate, under Federal law and policy, for EPA to
disapprove the Tribe's request to seek additional protection of the
reservation environment for the reasons suggested by the commenter.
EPA also received a comment from the attorney for the Town of
Clarkdale objecting ``to the lack of procedural due process in the
conduct of the Public Hearing held by EPA on * * * June 22, 1994.'' The
commenter alleged that the EPA hearing officer was unfair and impartial
because the Hearing Officer asked the attorney to conclude his comments
when a five-minute time limit had been exceeded, some proponents of the
project who spoke exceeded the five-minute time limit without
interruption from the hearing officer, and the hearing officer failed
to control applause and verbal expressions by members of the audience
supporting the request which had the effect of a ``chilling process''
on any person in attendance intending to make public comment in
opposition. The commenter therefore alleged that the entire EPA review
process is tainted.
An opportunity for a public hearing is expressly provided for in
conjunction with EPA disapproval of a redesignation request. Section
164(b)(2) of the CAA provides that EPA may disapprove an area
redesignation request only if it finds ``after notice and opportunity
for public hearing,'' that the redesignation
[[Page 56469]]
does not meet the applicable procedural requirements. EPA's
implementing regulations similarly provide that EPA shall disapprove,
within 90 days of submission, a redesignation request only if it finds
``after notice and opportunity for public hearing'' that the
redesignation does not meet the applicable procedural requirements. See
40 CFR 52.21(g)(5).
On April 18, 1994, EPA published a notice of proposed rulemaking in
the Federal Register proposing to approve the Tribe's Class I
redesignation request based on EPA's preliminary determination that it
met the applicable procedural requirements, and announced a 30-day
public comment period. See 59 FR 18346. EPA subsequently held the June
22, 1994 public hearing in question to be responsive to a request for a
public hearing from the Town of Clarkdale attorney. In the announcement
of the public hearing, EPA indicated that it would allow until July 6,
1994 for the submittal of written comments following the public
hearing.
To facilitate the public's understanding of the issues, EPA began
the public hearing with an informational discussion of the Class I
redesignation process and an overview of the PSD permit program.
Subsequently, a panel of EPA officials, including a presiding hearing
officer, heard oral presentations from members of the public.
In her introductory remarks the presiding officer made the
following statement:
Please make your oral comments brief so that everyone has an
opportunity to speak. To assist in this effort, please limit your
comments to five minutes. If you have lengthier comments or comments
that contain a significant amount of technical detail, I would ask
that you submit them in writing before the end of the comment
period. If you brought a written copy of your remarks with you
today, you may hand it to the reporter after your testimony for
inclusion in the record of the hearing.
See Hearing Transcript at p. 6.
The Town of Clarkdale attorney was the first speaker at the public
hearing. After he spoke for approximately 10 minutes, the presiding
officer asked him to conclude his comments in order to ensure that
everyone would have time to speak. After providing those who expressed
an interest in making an oral presentation with an opportunity to
speak, EPA provided time for any additional comment including
supplementary statements by those who had previously spoken.
EPA has reviewed the transcript and a videotape of the public
hearing. The Town of Clarkdale attorney had a fair and reasonable
opportunity to express his views at the public hearing during his
statements at the outset of the hearing and again at the end of the
hearing when EPA provided an opportunity for additional statements.
Everyone present was afforded an equal opportunity to speak. While some
members of the audience did applause and comment in response to the
statements of others, their conduct did not create an intimidating or
``chilling'' atmosphere.
Further, EPA provided additional opportunities for submission of
views to the Agency. As noted, in its announcement of the public
hearing, EPA stated that it would consider post-hearing written
comments submitted by July 6, 1994. Following the public hearing, the
Town of Clarkdale requested an extension of the public comment period
``[t]o allow additional time for the public to respond to information
presented by EPA and the public comment at the Public Hearing'' and
``[t]o allow for public comment not made at the Public Hearing of June
22, 1994, by reason of curtailment of opposing viewpoints.'' On July
20, 1994, in response to the Town of Clarkdale's request, EPA published
a Federal Register document announcing an extension of the public
comment period, providing the public until August 22, 1994 to submit
written comments. See 59 FR 37018. The Town of Clarkdale submitted
public comments dated August 22, 1994, in addition to several other
written communications with EPA both preceding and following the EPA
public hearing.
EPA has satisfied the procedures required by law, and arguably
more, in reviewing the Tribe's PSD redesignation request. EPA has
provided ample opportunity for public participation and has fully
considered the resulting public comments in taking today's final
action. EPA has acted well within its lawful discretion. See Vermont
Yankee Nuclear Power Co. v. NRDC, 435 U.S. 519 (1978).
IV. Administrative Review
A. Executive Order 12866
The Office of Management and Budget has exempted this rulemaking
action from centralized regulatory review pursuant to section 6 of
Executive Order 12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Section 600 et seq.,
EPA must prepare a regulatory flexibility analysis describing the
impact of a final rule on small entities. See 5 U.S.C. sections 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant economic 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. This final rulemaking action to approve the
Tribe's PSD redesignation request does not impose new requirements on
small entities and may only potentially have an impact on major
stationary sources, as defined by 40 CFR 52.21. Therefore, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 205 allows EPA to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if EPA publishes with the final rule an explanation why
that alternative was not adopted.
EPA has determined that this final rulemaking action to approve the
Tribe's PSD redesignation request does not contain Federal mandates
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. Thus, this action is not subject to the requirements
of sections 202 and 205 of the UMRA.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule
[[Page 56470]]
and other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: October 2, 1996.
Felicia Marcus,
Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart D--Arizona
2. Subpart D is amended by adding Sec. 52.150 to read as follows:
Sec. 150 Yavapai-Apache Reservation.
(a) The provisions for prevention of significant deterioration of
air quality at 40 CFR 52.21 are applicable to the Yavapai-Apache
Reservation, pursuant to Sec. 52.21(a).
(b) In accordance with section 164 of the Clean Air Act and the
provisions of 40 CFR 52.21(g), the Yavapai-Apache Indian Reservation is
designated as a Class I area for the purposes of preventing significant
deterioration of air quality.
[FR Doc. 96-27849 Filed 10-31-96; 8:45 am]
BILLING CODE 6560-50-P
