8/
19/
04
1
RESPONSE
TO
COMMENTS
Comments
on
the
March
15,
2002
Proposal
for
Federal
Implementation
Plans
under
the
Clean
Air
Act
for
Indian
Reservations
in
Idaho,
Oregon,
and
Washington.

Table
of
Contents
Page
A.
General
Comments
2
B.
Resources
Available
to
Implement
the
Rules
9
C.
Economic
Effects
11
D.
Public
Participation
13
E.
EPA
Exceeded
its
Authority
under
the
Clean
Air
Act
15
F.
EPA
Assuming
State
Authority
18
G.
Tribe
Control
Over
Reservation
Lands
and
Non­
Indians
22
H.
Comments
that
Apply
to
More
Than
One
Rule
23
I.
Section
49.122
Partial
Delegation
of
Administrative
Authority
to
a
Tribe
26
J.
Section
49.123
General
Provisions
30
K.
Section
49.124
Rule
for
Limiting
Visible
Emissions
35
L.
Section
49.125
Rule
for
Limiting
the
Emissions
of
Particulate
Matter
36
M.
Section
49.126
Rule
for
Limiting
Fugitive
Particulate
Matter
Emissions
38
N.
Section
49.127
Rule
for
Woodwaste
Burners
40
O.
Section
49.128
Rule
for
Limiting
Particulate
Matter
Emissions
from
Wood
Products
Industry
Sources
41
P.
Section
49.130
Rule
for
Limiting
Sulfur
in
Fuels
41
Q.
Section
49.131
General
Rule
for
Open
Burning
42
R.
Section
49.132
Rule
for
General
Open
Burning
Permits
48
S.
Section
49.133
Rule
for
Agricultural
Burning
Permits
50
T.
Section
49.134
Forestry
and
Silvicultural
Burning
Permits
50
U.
Section
49.135
Rule
for
Emissions
Detrimental
to
Human
Health
or
Welfare
51
V.
Section
49.136
Rule
for
Emissions
Detrimental
to
Persons,
Property,
Cultural
or
Traditional
Resources
53
W.
Section
49.137
Rule
for
Air
Pollution
Episodes
55
X.
Section
49.138
Rule
for
the
Registration
of
Air
Pollution
Sources
and
the
Reporting
of
Emissions
57
Y.
Section
49.139
Rule
for
Non­
Title
V
Operating
Permits
58
Z.
Section
49.11105
Classification
of
Regions
for
Episode
Plan
59
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2
A.
General
Comments
1.
Comment:
Several
citizens,
Tribes,
and
State
and
local
governments
expressed
general
support
for
the
rules.
Commenters
believed
these
rules
are
needed
to
protect
air
quality
on
reservations,
to
fill
the
regulatory
gap,
and
to
level
the
playing
field
between
sources
on
and
off
reservations.
Commenters
specifically
supported
the
flexibility
afforded
by
the
modular
approach
of
the
rules,
the
general
approach
used
by
the
Environmental
Protection
Agency
(
EPA)
to
develop
the
rules,
the
ability
for
Tribes
to
build
capacity
through
partnering
with
EPA
to
implement
the
rules,
and
the
consultation
process.

Commenters
commented
that
the
rules
focus
on
the
appropriate
sources
of
air
pollution
and
set
appropriate
levels
of
control.
One
commenter
voiced
support
for
using
different
versions
of
rules
on
the
same
subject,
e.
g.,
§
§
49.135
and
49.136
for
emissions
detrimental.

Response:
Comments
are
noted.

2.
Comment:
Several
commenters
wrote
in
support
of
Tribes
continuing
to
develop
Tribal
capacity
to
operate
their
own
Tribal
air
program
on
reservations.
However,
the
commenters
supported
having
Federal
rules
apply
on
reservations
until
Tribes
develop
their
own
Tribal
Implementation
Plans
(
TIPs).

Response:
EPA
fully
intends
to
continue
supporting
the
efforts
of
individual
Tribes
to
develop
the
capacity
to
manage
air
programs
within
the
exterior
boundaries
of
their
reservation,
including
the
development
of
TIPs.
EPA
believes
these
rules
will
support
Tribal
capacity
building
efforts
by
providing
a
mechanism
for
Tribes
to
actively
participate
in
rule
implementation
until
such
time
that
a
Tribal
program
is
developed
and
in
place
under
the
Federal
Clean
Air
Act
(
Act
or
CAA).

3.
Comment:
Some
commenters
believed,
and/
or
expressed
concern,
that
the
applicability
of
these
rules
would
extend
up
to
sixty
miles
beyond
reservations
borders
or
to
other
lands
outside
the
reservation
boundaries.
Another
commenter
thought
that
the
application
of
the
rule
should
be
expanded
beyond
the
reservation
boundaries.
A
couple
commenters
noted
that
the
rules
would
be
important
where
emissions
from
air
pollution
sources
sited
outside
of
reservations
cause
and
contribute
to
adverse
environmental
and
human
health
impacts
within
reservations.
One
commenter
thought
that
these
rules
would
automatically
apply
to
newly
established
reservations.

Response:
The
final
rules
established
today
apply
only
to
sources
located
within
the
exterior
boundaries
of
the
specific
Indian
reservations
listed
in
40
CFR
part
49,
subpart
M
and
do
not
apply
to
sources
located
outside
those
reservations.
These
rules
do
not
specifically
address
the
issue
of
off­
reservation
sources
that
impact
on­
reservation
resources.
Sources
located
outside
the
reservation
boundary
are
regulated
by
the
appropriate
State
or
local
agency,
unless
located
on
lands
considered
"
Indian
country."
EPA
has
already
approved
rules
for
these
agencies
in
previous
actions
to
make
them
Federally
enforceable.
The
rules
finalized
today
do
not
automatically
apply
to
new
lands
that
are
put
in
trust
or
newly
established
reservations.
For
new
lands
that
are
put
in
8/
19/
04
3
trust
or
for
newly
established
reservations,
EPA
and
the
Tribe
would
begin
consultation
to
discuss
the
need
for
rulemaking,
what
rules
would
be
necessary
or
appropriate,
and
the
timing
of
a
rulemaking.
For
those
rules
that
we
determine
are
necessary
or
appropriate,
EPA
would
then
propose
a
Federal
Implementation
Plan
(
FIP)
for
the
new
trust
land
or
reservation
and
would
solicit
input
during
a
public
comment
period.

4.
Comment:
A
couple
commenters
voiced
their
appreciation
for
the
recognition
by
EPA
of
the
primacy
of
Federal
and
Tribal
law
in
the
regulation
of
air
quality
on
reservations.
The
commenters
also
appreciated
EPA's
acknowledgment
that
the
CAA
constitutes
a
statutory
grant
of
jurisdictional
authority
to
Indian
Tribes
so
that
Tribes
may
develop
their
own
air
quality
programs
for
their
reservations,
for
submittal
to,
and
approval
by,
EPA
in
the
same
manner
as
State
programs.

Response:
Comments
are
noted.

5.
Comment:
One
commenter
suggested
a
partial
solution
to
the
air
pollution
problem
in
Yakima
County
would
be
for
EPA
to
grant
Yakima
County
about
$
200,000,000
to
pave
the
county
roads.

Response:
This
comment
is
outside
the
scope
of
this
rulemaking.

6.
Comment:
One
commenter
stated
that
the
rules
are
overly
broad
and
far
reaching
and
asked
EPA
to
consider
withdrawing
the
proposed
rules.

Response:
EPA
believes
these
rules
focus
on
the
main
sources
of
air
pollution
on
Indian
reservations
in
Idaho,
Oregon
and
Washington,
and
fill
a
regulatory
gap
by
establishing
a
set
of
Federally
enforceable
rules
that
are
similar
to
the
rules
currently
in
effect
in
adjoining
State
and
local
governments.
EPA
does
not
believe
the
rules
are
overly
broad,
nor
far
reaching,
but
rather
are
a
representative
"
average"
approach
that
are
appropriate
to
regulate
important
sources
of
air
pollution
on
Indian
reservations
in
the
Pacific
Northwest.

7.
Comment:
Some
commenters
were
concerned
that
some
provisions
of
the
proposed
rule
are
more
stringent
than
existing
CAA
or
State
provisions,
while
other
commenters
were
concerned
that
some
provisions
of
the
proposed
rule
are
less
stringent
than
State
provisions.
For
example,
commenters
wrote
that
the
proposed
rule
applies
more
stringent
requirements
to
bluegrass
and
wheat
farmers
in
Idaho,
Oregon,
and
Washington
than
to
those
in
other
parts
of
the
country.
Some
industry
commenters
stated
that
the
provisions
of
the
proposed
rule
should
not
be
more
stringent
than
those
promulgated
by
the
State
of
Idaho
Department
of
Environmental
Quality
(
IDEQ)
and
the
CAA
because
more
stringent
rules
would
force
air
emissions
sources
that
operate
on
reservations
in
Idaho
to
operate
at
a
competitive
disadvantage
to
similar
sources
not
located
on
the
reservations.
Two
air
agencies
commented
that
the
rules
should
be
as
consistent
as
possible
with
the
respective
State
in
which
each
reservation
lies.
One
State
air
agency
specifically
requested
that
the
rule
for
emergency
episodes
mirror,
or
be
at
least
as
stringent,
as
Idaho's
rules.
8/
19/
04
4
One
local
air
agency
further
commented
that
there
was
no
evidence
that
the
rules
proposed
for
reservations
in
Washington
State
are
equivalent
to
existing
rules
under
the
Revised
Code
of
Washington
and
the
Washington
Administrative
Code.
The
commenter
stated
that
the
rules
must
meet
the
requirements
of
Title
I
of
the
CAA,
specifically
that
the
rules
will
be
equivalent
within
common
airsheds.
Two
local
governments,
one
citizen
and
one
industry
association
commented
it
was
inequitable
for
EPA
to
impose
standards
that
provide
less
protection
to
reservation
residents
than
the
standards
that
apply
off­
reservation.
One
commenter
stated
that
it
was
unclear
how
EPA
determined
the
stringency
of
the
emission
limitations
and
that
EPA
is
subject
to
a
requirement
of
reasoned
decision­
making
in
setting
emission
limitations
in
FIPs
and
must
give
a
reasonable
explanation
of
the
need
for
the
level
of
control
selected.
The
commenter
further
stated,
that
EPA
should
only
promulgate
emission
limitations
and
controls
that
(
1)
are
consistent
with
the
statutory
scheme,
and
(
2)
are
at
levels
of
stringency
for
which
EPA
can
demonstrate
a
specific
basis,
consistent
with
the
statutory
scheme.

Response:
These
commenters
were
responding
to
EPA's
efforts
to
"
level
the
playing
field"
between
the
degree
of
regulatory
control
on
and
off
the
reservations.
Some
commenters
were
asking
that
the
Federal
Air
Rules
for
Indian
Reservations
in
Idaho,
Oregon,
and
Washington
(
FARR)
be
no
more
stringent
than
State,
local,
or
Federal
rules,
while
other
commenters
requested
that
the
rules
be
at
least
as
stringent
as
any
adjacent
rules.
EPA's
intention
is
to
promulgate
Federal
regulations
that
reflect
an
important
initial
step
to
fill
the
"
regulatory
gap"
on
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
However,
EPA
does
not
intend,
nor
does
it
expect,
these
gap­
filling
regulations
to
impose
significantly
different
regulatory
burdens
upon
industry
or
residents
within
reservations
than
those
imposed
by
the
rules
of
State
and
local
air
agencies
in
the
surrounding
areas.
This
approach
is
intended
to
formally
"
level
the
playing
field."
In
other
words,
the
intent
of
these
rules
is
to
provide
people
living
within
reservation
boundaries
with
air
quality
protection
similar
to
surrounding
areas,
and
to
require
that
emissions
from
sources
located
within
reservations
are
controlled
to
levels
similar
to
those
of
sources
located
outside
the
reservations.
EPA
believes
that
in
light
of
the
particular
air
quality
problems
generally
present
on
reservations
in
the
Pacific
Northwest
and
based
on
our
expertise
in
this
area,
it
is
appropriate
to
establish
each
of
the
air
quality
rules
for
each
reservation
that
are
promulgated
today.

EPA
has
analyzed
the
sources
of
air
pollution
on
Indian
reservations
in
Idaho,
Oregon,
and
Washington
and
found
these
rules
to
be
appropriate
for
such
areas.
These
gap­
filling
rules
are
generally
based
upon
the
aspects
of
State
and
local
rules
most
relevant
to
the
air
polluting
activities
on
reservations
in
the
Pacific
Northwest,
and
reflect
a
level
of
control
of
a
typical
air
quality
control
program.
As
a
general
matter,
these
regulations
are
not
as
restrictive
as
the
most
stringent
State
and
local
rules
for
the
same
class
of
sources
or
activities;
likewise,
they
are
not
as
lenient
as
the
least
stringent
of
the
State
and
local
rules.
EPA
has
used
its
best
professional
judgment
to
determine
limits
that
provide
protection
where
none
existed
yet
are
similar
enough
to
adjacent
rules
so
as
to
not
create
hardships
for
industry,
Tribes,
or
the
general
public.
In
some
areas
a
particular
rule
is
more
or
less
stringent
than
a
rule
in
areas
directly
adjacent
to
the
reservation,
but
on
the
whole,
we
believe
these
rules
are
roughly
equivalent
to
the
rules
in
surrounding
jurisdictions.
8/
19/
04
5
While
it
is
common
for
EPA
to
approve
SIPs
in
adjacent
and
shared
airsheds,
EPA
does
not
require
the
adjacent
jurisdictions
to
use
the
same
control
methods.
The
CAA
envisions
that
each
regulatory
authority
will
determine
the
best
mix
of
controls
and
regulations.
Title
I
of
the
Act
does
not
require
identical
regulations
in
adjacent
airsheds.
As
an
example,
the
Portland,
Oregon
and
Vancouver,
Washington
areas
have
different
rules.
Therefore,
EPA
disagrees
that
it
is
required
to
impose
controls
on
the
reservation
identical
to
those
in
the
areas
adjacent
to
the
reservation,
as
long
as
the
degree
of
control
applied
on
the
reservation
does
not
jeopardize
the
ability
of
adjacent
areas
to
achieve
or
maintain
attainment
of
the
National
Ambient
Air
Quality
Standards
(
NAAQS).

EPA's
final
rules
address
clearly
identified
air
pollution
concerns
of
the
Pacific
Northwest
Indian
reservations
based
on
information
gathered
in
a
number
of
ways,
including
review
of
State
and
local
air
agency
implementation
plans,
as
discussed
in
the
proposed
rules.
EPA
believes
that
it
is
appropriate
to
focus
initially
on
the
sources
in
Region
10
that
have
been
identified
as
ones
that
may
cause
or
contribute
to
prevalent
air
quality
problems
on
reservations
and
in
shared
airsheds
of
the
Pacific
Northwest.
Aside
from
existing
national
emissions
standards
and
Federal
requirements
described
elsewhere,
these
FIPs
are
the
first
building
blocks
under
the
CAA
to
address
such
emissions.

8.
Comment:
Some
commenters
questioned
the
basic
and
additional
rule
approach
in
the
proposed
rules.
One
commenter
noted
that
the
proposed
approach
does
not
ensure
comparable
rules
with
adjoining
jurisdictions.
One
State
agency
commented
that
the
proposed
rules
do
not
explain
why
some
programs
apply
on
some
reservations
but
not
on
others.
The
State
agency
wrote
that
EPA
needed
to
make
an
inventory
of
sources
to
"
ground­
truth"
the
assertions
by
Tribal
officials
that
certain
regulations
are
not
needed.
Specifically,
the
State
agency
wrote
that
the
Quinault
Reservation
has
problem
woodwaste
burners
yet
the
additional
woodwaste
burner
rule
does
not
apply
to
them.
Another
State
agency
requested
that
the
additional
rule
for
woodwaste
burners
apply
to
the
Fort
Hall
and
Coeur
d'Alene
Reservations
in
addition
to
the
Nez
Perce
Reservation.

A
State
agency
wrote
that
EPA
should
establish
burning
permit
requirements
on
all
Indian
reservations.
One
nonprofit
foundation
commented
on
the
serious
negative
health
effects
(
especially
for
the
elderly,
asthmatics
and
children)
from
bluegrass
field
burning
in
North
Idaho
and
especially
the
Coeur
d'Alene
reservation.
They
contend
the
increase
in
burning
has
resulted
from
the
lack
of
regulation
on
the
Coeur
d'Alene
reservation
compared
to
the
surrounding
jurisdictions
where
field
burning
is
restricted.
The
foundation
asserted
that
it
would
be
appropriate
to
promulgate
the
additional
agricultural
burning
permit
rule
for
the
Coeur
d'Alene
Reservation
to
provide
regulation
of
the
burning
on
the
Reservation.
One
State
agency
noted
that
the
rule
for
agricultural
burning
permits
does
not
apply
to
any
reservation
in
Washington
and
that
the
rule
should
apply
to
the
Spokane
and
Yakama
Reservations
at
a
minimum.
The
commenter
also
noted
that
the
rule
for
forestry
and
silvicultural
permits
does
not
apply
to
any
reservation
in
Washington
and
that
the
emissions
from
burning
forest
lands
needs
to
be
inventoried,
limited,
and
permitted.
One
Tribe
commented
that
the
criteria
used
for
application
of
the
additional
rules
was
8/
19/
04
6
appropriate
and
that
the
criteria
was
appropriately
applied.

Response:
As
EPA
wrote
in
the
proposed
rule,
most
of
the
rules
in
the
FIPs
constitute
a
"
base
program"
that
EPA
is
putting
in
place
in
all
reservations
in
Idaho,
Oregon,
and
Washington,
but
some
of
the
FIPs
have
additional
rules
where
specific
needs
exist
or
where
EPA
determined,
in
consultation
with
the
relevant
Tribe,
that
a
more
stringent
provision
is
appropriate.
As
an
initial
step,
EPA
is
promulgating
some
or
all
of
these
additional
rules
for
those
reservations
where,
in
consultation
with
the
affected
Tribe,
relevant
sources
have
been
identified
as
prevalent
and/
or
where
particular
Tribes
have
indicated
an
interest
in
the
additional
regulation.
EPA
considers
this
approach
an
appropriate
first
step
in
prioritizing
its
efforts
to
address
air
quality
concerns
consistent
with
CAA
responsibilities.
EPA
is
continuing
to
consult
with
Tribes
regarding
sources
of
air
pollution
and
air
regulatory
needs
on
their
reservations
and
may
propose
some
or
all
of
the
additional
rules,
or
may
propose
further
additional
rules,
for
reservations
as
needs
and
priorities
are
identified
and
where
EPA
determines,
in
consultation
with
the
relevant
Tribe,
that
a
more
stringent
provision
is
appropriate.
As
described
in
the
response
to
A.
7,
EPA
does
not
require
adjacent
jurisdictions
to
use
the
same
control
methods.

EPA
is
promulgating
the
additional
rule
for
woodwaste
burners
on
the
Nez
Perce
Reservation
and
the
Colville
Indian
Reservation
because
we
have
concluded,
in
consultation
with
the
Tribal
governments,
that
this
requirement
is
appropriate.
EPA
is
not
applying
the
woodwaste
burner
rule
on
other
reservations
because
we
have
not
yet
determined
that
it
is
either
necessary
or
appropriate
to
promulgate
the
rule
in
those
locations.
EPA
believes
that
it
is
appropriate
to
focus
initially
on
the
sources
in
Region
10
that
have
been
identified
as
ones
that
may
cause
or
contribute
to
prevalent
air
quality
problems
on
reservations
and
in
shared
airsheds
of
the
Pacific
Northwest.
As
EPA
wrote
when
proposing
these
rules,
the
implementation
plans
published
today
are
the
first
building
blocks
under
the
CAA
to
address
the
kinds
of
emissions
we
have
identified.
If
in
the
future,
EPA
becomes
aware
of
other
air
quality
concerns
for
these
reservations,
EPA
may
propose
other
requirements
that
are
deemed
necessary
or
appropriate.

EPA
is
promulgating
the
burn
permit
rules
for
the
Nez
Perce
Reservation
and
the
Umatilla
Indian
Reservation
because
we
have
concluded,
in
consultation
with
the
Tribal
governments,
that
these
requirements
are
appropriate.
EPA
is
not
applying
these
burn
permit
rules
on
other
reservations
because
we
have
not
yet
determined
that
it
is
necessary
or
appropriate
to
promulgate
these
rules
in
those
locations.
The
commenters
have
not
presented
evidence
that
such
action
is
needed
for
other
reservations.
EPA
believes
that
it
is
appropriate
to
focus
initially
on
the
sources
in
Region
10
that
have
been
identified
as
ones
that
may
cause
or
contribute
to
prevalent
air
quality
problems
on
reservations
and
in
shared
airsheds
of
the
Pacific
Northwest.
As
EPA
wrote
when
proposing
these
rules,
the
implementation
plans
published
today
are
the
first
building
blocks
under
the
CAA
to
address
the
kinds
of
emissions
we
have
identified.
If
in
the
future,
EPA
becomes
aware
of
other
air
quality
concerns
for
these
reservations,
EPA
may
propose
other
requirements
that
are
deemed
necessary
or
appropriate.
EPA's
experience
from
implementing
the
burn
permit
programs
on
the
Nez
Perce
and
Umatilla
Indian
Reservations
will
also
assist
EPA
in
determining
whether
burn
permit
programs
are
necessary
or
appropriate
on
other
reservations.
8/
19/
04
7
As
for
the
comment
that
emissions
from
burning
forest
lands
need
to
be
inventoried,
limited,
and
permitted
in
Washington,
we
recognize
that
forestry
activities
have
the
potential
to
be
an
area
of
concern.
Emissions
from
burning
are
inventoried
periodically
as
part
of
EPA's
National
Emission
Inventory
(
NEI).
We
do
not
have
sufficient
information
at
this
time,
however,
to
determine
that
it
is
necessary
or
appropriate
to
limit
or
permit
these
activities
on
all
reservations
in
Washington.
This
rulemaking
is
a
first
step
to
fill
the
regulatory
gap
on
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
As
we
have
noted
elsewhere,
in
the
future
we
may
promulgate
additional
rules
if
we
determine
that
additional
rules
are
necessary
or
appropriate.
As
discussed
above,
the
rule
for
forestry
and
silvicultural
permits
will
apply
on
the
Nez
Perce
Reservation
and
Umatilla
Indian
Reservation
because
we
have
concluded,
in
consultation
with
the
Tribal
governments,
that
this
requirement
is
appropriate.
EPA
is
not
applying
these
burn
permit
rules
on
other
reservations
because
we
have
not
yet
determined
that
it
is
necessary
or
appropriate
to
promulgate
these
rules
in
those
locations.

In
response
to
why
the
FIPs
do
not
include
an
agricultural
burning
permit
rule
for
the
Coeur
d'Alene
Reservation,
the
Coeur
d'Alene
Tribe
currently
administers
a
smoke
management
program
under
its
inherent
Tribal
authority
in
coordination
with
the
Idaho
State
Department
of
Agriculture
(
ISDA)
and
IDEQ.
The
Coeur
d'Alene
Tribe's
program
has
been
in
place
for
several
years
and
has
undergone
annual
revisions
and
improvements,
including
a
Memorandum
of
Agreement
established
in
2002
between
the
Tribe,
IDEQ,
and
ISDA
relating
to
the
coordination
of
agricultural
smoke
management
plans.
EPA
is
not
applying
the
agricultural
burning
permit
rule
on
the
Coeur
d'Alene
Reservation
because
we
have
not
yet
determined
that
it
is
necessary
or
appropriate
to
promulgate
the
rule
there.

While
the
FARR
provision
for
agricultural
burning
permits
does
not
apply
to
the
Coeur
d'Alene
Reservation
at
this
time,
it
is
possible
that
a
burning
permit
rule
could
be
adopted
in
the
future
should
EPA
determine,
in
consultation
with
the
Coeur
d'Alene
Tribe
and
in
coordination
with
the
other
governments,
that
a
Federally
enforceable
burning
permit
program
is
necessary
or
appropriate.
Another
option
is
for
the
Tribe
to
apply
to
EPA
for
eligibility
for
treatment
in
the
same
manner
as
a
State
(
TAS)
under
the
CAA.
If
approved
for
TAS
to
develop
an
implementation
plan
to
manage
agricultural
burning,
the
Tribe
could
submit
for
EPA
approval
a
TIP
with
provisions
for
burning
permits.
EPA
will
continue
to
work
with
the
Tribe
and
coordinate
with
other
stakeholders
as
we
evaluate
the
need
for
CAA
authorities
there.

9.
Comment:
Five
industry
associations
and
one
company
commented
that
the
proposed
rules
would
establish
regulations
that
are
inconsistent
with
existing
promulgated
regulations
under
the
CAA
and
with
the
CAA
itself.
The
commenters
specifically
commented
that
the
proposed
rules
would
establish
new
terms
or
redefine
existing
terms;
EPA
should
refer
to
existing
definitions
for
terms
used
in
the
proposed
rules.

Response:
See
responses
below
in
J.
1
with
respect
to
the
specific
definitions
identified
by
the
commenters.
8/
19/
04
8
10.
Comment:
One
company
requested
that
EPA
clarify
the
relationship
between
these
generic
FIP
requirements
and
the
source­
specific
requirements
in
the
existing
Fort
Hall
FIP.
Specifically,
the
commenter
requested
that
EPA
clarify
that
the
proposed
generic
FIP
will
supersede
the
existing
Fort
Hall
FIP
because
the
underlying
assumptions
for
the
Fort
Hall
FIP
are
no
longer
valid.

Response:
These
generic
FIP
requirements
are
in
addition
to,
and
do
not
replace
or
supersede,
the
source­
specific
requirements
in
the
existing
Fort
Hall
FIP.
The
Fort
Hall
FIP
applies
to
the
activities
at
the
FMC
facility
as
provided
in
40
CFR
49.10710.
These
generic
FIP
requirements
will
also
apply
to
activities
at
the
FMC
facility
as
well
as
sources
and
activities
within
the
Fort
Hall
PM10
nonattainment
area
that
are
not
covered
by
the
Fort
Hall
FIP.

11.
Comment:
One
State
air
agency
and
one
local
air
agency
commented
that
the
proposed
rule
had
no
provisions
for
New
Source
Review
(
NSR)
or
permits
for
air
pollution
sources
classified
as
minor
sources.
The
State
air
agency
felt
that
a
minor
NSR
program
should
be
included
to
protect
nearby
areas
that
are
in
nonattainment,
as
well
as
to
prevent
industry
sources
from
flocking
to
an
area
with
lax
regulations.
The
State
air
agency
stated
that
any
Tribal
NSR
program
in
Washington
should
be
no
less
stringent
than
the
State
program.

Response:
EPA
Region
10
did
not
propose
a
minor
NSR
program
as
part
of
these
rules
because
EPA
is
in
the
process
of
developing
minor
NSR
rules
that
would
apply
in
Indian
country
throughout
the
nation.
Moreover,
one
Federal
new
source
review
program,
the
prevention
of
significant
deterioration
(
PSD)
permitting
program
at
40
CFR
52.21
already
applies
in
each
of
the
39
reservations
covered
by
these
rules.

12.
Comment:
One
Tribe
commented
that
the
FARR
would
not
meet
EPA's
own
policy
regarding
nonattainment
areas
and
should
be
revised
to
require
stringent
control
technologies,
reasonable
further
progress
determinations
and
NSR
permit
system
requirements.
They
noted
that
the
National
Tribal
NSR
project
will
not
be
complete
for
many
years
and
cannot
be
expected
to
provide
nonattainment
area
protection
in
the
foreseeable
future.

Response:
These
39
FIPs
are
only
intended
to
fill
the
regulatory
gap
with
respect
to
rules
that
apply
generally
to
all
areas
regardless
of
their
attainment
status.
They
are
not
intended
to
comply
with
the
more
stringent
requirements
of
the
CAA
for
nonattainment
areas.
A
FIP
for
a
nonattainment
area
would
be
developed
after
consideration
of
the
specific
air
quality
levels,
air
pollution
sources,
and
available
control
measures
to
ensure
that
the
NAAQS
would
be
attained
and
maintained.
For
example,
EPA
has
already
promulgated
a
FIP
for
the
PM10
nonattainment
area
within
the
Ft.
Hall
Reservation
in
Idaho.
When
developing
that
FIP,
EPA
evaluated
the
sources
within
the
nonattainment
area
that
were
contributing
to
the
violations
of
the
PM10
NAAQS
and
established
control
measures,
including
reasonably
available
control
technology,
for
all
sources
as
necessary
to
ensure
attainment
of
the
NAAQS.
EPA
Region
10
did
not
propose
a
nonattainment
area
new
source
review
rule
(
Part
D
NSR
rule)
as
part
of
these
rules
because
EPA
is
in
the
process
of
developing
a
Part
D
NSR
rule
that
would
apply
in
Indian
country
throughout
8/
19/
04
9
the
nation.

13.
Comment:
One
Tribe
commented
that
EPA
should
address
indoor
air
quality
in
the
preamble
to
the
final
rule
and
describe
how
EPA
protects
air
quality
in
the
indoor
environment
and
why
the
proposed
rules
apply
only
to
the
ambient
air.

Response:
The
rules
published
today
apply
only
to
the
ambient
air.
EPA
has
no
authority
to
regulate
indoor
air
quality,
although
the
Agency
does
have
a
number
of
voluntary
programs
that
include
tools
and
guidance
for
reducing
exposure
to
radon,
tobacco
smoke,
mold,
carbon
monoxide,
and
other
indoor
air
pollutants
in
homes,
schools,
and
commercial
buildings.

B.
Resources
Available
to
Implement
the
Rules
1.
Comment:
Several
commenters
expressed
concern
about
EPA's
ability
to
provide
the
EPA
resources
(
personnel,
compliance
assistance,
outreach)
and
funding
to
Tribes
necessary
for
the
successful
implementation
of
the
FIPs.
Others
commented
specifically
that
EPA
needs
to
provide
a
commitment
of
resources,
a
substantiation
that
EPA
has
the
internal
capacity
to
implement
these
rules,
a
substantiation
that
EPA
will
be
able
to
finance
implementation
of
these
rules,
and
an
indication
of
what
human
resources
EPA
will
be
assigning
to
implement
these
rules.

One
commenter
noted
that
if
a
Tribe
wishes
to
have
a
meaningful
and
involved
role
in
implementing
the
rules,
it
is
likely
that
human
and
financial
resources
would
be
necessary,
but
the
proposal
did
not
provide
a
framework
for
how
this
program
will
be
funded.
One
commenter
stated
its
belief
that
EPA
will
be
obligated
to
secure
and
allocate
sufficient
funding
for
implementation
of
these
rules.

Response:
EPA
has
developed
an
Implementation
Framework
as
a
first
step
toward
describing
our
overall
approach
to
FARR
implementation.
The
Implementation
Framework,
which
is
a
working
draft
subject
to
further
changes
and
refinement,
is
intended
to
give
a
general
sense
of
EPA's
approach
to
the
implementation
of
each
section
of
the
FARR;
the
alignment
of
resources
with
implementation
needs;
and
the
ways
in
which
EPA
will
involve
Tribes
in
FARR
implementation.
This
document
"
Framework
for
Implementation
of
the
FARR"
is
available
in
the
docket.

As
we
stated
when
proposing
these
rules,
EPA
is
issuing
only
those
regulations
that
it
believes
it
has
the
resources
to
implement
and
enforce.
Over
the
near
term,
EPA
does
not
anticipate
adding
significant
new
resources,
either
for
EPA
or
for
the
Tribes,
to
implement
the
FARR,
although
EPA
expects
to
shift
some
existing
resources
to
respond
to
the
FARR
workload.
Since
EPA
is
committed
to
continue
funding
Tribes
to
build
their
capacity
for
air
quality
matters,
EPA
will
seek
additional
national
and
regional
resources
as
needed
or
appropriate
to
support
Tribes
and
to
further
this
innovative
regional
initiative.
8/
19/
04
10
These
rules
reflect
EPA's
implementation
strategy.
To
the
extent
practicable,
these
regulations
minimize
the
implementation
burdens
upon
EPA
and
the
regulated
community
while
establishing
requirements
that
are
unambiguous
and
enforceable.

2.
Comment:
Commenters
stated
that
they
did
not
want
EPA
to
shift
its
support
away
from
Tribal
capacity
building
and
program
development
in
exchange
for
implementing
the
FIPs.
One
Tribe
added
that
the
rules
should
be
implemented
in
a
manner
that
complements
Tribes'
current
development
and
research
activities
related
to
air
quality.
Another
Tribe
commented
that
EPA
should
not
use
a
"
cookie
cutter
approach"
by
which
EPA
would
treat
all
Tribes
the
same
and
that
TIPs
and
FIPs
should
be
administered
consistent
with
the
goals
and
objectives
of
each
individual
Tribe.

Response:
Comments
are
noted.
As
stated
earlier,
EPA
fully
intends
to
continue
supporting
the
efforts
of
individual
Tribes
to
develop
the
capacity
to
manage
air
programs
within
the
exterior
boundaries
of
their
reservation,
including
the
development
of
TIPs.
EPA
believes
these
rules
will
support
Tribal
capacity
building
efforts
by
providing
a
mechanism
for
Tribes
to
actively
participate
in
rule
implementation
until
such
time
that
a
Tribal
program
is
developed
and
in
place.
Additionally,
we
believe
that
the
implementation
of
these
rules
can
complement
Tribes'
on­
going
air
quality
work
and
individual
Tribes'
goals
and
objectives.

3.
Comment:
One
local
air
agency
commented
that
there
appeared
to
be
little
in
the
proposed
rule
to
ensure
timely
and
effective
implementation,
including
the
date
by
which
the
rule
would
be
fully
implemented
and
an
implementation
schedule.
The
commenter
stated
that
the
rule
must
provide
milestones
and
standards
for
implementation,
with
sanction
for
non­
compliance.

Response:
The
effective
date
of
the
final
rules
will
be
60
days
after
publication
in
the
Federal
Register
and
will
be
clearly
identified
in
the
Federal
Register
notice.
Sources
on
the
identified
39
Indian
reservations
will
be
required
to
comply
with
the
requirements
in
the
final
rules
beginning
on
the
effective
date.
A
few
of
the
rules
require
sources
to
take
specific
actions
by
certain
dates.
These
"
implementation
dates"
are
also
clearly
identified
in
the
final
rules.
For
example,
the
registration
rule
at
§
49.138
requires
existing
sources
(
except
for
those
exempted)
to
submit
an
initial
registration
by
February
15,
2007;
the
burn
permit
rules
at
§
49.132,
§
49.133,
and
§
49.134
require
people
who
want
to
burn
on
the
Nez
Perce
Reservation
to
apply
for
a
permit
beginning
on
March
1,
2005;
and
the
burn
permit
rules
at
§
49.132,
§
49.133,
and
§
49.134
require
those
who
want
to
burn
on
the
Umatilla
Indian
Reservation
to
apply
for
a
permit
beginning
on
January
1,
2007.

EPA
is
responsible
for
implementing
these
rules
in
a
timely
and
effective
manner.
EPA
Region
10
has
developed
a
framework
for
the
implementation
of
these
rules
and
detailed
strategies
for
each
rule.
The
document
titled
"
Framework
for
Implementation
of
the
FARR"
is
available
in
the
docket.
EPA
has
written
these
rules
in
a
manner
that
accounts
for
effective
implementation.
The
phased
"
implementation
dates"
for
different
elements
of
the
FARR
will
help
us
to
spread
out
the
implementation
work
and
prioritize
our
resources
for
implementation,
which
will
help
to
ensure
8/
19/
04
11
that
the
necessary
programs
for
full
implementation
are
in
place.
This
phased
approach
provides
milestones
by
which
EPA
can
measure
its
readiness
to
implement
the
various
rules
being
published
today.

C.
Economic
Effects
1.
Comment:
Some
comments
raised
concerns
that
the
proposed
rules
may
have
an
economic
effect
on
the
agricultural
sector
and
could
affect
business
development
on
reservations.
A
number
of
farmers
or
organizations
that
represent
the
farming
community
expressed
concern
that
the
proposed
rules
will
establish
requirements
to
eliminate
field
burning.
The
comments
described
the
value
of
the
agricultural
sector
within
specific
reservations,
described
why
there
are
no
economic
alternatives
to
burning,
and
expressed
concern
that
the
proposed
rules
in
general
would
hinder
their
ability
to
use
their
land
to
make
a
living
and
also
diminish
the
value
of
their
land.

Response:
The
commenters
in
the
agricultural
community
who
expressed
concern
that
the
rules
as
proposed
would
cause
economic
disruption
by
eliminating
field
burning
appear
to
have
misunderstood
the
proposal.
EPA
did
not
propose
a
ban
on
agricultural
field
burning,
and
these
final
rules
do
not
establish
any
ban
on
field
burning.
The
rule
for
general
open
burning
at
§
49.131
prohibits
certain
materials
from
being
openly
burned,
but
does
not
prohibit
agricultural
burning.
On
the
Nez
Perce
Reservation
and
Umatilla
Indian
Reservation,
in
addition
to
the
general
open
burning
rule,
EPA
is
establishing
a
rule
for
agricultural
burning
permits
at
§
49.133
that
requires
farmers
to
obtain
approval
of
a
permit
from
EPA
before
conducting
an
agricultural
burn.
Currently,
EPA
and
the
Nez
Perce
Tribe
have
established
an
intergovernmental
agreement
with
the
ISDA
and
the
IDEQ
that
provides
for
a
coordinated
management
of
agricultural
burning
activities
in
the
Clearwater
Airshed;
if
necessary,
the
agreement
will
be
modified
to
reflect
the
role
of
these
rules.
EPA
expects
to
establish
a
similar
intergovernmental
agreement
with
the
Confederated
Tribes
of
the
Umatilla
Indian
Reservation.
Additionally,
the
requirements
in
the
FIPs
for
agricultural
burning
permits
and
open
burning
are
similar
to
requirements
in
surrounding
jurisdictions.

2.
Comment:
A
number
of
farmers,
organizations
that
represent
the
farming
community,
and
several
local
governments
were
concerned
that
if
the
rules
authorize
Tribal
governments
to
regulate
nonmember
residents
of
a
particular
reservation,
the
jurisdictional
issues
that
arise
from
this
rule
would
have
a
negative
impact
on
businesses
in
the
affected
areas.
The
commenters
were
worried
that
jurisdictional
conflict
could
inhibit
new
business
and
industry
from
locating
on
property
subject
to
Tribal
air
quality
control
and
drive
businesses
out
of
the
affected
areas.
However,
these
commenters
did
not
provide
any
specific
information
about
the
potential
economic
impacts
of
the
proposed
rules.
Several
commenters
were
concerned
about
the
economic
effects
and
process
for
EPA
or
the
Tribes
to
establish
fees
(
for
permits
or
other
purposes),
fines,
or
taxes.

Response:
As
discussed
elsewhere,
a
number
of
commenters
have
misunderstood
the
proposed
8/
19/
04
12
rules
as
providing
authority
to
Tribal
governments
over
nonmembers.
The
commenters'
concerns
that
the
FARR
would
inhibit
new
businesses
and
drive
out
existing
business
appear
to
be
based
upon
this
misunderstanding.
The
FIPs
are
Federal
rules
issued
by
EPA
under
the
Federal
CAA,
and
do
not
provide
any
authority
for
Tribes
to
use
Tribal
laws
to
regulate
nonmember
conduct
on
any
reservation
or
for
Tribes
to
enforce
Tribal
law
in
Tribal
courts.
EPA
already
regulates
businesses
on
these
Indian
reservations
under
the
CAA
under
existing
Federal
regulatory
programs
such
as
the
PSD,
National
Emission
Standards
for
Hazardous
Air
Pollutants
(
NESHAP),
and
New
Source
Performance
Standards
(
NSPS)
programs.
Through
the
FARR,
EPA
is
establishing
additional
Federal
requirements
for
industry
and
residents
on
reservations
that
are
similar
to
the
requirements
imposed
by
the
rules
of
State
and
local
air
agencies
in
the
surrounding
areas.
A
number
of
the
rules
establish
requirements
applicable
to
industrial
and
commercial
sources
that
will
be
incorporated
into
the
source's
Federal
operating
permit
issued
by
EPA
pursuant
to
40
CFR
part
71
and
Title
V
of
the
Act.
The
rule
authorizing
non­
Title
V
operating
permits
at
§
49.139
offers
a
real
benefit
to
industry
and
businesses
by
providing
a
means
to
obtain
enforceable
limits
on
the
source's
potential
to
emit
for
purposes
of
PSD,
Title
V,
or
section
112
of
the
Act.
These
rules
also
provide
greater
certainty
to
businesses
by
clearly
identifying
applicable
CAA
requirements.

These
rules
do
not
require
payment
of
any
fees.
Any
formal
enforcement
actions
(
penalties)
would
proceed
under
EPA's
administrative
and
civil
judicial
procedures.
EPA
anticipates
its
compliance
assurance
and
enforcement
policies
will
be
similar
to
response
policies
currently
used
by
State
and
local
air
agencies
in
Region
10
for
similar
types
of
violations,
but
with
the
additional
use
of
Region
10
Enforcement
Procedures
in
Indian
Country.
These
rules
do
not
give
Tribes
any
additional
authority
to
collect
fees,
penalties,
or
taxes.

3.
Comment:
One
Tribe
requested
clarification
that
the
$
140,000
annualized
labor
costs
for
sources
and
$
17,000
annualized
non­
labor
costs
for
sources
are
the
annual
costs
for
the
total
of
all
businesses
affected
by
the
rules,
and
are
not
costs
for
each
business
individually.

Response:
The
annualized
labor
costs
for
sources
and
annualized
non­
labor
costs
for
sources,
described
in
the
economic
impact
analysis
to
support
these
rules,
are
the
annual
costs
for
the
total
of
all
businesses
affected
by
the
rules,
and
not
for
each
business
individually.

4.
Comment:
One
Tribe
commented
that
EPA's
evaluation
of
the
economic
impacts
of
the
rule
under
the
Unfunded
Mandates
Reform
Act
(
UMRA)
stated
that
Tribal
governments
would
incur
no
expenditure
in
implementing
and
enforcing
the
rules
unless
a
Tribe
chooses
to
do
so.
The
Tribe
commented
that
unless
a
Tribe
were
to
assume
a
completely
non­
participatory
role,
human
and
financial
resources
would
be
necessary
if
a
Tribe
wished
to
have
a
meaningful
and
involved
role.

Response:
The
Federal
rules
promulgated
here
apply
to
air
pollution
sources
operating
on
the
specific
reservations,
and
are
administered
and
enforced
by
EPA.
Therefore,
UMRA
is
not
implicated
because
the
rules
do
not
require
Tribal
governments
to
participate
in
administering
8/
19/
04
13
these
rules
or
to
incur
costs.

5.
Comment:
One
citizen
group
refuted
the
assumptions
that
there
would
be
no
significant
costs
to
residents,
local
governments,
State
and
local
air
agencies,
or
industries
and
businesses.
Specifically,
they
questioned
the
assumptions
that
there
would
be
no
capital
costs
incurred
under
any
of
these
rules,
that
facilities
will
not
add
control
devices
as
a
result
of
these
rules,
and
that
incremental
capital
costs
and
incremental
O&
M
costs
were
zero.
The
commenter
did
not
provide
any
data
or
specific
information.

Response:
In
developing
the
proposed
rule,
EPA
estimated
the
economic
impacts
of
these
requirements
in
an
Economic
Impact
Analysis
(
EIA).
In
the
Federal
Register
notice
for
the
proposed
rule,
EPA
specifically
solicited
comments
on
certain
assumptions
regarding
capital
costs,
operation
and
maintenance
(
O&
M)
costs,
and
the
costs
of
meeting
visible
emission
and
fugitive
emission
requirements,
conducting
source
tests,
and
meeting
the
sulfur
content
in
fuel
limits.
EPA
explained
that,
for
the
purposes
of
generating
cost
estimates
in
the
EIA
for
each
of
the
proposed
rules,
EPA
assumed
that
there
would
be
no
capital
costs
incurred
under
any
of
these
rules.
EPA
stated
that
it
believes
sources
generally
are
complying
with
State
and
local
rules
in
the
absence
of
Federal
rules
because
the
sources
may
have
believed
they
were
subject
to
State
and
local
rules
or
otherwise
chose
to
follow
such
rules.
Furthermore,
based
on
information
obtained
from
Tribal,
State,
and
local
authorities,
as
well
as
businesses
and
other
entities
affected
by
these
rules,
EPA
did
not
anticipate
that
facilities
would
add
control
devices
as
a
result
of
these
rules.
In
the
proposal,
EPA
did
not
estimate
O&
M
costs
to
comply
with
these
rules
because
insufficient
data
were
available
to
estimate
them.
EPA
has
again
evaluated
the
potential
economic
impacts
of
these
rules,
after
considering
comments
on
the
proposed
rules.
No
specific
information
was
submitted
about
the
EIA
assumptions
in
comments
on
the
proposed
rulemaking
to
indicate
that
the
EIA
prepared
by
EPA
for
the
rules
is
incorrect.
The
EIA
has
been
updated
to
reflect
rule
revisions,
updated
wage
rates,
and
new
information
about
the
sources
on
the
39
Indian
reservations.
The
final
EIA
is
available
in
the
docket
for
this
rulemaking.

D.
Public
Participation
1.
Comment:
When
the
proposed
rules
were
published
on
March
15,
2002,
EPA
provided
a
ninety­
day
public
comment
period
ending
on
June
13,
2002.
Before
the
close
of
the
comment
period,
some
local
governments
and
several
individuals
requested
more
time
to
comment
on
the
proposed
rule,
writing
that
more
time
was
needed
to
provide
all
affected
parties
an
opportunity
to
comment
and
to
allow
thorough
review
of
the
proposed
rule
by
elected
officials.
Many
commenters
also
criticized
EPA
for
not
giving
more
notice
to
the
public
and
affected
sources
about
the
proposed
rule
and
not
giving
them
an
opportunity
for
input.
EPA
reopened
the
comment
period
from
August
9,
2002,
until
October
10,
2002,
and
held
a
public
hearing
in
Toppenish,
Washington,
on
the
Yakama
Reservation,
on
September
10,
2002.
The
hearing
was
advertised
in
various
newspapers
in
Washington,
Oregon,
and
Idaho.
EPA
offered
an
afternoon
information
session
for
questions
and
answers
before
the
evening
hearing
in
Toppenish.
8/
19/
04
14
Approximately
90
people
attended
the
information
session
and
hearing,
and
28
people
testified
at
the
hearing.
A
copy
of
the
transcript
from
the
public
hearing
is
in
the
docket.

During
the
second
comment
period,
EPA
received
a
number
of
additional
comments
requesting
more
time
for
public
participation.
Many
commenters
requested
additional
hearings
in
other
locations
because
they
were
not
able
to
attend
the
Toppenish
hearing
due
to
distance
or
timing.
A
number
of
commenters
criticized
EPA
for
consulting
with
Tribal
governments
for
a
number
of
years
during
the
development
of
the
proposed
rules,
and
stated
that
EPA
had
not
provided
adequate
time
for
local
governments
to
participate.
A
number
of
other
commenters
wrote
that
EPA
had
offered
enough
time
for
interested
parties
to
comment.

Several
comments
criticized
EPA,
asserting
that
EPA
failed
to
follow
the
EPA
Public
Involvement
Policy
(
46
FR
5736,
January
19,
1981
and
68
FR
33946,
June
6,
2003)
for
early
consultation
and
involvement
prior
to
publishing
the
proposed
rule.
Commenters
also
stated
that
EPA
failed
to
comply
with
Executive
Order
13132
on
Federalism,
asserting
that
EPA
did
not
meet
its
requirements
for
early
consultation
with
State
and
local
officials
during
rule
development.
Several
commenters
stated
that
EPA
had
not
completed
an
environmental
assessment
of
the
rules,
which
the
commenters
believed
was
subject
to
the
National
Environmental
Policy
Act
(
NEPA).

Response:
EPA
believes
it
provided
adequate
time
and
opportunity
for
the
public,
as
well
as
State
and
local
agencies,
to
fully
participate
in
the
rulemaking.
EPA
invited
review
of
the
proposed
rule
from
State
and
local
air
agencies
well
in
advance
of
starting
the
public
comment
period
in
March
2002,
reopened
the
original
90­
day
comment
period
at
the
request
of
commenters,
and
held
a
public
hearing
one
month
before
the
public
comment
period
ended.

When
determining
how
much
time
to
offer
for
public
comment,
EPA
also
considered
that
State
and
local
air
agencies
had
opportunities
to
review
and
comment
on
the
proposal
well
in
advance
of
the
public
comment
period.
In
the
proposal,
EPA
noted
it
had
provided
advance
draft
copies
of
the
proposed
rules
to
State
and
local
air
agencies
in
Idaho,
Oregon,
and
Washington.
Specifically,
EPA
had
provided
a
complete
draft
of
the
proposal
to
State
and
local
air
agencies
in
July
2001
and
solicited
input.
Generally,
the
States
and
local
air
agencies
were
pleased
that
EPA
was
developing
rules
for
Indian
reservations
and
provided
useful
feedback
on
the
draft.

EPA
disagrees
with
the
commenters
who
think
that
EPA
should
not
have
worked
so
closely
with
Tribal
governments.
The
Agency
believes
it
has
proceeded
with
this
rulemaking
consistent
with
all
Agency
policies
and
Presidential
directives.
The
approach
EPA
followed
to
consult
with
affected
Tribes
in
Region
10
in
the
development
of
these
rules
is
consistent
with
EPA's
National
Indian
Policy,
Executive
Order
13175
"
Consultation
and
Coordination
with
Indian
Tribal
Governments,"
65
FR
67249,
November
6,
2000,
and
other
Federal
policies
on
Tribal
consultation
that
require
EPA
to
develop
an
accountable
process
to
ensure
meaningful
and
timely
input
by
Tribal
officials
in
the
development
of
regulatory
policies
that
have
Tribal
implications.

Moreover,
as
discussed
above,
EPA
also
provided
State
and
local
air
agencies
an
opportunity
to
review
and
comment
on
a
complete
draft.
When
we
issued
the
proposed
rule,
EPA
published
8/
19/
04
15
many
notices
of
the
public
comment
opportunity
and
offered
to
hold
a
public
hearing
if
requested.
When
we
decided
to
reopen
the
comment
period,
we
gave
widespread
notice
of
the
additional
time
and
of
the
scheduled
public
hearing.
The
fact
that
many
Tribal,
State,
and
local
governments,
and
citizens
were
aware
of
the
proposal,
submitted
written
comments,
and
attended
the
public
hearing
demonstrates
the
effectiveness
of
the
notice
provided.
The
public
participation
process
EPA
used
here
is
consistent
with
EPA's
Public
Involvement
Policy,
that
by
its
terms
is
designed
merely
to
guide
the
Agency's
efforts.
EPA
also
has
fully
complied
with
all
Executive
Orders
applicable
to
this
rulemaking.
In
the
proposal,
EPA
specifically
evaluated
Executive
Order
13132,
Federalism,
concluding
that
the
it
did
not
apply
to
the
proposed
rules
because
they
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.
These
rules
only
prescribe
regulations
for
facilities
in
areas
where
a
State
does
not
administer
an
approved
CAA
program,
and
thus
does
not
have
any
direct
effect
on
any
State.
Moreover,
it
does
not
alter
the
relationship
or
the
distribution
of
power
and
responsibilities
established
in
the
CAA.
Thus,
Executive
Order
13132
does
not
apply
to
this
rulemaking.
With
regard
to
NEPA,
Congress
passed
the
Energy
Supply
and
Environmental
Coordination
Act
in
1974,
which
exempts
all
actions
under
the
CAA
from
NEPA.
In
summary,
EPA
believes
that
we
have
met
all
requirements
for
public
participation
applicable
to
this
rulemaking
EPA
disagrees
with
one
commenter
who
wrote
that
the
proposed
rule
was
not
available
to
the
public
on
the
Internet.
The
Notice
of
Proposed
Rulemaking
published
on
March
15,
2002,
was
available
on
the
Internet
the
day
of
publication.
Initially
after
publication
of
the
proposal,
the
ICR
was
not
immediately
available
on
the
Internet,
but
the
problem
was
quickly
resolved.
Additionally,
all
documents
supporting
this
action
were
available
for
public
inspection
in
the
docket
for
this
rulemaking
at
all
times.

E.
EPA
Exceeded
its
Authority
under
the
Clean
Air
Act
1.
Comment:
A
local
government
agency
commented
that
instead
of
adopting
Federal
requirements,
EPA
should
use
the
process
of
approving
Tribes
for
TAS,
as
required
by
the
CAA.
One
commenter
stated
that
EPA
should
ensure
that
the
proposed
rules
do
not
circumvent
the
CAA's
TAS
requirements,
because
the
group
is
concerned
that
without
such
provisions,
the
standards
of
CAA
section
301(
d)
could
be
circumvented
or
replaced.

Other
commenters
criticized
EPA
for
not
establishing
milestones
to
implement
CAA
provisions
as
soon
as
practicable,
since
States
and
delegated
local
air
agencies
must
do
so.
The
commenters
also
criticized
EPA
for
not
establishing
schedules
for
implementation,
as
States
are
required
to
do
under
the
CAA.

Response:
The
rules
established
here
neither
affect
a
Tribe's
eligibility
for
TAS
nor
change
EPA's
rules
establishing
the
TAS
process.
EPA
is
promulgating
these
gap­
filling
rules
for
Indian
reservations
in
Idaho,
Oregon,
and
Washington
after
consulting
with
the
affected
Tribes
about
air
8/
19/
04
16
quality
issues
they
face.
EPA
continues
to
be
concerned
that
there
is
a
gap
in
air
quality
requirements
in
these
areas
under
the
CAA.
Many
Tribes
in
the
Region
are
in
the
process
of
developing
air
quality
management
programs
under
the
CAA;
however,
as
of
April
2004,
no
Tribe
in
Region
10
has
submitted
Tribal
regulations
for
EPA
approval
as
a
TIP.
The
FARR,
as
described
elsewhere,
is
intended
to
fill
the
gap
in
current
regulations
until
such
time
as
individual
Tribes
develop
and
implement
approved
TIPs.

With
regard
to
the
comment
on
implementation
schedules,
EPA
thoroughly
discussed
in
the
final
Tribal
Authority
Rule
(
TAR)
rulemaking
(
63
FR
7265)
how
it
is
meeting
the
deadlines
established
in
section
110
of
the
CAA.
EPA
has
interpreted
the
CAA
as
offering
flexibility
to
Tribes
regarding
the
time
needed
to
establish
a
CAA
program,
and
the
CAA
does
not
compel
Tribes
to
establish
a
CAA
program.
Therefore,
EPA
determined
that
it
would
be
infeasible
and
inappropriate
to
subject
Tribes
to
the
mandatory
submittal
deadlines
imposed
by
the
Act
on
States.
However,
the
TAR
included
a
specific
requirement
at
§
49.11
for
EPA
to
establish
a
FIP
as
necessary
or
appropriate
to
protect
air
quality
within
a
reasonable
time
as
necessary
or
appropriate
if
Tribal
efforts
do
not
result
in
adoption
and
approval
of
Tribal
plans
or
programs.
Thus,
EPA
will
continue
to
be
subject
to
the
basic
requirement
to
issue
any
necessary
or
appropriate
FIP
for
affected
Tribal
areas
within
a
reasonable
time.
For
more
information
regarding
implementation
schedules,
please
see
response
B.
3
above.

2.
Comment:
Several
commenters
wrote
that
EPA
has
exceeded
its
authority
by
establishing
emission
limitations
(
quantitative,
narrative,
or
technology­
based
standards)
that
are
not
required
in
order
to
meet
the
NAAQS.
These
commenters
asserted
that
the
CAA
authorizes
EPA
regulations
only
if
needed
to
meet
or
attain
the
NAAQS,
and
then
only
at
levels
justified
to
achieve
health
based
measures.
The
commenters
stated
that
the
narrative
standards
that
would
be
established
in
the
proposed
rules
do
not
appear
to
derive
from
authority
promulgated
by
Congress
under
the
terms
of
the
CAA.
These
commenters
asserted
that
the
CAA
does
not
provide
authority
to
regulate
sources
in
an
attainment
area.

One
company
commented
that
EPA's
rationale
for
establishing
emission
limitations
for
existing
sources
in
attainment
areas
conflicts
with
the
CAA's
regulatory
scheme
for
stationary
sources.
The
commenter
argued
that
if
an
area
is
already
well
in
compliance
with
the
NAAQS,
then
there
is
no
clear
requirement
in
the
Act
to
regulate
existing
sources.
The
commenter
further
argued
that
the
requirement
of
the
Act
that
plans
for
attainment
areas
must
include
measures
necessary
to
"
prevent
significant
deterioration
of
air
quality"
is
limited
to
the
preconstruction
permitting
requirements
for
new
major
stationary
sources
and
major
modifications
to
existing
stationary
sources.
The
commenter
stated
that
EPA
offers
no
justification
consistent
with
the
statutory
scheme
for
regulating
existing
sources,
nor
does
it
offer
a
reasonable
explanation
for
the
level
of
control
selected.
The
commenter
concluded
by
stating
that
EPA
should
only
promulgate
emission
limitations
and
controls
that
(
1)
are
consistent
with
the
statutory
scheme,
and
(
2)
are
at
levels
of
stringency
for
which
EPA
can
demonstrate
a
specific
basis,
consistent
with
the
statutory
scheme.

Response:
EPA
disagrees
that
its
authority
under
the
CAA
is
limited
to
regulating
sources
only
8/
19/
04
17
as
proven
necessary
to
attain
or
maintain
the
NAAQS
and
also
disagrees
with
the
commenters'
position
that
the
PSD
authority
only
applies
to
new
major
sources.
EPA
believes
it
has
ample
authority
under
the
CAA
to
regulate
air
pollutants
that
may
pose
a
threat
to
human
health
and
the
environment,
and
is
not
limited
to
addressing
sources
only
in
areas
that
are
failing
to
attain
a
NAAQS.

While
the
authority
for
EPA
to
establish
these
Federal
rules
for
Indian
reservations
comes
primarily
from
section
301(
d)
of
the
CAA,
the
Agency
will
look
to
all
of
its
CAA
authorities
when
establishing
requirements
that
apply
to
both
criteria
and
non­
criteria
pollutants.
The
primary
guide
for
evaluating
the
scope
of
implementation
plans
is
found
in
section
110
of
the
CAA.
Section
110(
a)(
1)
of
the
CAA
is
the
basis
for
authority
to
establish
implementation
plan
requirements
that
provide
for
the
maintenance
of
a
primary
or
secondary
NAAQS;
however,
section
110
includes
a
broad
list
of
requirements
that
are
to
be
included
in
implementation
plans
and
which
may
regulate
pollutants
other
than
the
criteria
pollutants.
For
example,
the
emergency
power
authority
required
by
section
110(
a)(
2)(
G)
provides
authority
to
establish
requirements
for
pollutants
where
a
pollution
source
or
combination
of
sources
is
presenting
an
imminent
and
substantial
endangerment
to
public
health
or
welfare
or
the
environment,
without
regard
to
whether
a
pollutant
is
regulated
by
a
NAAQS.
Under
the
authority
of
section
110
and
part
C
of
the
CAA,
EPA
is
authorized
to
establish
requirements
for
regulated
air
pollutants
for
which
EPA
has
not
promulgated
standards
under
section
109.
Section
110(
a)(
2)(
D)
states
that
each
implementation
plan
should
contain
provisions
prohibiting
"
any
source
or
other
type
of
emissions
activity
within
the
State
from
emitting
any
air
pollutant
in
amounts"
which
will
interfere
with
measures
required
under
a
part
C
implementation
plan
"
to
prevent
significant
deterioration
of
air
quality
or
protect
visibility."
There
are
also
several
other
applicable
authorities
in
part
C
of
the
CAA,
which
addresses
PSD.
Section
160(
1)
of
the
CAA
authorizes
EPA
"
to
protect
public
health
and
welfare
from
any
actual
or
potential
adverse
effect
which
in
the
Administrator's
judgment
may
be
reasonably
anticipate[
d]
to
occur
from
air
pollution
or
from
exposures
to
pollutants
in
other
media
.
.
.
notwithstanding
attainment
and
maintenance
of
all
national
ambient
air
quality
standards."
Section
161
of
the
CAA
states
that
each
applicable
implementation
plan
will
contain
"
emission
limitations
and
such
other
measures
as
may
be
necessary
.
.
.
to
prevent
significant
deterioration
of
air
quality"
in
attainment
or
unclassifiable
areas.
These
provisions
of
the
CAA
authorize
EPA
to
establish
permit
conditions
and
other
requirements
to
regulate
activities
that
emit
pollutants,
even
where
pollutant
levels
in
the
ambient
air
are
below
the
NAAQS
for
criteria
pollutants
in
attainment
or
unclassifiable
areas.
The
FIPs
issued
by
EPA
also
can
rely
on
other
authorities
in
the
CAA
to
regulate
and
obtain
information
about
sources
of
pollutants
other
than
NAAQS
pollutants,
such
as
our
authority
to
require
reporting
and
recordkeeping
under
section
114
of
the
CAA.
EPA
believes
its
authority
to
promulgate
these
rules
under
the
CAA
is
clear
and
consistent
with
its
previous
rules
promulgated
pursuant
to
section
301(
d)
that
were
upheld
by
applicable
courts
of
the
United
States.

Additionally,
even
though
most
reservations
in
Region
10
are
in
compliance
with
the
NAAQS,
today's
rules
establish
additional
permanent,
enforceable
measure
to
help
to
maintain
air
quality
on
reservations
at
levels
that
comply
with
the
NAAQS.
EPA's
final
rules
address
clearly
8/
19/
04
18
identified
air
pollution
concerns
of
the
Pacific
Northwest
Indian
reservations
based
on
information
gathered
in
a
number
of
ways,
including
review
of
State
and
local
air
agency
implementation
plans,
as
discussed
in
the
proposed
rules.
EPA
believes
that
it
is
appropriate
to
focus
initially
on
the
sources
in
Region
10
that
have
been
identified
as
ones
that
may
cause
or
contribute
to
prevalent
air
quality
problems
on
reservations
and
in
shared
airsheds
of
the
Pacific
Northwest.
Aside
from
existing
national
emissions
standards
and
Federal
requirements
described
elsewhere,
these
FIPs
are
the
first
building
blocks
under
the
CAA
to
address
such
emissions.
In
response
to
the
comment
about
the
level
of
control
selected,
please
see
response
A.
7.

F.
EPA
Assuming
State
Authority
1.
Comment:
A
number
of
commenters
wrote
that
nonmember
reservation
residents
and
their
private
property
within
a
reservation
are
under
State
and
county
jurisdiction,
and
that
the
proposed
rules
usurp
the
rights
of
State
and
local
air
authorities
to
manage,
control
and
enforce
air
quality
requirements
on
non­
trust
parcels
within
the
exterior
boundaries
of
the
reservation.
Some
commenters
believed
the
Federal
government
no
longer
has
jurisdiction
over
properties
within
reservations
that
are
in
fee
simple
title
and
now
owned
by
non­
Native
Americans.
A
commenter
cited
25
Code
of
Federal
Regulations
(
CFR)
1.4,
the
Constitution
of
the
State
of
Washington,
and
Washington
laws
enacted
to
implement
Federal
law
Public
Law
280
as
supporting
State
jurisdiction
over
allotted
lands.
The
commenters
requested
that
the
proposed
rule
be
reexamined
for
consistency
and
compliance
with
recent
pertinent
U.
S.
Supreme
Court
rulings.

Commenters
wrote
that
EPA
has
erroneously
determined
that
the
State
of
Washington
does
not
have
authority
to
administer
environmental
laws
for
non­
trust
lands
in
the
State
under
an
approved
program.
Other
commenters
wrote
that
EPA
has
not
properly
determined
that
the
State
does
not
have
such
jurisdiction
as
required
by
State
of
Michigan
v.
EPA,
268
F.
3d
1075
(
D.
C.
Cir.
2001).
The
commenters
also
questioned
whether
EPA
could
impose
its
authority
on
non­
Tribal
Title
V
sources
without
withdrawing
its
delegation
to
State
and
local
air
authorities.

A
State
environmental
quality
agency
disagreed
with
EPA's
position
that
States
generally
lack
the
authority
to
regulate
air
quality
in
Indian
country,
and
cited
section
116
of
the
CAA
as
specifically
preserving
State
law
from
preemption
with
respect
to
air
emission
standards.
One
commenter
also
asked
EPA
to
describe
how
it
will
determine
the
reservation
status
of
a
source
and
whether
there
is
a
question
of
the
Indian
country
status
of
the
source.

Commenters
expressed
a
variety
of
other
views
as
to
why
they
believe
the
State,
not
the
Federal
government,
or
a
Tribe,
has
jurisdiction
for
air
quality
programs
on
Indian
reservations.
Several
commenters
wrote
that
the
new
Federal
rules
are
not
needed
because
they
would
duplicate
State
and
local
government
rules
and
would
subject
sources
to
another
set
of
regulations
for
the
same
activity.
One
commenter
asserted
that
this
duplication
would
be
a
burden
on
taxpayers.
One
commenter
wrote
that
Congress
has
given
too
much
power
to
EPA,
and
that
EPA
has
exceeded
its
delegation
of
responsibility.
One
citizen
stated
that
the
regulatory
gap
referred
to
in
the
8/
19/
04
19
proposed
rule
is
a
jurisdictional
gap
created
by
EPA,
and
that
EPA
has
redefined
a
reservation
to
include
all
properties,
regardless
of
their
ownership.
The
commenter
stated
that
such
a
gap
does
not
exist;
they
are
regulated
by
applicable
State
and
county
authorities
in
charge
of
air
quality.

To
address
their
concerns
by
allowing
the
State
to
regulate
nonmembers,
some
commenters
recommended
that
EPA
change
language
regarding
applicability
of
the
proposed
rule.
One
suggestion
was
to
make
the
rules
applicable
only
to
"
enrolled
Tribal
members
on
the
reservation";
another
suggestion
was
to
make
the
rules
applicable
only
to
Tribal
trust
properties
and
Tribal
members.

Response:
EPA
is
issuing
the
FARR
under
the
CAA
consistent
with
its
authority
and
previous
actions
to
establish
implementing
regulations
under
the
CAA
in
Indian
country.
EPA
has
already
interpreted
the
CAA
to
authorize
EPA
regulation
of
all
sources
within
an
Indian
reservation,
and
courts
that
reviewed
challenges
to
those
rules
have
affirmed
EPA's
interpretation,
which
is
the
basis
for
the
FARR
rulemaking.
EPA
interpretation
of
section
301
of
the
CAA
as
providing
EPA
authority
to
issue
these
FIPs
can
be
found
in
the
final
rules
entitled
"
Indian
Tribes:
Air
Quality
Planning
and
Management,''
also
know
as
the
"
Tribal
Authority
Rule"
or
"
TAR",
February
12,
1998,
63
FR
7254;
and
"
Federal
Operating
Permits
Program,
Final
Rule",
February
19,
1999,
64
FR
8251­
8254.

In
the
CAA,
Congress
gave
EPA
broad
authority
to
protect
air
resources
throughout
the
nation,
including
the
air
resources
on
Indian
reservations
and
other
areas
of
Indian
country.
In
the
TAR,
EPA
explained
that
it
intends
to
use
its
authority
under
the
CAA
"
to
protect
air
quality
throughout
Indian
country"
by
directly
implementing
the
CAA's
requirements
where
Tribes
have
chosen
not
to
develop
or
implement
a
CAA
program.
EPA
wrote
in
the
final
rule
at
40
CFR
49.11
that
it
would
"
promulgate
without
unreasonable
delay
such
Federal
implementation
plan
provisions
as
are
necessary
or
appropriate
to
protect
air
quality"
for
these
areas.

As
EPA
has
stated
elsewhere,
States
generally
lack
the
authority
to
regulate
air
quality
in
Indian
country.
See
California
v.
Cabazon
Band
of
Mission
Indians,
480
U.
S.
202,
216
and
n.
18
(
1987);
see
also
HRI
v.
EPA,
198
F.
3d
1224,
1242
(
10th
Cir.
2000),
Montana
v.
EPA,
137
F.
3d
1135
(
9th
Cir.
1998),
cert.
denied
525
U.
S.
921
(
1998);
see
also
discussion
in
EPA's
final
rule
for
the
Federal
operating
permits
program,
64
FR
8251
­
8255
(
February
19,
1999).
Furthermore,
EPA
interprets
the
CAA
as
favoring
unitary
management
of
reservation
air
resources
and
as
a
delegation
of
Federal
authority
to
eligible
Tribes
to
implement
the
CAA
over
all
sources
within
reservations,
including
non­
Indian
sources
on
fee
lands.
Accordingly,
even
if
a
State
could
demonstrate
authority
over
non­
Indian
sources
on
fee
lands,
EPA
believes
that
the
CAA
generally
provides
the
Agency
the
discretion
to
Federally
implement
the
CAA
over
all
reservation
sources
in
order
to
ensure
an
efficient
and
effective
transition
to
Tribal
CAA
programs
and
to
avoid
the
administratively
undesirable
checkerboarding
of
reservation
air
quality
management
based
on
land
ownership.
EPA
believes
that
Congress
intended
that
EPA
take
a
territorial
view
of
implementing
air
programs
within
reservations.
EPA
believes
that
air
quality
planning
for
a
checkerboarded
area
would
be
more
difficult
and
that
it
would
be
inefficient
if
a
State
were
to
exercise
regulation
8/
19/
04
20
over
piecemeal
tracts
of
land
within
a
reservation,
possibly
with
similar
reservation
sources
being
subject
to
different
substantive
requirements.
EPA's
approach
provides
for
coherent
and
consistent
environmental
regulation
within
reservations.
Therefore,
we
are
not
changing
the
applicability
of
the
rule
to
"
enrolled
Tribal
members
on
the
reservation"
or
to
"
Tribal
trust
properties
and
Tribal
members."
The
final
rules
apply
to
any
person
who
owns
or
operates
an
air
pollution
source
within
the
exterior
boundaries
of
an
Indian
reservation
in
Idaho,
Oregon,
or
Washington,
as
set
forth
in
40
CFR
part
49,
subpart
M.

EPA
disagrees
with
comments
that
the
State
has
authority
to
implement
the
CAA
within
reservation
boundaries.
When
promulgating
the
final
rule
for
how
EPA
will
issue
operating
permits
to
major
stationary
sources
in
Indian
country
pursuant
to
Title
V
of
the
CAA,
EPA
disagreed
with
similar
comments
that
some
States
may
have
authority
over
non­
Indian
activities
on
fee
lands
in
Indian
country.
EPA
wrote
"
in
the
context
of
regulating
air
pollution,
States
generally
will
not
have
jurisdiction
over
these
lands."
64
FR
8247,
8252
(
February
19,
1999).
When
reviewing
implementation
plans
and
other
air
programs
submitted
by
States
and
local
air
agencies
for
EPA
approval,
EPA
has
clearly
limited
the
programs
it
is
approving
as
not
extending
into
Indian
country
where
EPA
found
a
State
had
not
demonstrated
authority
over
Indian
country
sources.
See
Clean
Air
Act
Full
Approval
of
Operating
Permits
Program
in
Washington,
Direct
Final
Rule,
66
FR
16,
21
(
January
2,
2001);
Approval
and
Promulgation
of
Implementation
Plans;
Idaho,
Designation
of
Areas
for
Air
Quality
Planning
Purposes;
Idaho,
Final
Rule,
68
FR
2217,
2219
­
2220
(
January
16,
2003);
Approval
and
Promulgation
of
State
Implementation
Plans;
Washington,
Final
Rule,
63
FR
5270
(
February
2,
1998);
Clean
Air
Act
Approval
of
Revisions
to
Operating
Permits
Program
in
Oregon,
Direct
Final
Rule,
67
FR
39630
­
39632
(
June
10,
2002);
and
Approval
and
Promulgation
of
Implementation
Plans;
Oregon,
Direct
Final
Rule,
68
FR
2891,
2901
(
January
22,
2003).
Even
where
the
EPA
approval
did
not
expressly
address
Indian
country,
EPA
has
clarified
that
its
past
approvals
of
State
programs
as
not
extending
to
Indian
country
unless
EPA
has
explicitly
approved
the
State
program
in
such
area.
EPA
believes
that
when
exercising
its
authority
to
establish
implementation
plans
for
these
Indian
reservations,
it
is
consistent
with
the
CAA
to
cover
all
areas
and
sources
not
covered
by
approved
State
or
Tribal
programs.

EPA
also
disagrees
that
its
limited
approvals
of
State
programs
are
insufficient
to
support
Federal
jurisdiction
in
light
of
the
court's
opinion
in
State
of
Michigan
v.
EPA.
In
that
decision,
the
court
ruled
that
EPA
must
make
an
affirmative
decision
that
a
Title
V
source
is
located
in
Indian
country,
and
cannot
indefinitely
assume
regulation
of
the
facility
if
the
Agency
merely
believes
the
Indian
country
status
is
in
question.
The
court
noted
that
the
litigants
did
not
contest
EPA's
authority
to
implement
the
CAA
in
"
Indian
country",
which
is
defined
to
include
all
lands
within
the
exterior
boundaries
of
an
Indian
reservation.
Therefore,
the
commenters
have
misinterpreted
that
decision
as
applying
to
fee­
owned
lands
within
reservations
because
those
commenters
incorrectly
question
the
Indian
country
status
of
such
lands.
EPA's
position,
based
on
its
interpretation
of
the
CAA
and
consistent
with
Federal
Indian
law
and
the
decision
in
State
of
Michigan
v.
EPA,
is
that
all
lands
within
the
exterior
boundaries
of
an
Indian
reservation
are
Indian
country
subject
to
EPA's
authority
under
section
301
of
the
CAA.
1
In
the
preamble
to
the
final
TAR,
EPA
explained
that
it
believed
it
was
inappropriate
to
treat
Tribes
in
the
same
manner
as
States
with
respect
to
section
110(
c)
of
the
CAA,
that
directs
EPA
to
promulgate
a
FIP
within
two
years
after
EPA
finds
a
State
has
failed
to
submit
a
complete
State
plan
or
within
two
years
after
EPA
disapproval
of
a
State
plan.
Although
EPA
is
not
required
to
promulgate
a
FIP
within
the
two­
year
period
for
Tribes,
EPA
promulgated
40
CFR
49.11(
a)
to
clarify
that
EPA
will
continue
to
be
subject
to
the
basic
requirement
to
issue
any
necessary
or
appropriate
FIP
provisions
for
affected
Tribal
areas
within
a
reasonable
time.
See
63
FR
7264­
7265.

8/
19/
04
21
The
rules
established
by
EPA
here
are
in
effect
under
the
CAA.
EPA
recognizes
that
in
a
few
cases,
other
governmental
entities
may
have
established
air
quality
or
fire
safety
requirements
that
the
commenters
believe
apply
to
them
for
the
same
activity.
However,
unless
those
rules
or
requirements
have
been
approved
by
EPA
under
the
CAA
to
apply
on
Indian
reservations,
compliance
with
those
other
requirements
does
not
relieve
a
source
from
complying
with
the
applicable
FARR.

Although
EPA
does
not
recognize
State
or
local
air
regulations
as
being
effective
within
Indian
country
for
purposes
of
the
CAA,
absent
an
express
approval
by
EPA
of
those
regulations
for
an
area
of
Indian
country,
today's
rule
does
not
address
the
validity
of
State
and
local
law
and
regulations
with
respect
to
sources
in
Indian
country,
or
the
authority
of
State
and
local
agencies
to
regulate
such
sources,
for
purposes
other
than
the
CAA.
We
are
specifically
not
making
a
determination
that
these
Federal
CAA
rules
override
or
preempt
any
other
laws
that
have
been
established.
For
example,
in
the
area
of
open
burning,
EPA
recognizes
that
some
Federal,
State,
local,
and
Tribal
agencies
may
have
established
requirements
covering
topics
such
as
solid
waste
management
and
fire
safety
in
addition
to
air
quality
management.
The
general
open
burning
rule
at
§
49.131
specifically
provides
that
nothing
in
the
rule
exempts
or
excuses
any
person
from
complying
with
the
applicable
laws
and
ordinances
of
other
governmental
jurisdictions.

As
noted
elsewhere,
EPA
promulgated
the
TAR
on
February
12,
1998,
63
FR
7254.
The
primary
purpose
of
that
rule
was
to
establish
procedures
for
EPA
determinations
on
Tribal
eligibility
applications
for
"
treatment
in
the
same
manner
as
a
State"
(
commonly
referred
to
as
"
TAS")
under
CAA
authorities
for
Indian
reservations
and
for
non­
reservation
areas
within
a
Tribe's
jurisdiction.
In
the
preamble
to
the
proposed
and
final
TAR,
EPA
discussed
generally
the
legal
basis
under
the
CAA
by
which
EPA
and
Tribes
are
authorized
to
regulate
sources
of
air
pollution
in
Indian
country.
EPA
concluded
that
the
CAA
constitutes
a
statutory
delegation
of
Federal
authority
to
eligible
Indian
Tribes
over
all
sources
on
their
reservations.
63
FR
at
7254­
7259;
59
FR
at
43958­
43960.
The
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit
upheld
the
TAR
in
Arizona
Public
Service
Co.
v.
EPA,
211
F.
3d
1280
(
D.
C.
Cir.
2000),
cert.
denied
121
S.
Ct.
1600
(
2001).

EPA
also
concluded
that
the
CAA
authorizes
EPA
to
protect
air
quality
throughout
Indian
country,
including
on
fee
lands,
until
a
Tribe
is
approved
for
TAS
and
Tribal
programs
are
approved.
See
63
FR
7262;
59
FR
43960­
43961
(
citing
to
CAA
sections
101(
b)(
1),
301(
a),
and
301(
d));
see
also
Federal
Operating
Permits
Program,
Final
Rule,
64
FR
8251­
8254.
EPA
decided
that
in
areas
of
Indian
country
where
no
part
70
program
has
been
explicitly
approved
by
EPA,
a
gap
exists
in
air
quality
requirements
under
the
CAA
that
EPA
is
authorized
to
fill.
1
8/
19/
04
22
Therefore,
in
this
FARR
rulemaking,
EPA
is
exercising
its
authority
under
sections
301(
a)
and
301(
d)(
4)
of
the
CAA
and
40
CFR
49.11(
a)
to
promulgate
FIPs
in
order
to
remedy
an
existing
regulatory
gap
under
the
CAA
with
respect
to
Indian
reservations
located
in
Idaho,
Oregon,
and
Washington.

EPA
does
not
agree
with
the
commenters
who
believe
that
ownership
status
of
lands
within
an
Indian
reservation
determines
whether
Federal
law
or
State
law
applies.
The
CAA
at
section
110(
o)
specifically
states
that
an
implementation
plan
issued
under
the
authority
of
section
301(
d)
of
the
Act
"
shall
become
applicable
to
all
areas
(
except
as
expressly
provided
otherwise
in
the
plan)
located
within
the
exterior
boundaries
of
the
reservation,
notwithstanding
the
issuance
of
any
patent
and
including
rights­
of­
way
running
through
the
reservation."
42
U.
S.
C.
§
7410(
o).
This
CAA
provision
mirrors
the
definition
of
"
Indian
reservation"
included
in
the
definition
of
"
Indian
country"
at
18
U.
S.
C.
§
1151(
a).
The
final
rules
established
today
are
applicable
to
a
source
located
within
the
exterior
boundaries
of
the
specific
reservation
identified
in
the
FARR.
In
some
cases
determining
the
reservation
boundaries
may
involve
a
detailed,
case­
specific
analysis
as
part
of
an
EPA
applicability
determination.
However,
EPA
believes
that
the
vast
majority
of
sources
subject
to
these
rules
are
clearly
located
within
reservations,
and
it
will
be
clear
to
most
sources
that
they
are
subject
to
these
rules.

With
regard
to
section
116
of
the
CAA,
the
approach
finalized
today
does
not
conflict
with
section
116.
Section
116
provides
that
the
CAA
does
not
preclude
or
deny
the
right
of
any
State
to
adopt
or
enforce
any
standard
or
limitation
respecting
emissions
of
air
pollutants
or
any
requirement
respecting
control
or
abatement
of
air
pollution.
As
EPA
wrote
when
establishing
its
final
regulations
under
40
CFR
part
71,
"
Section
116
does
not
preclude
EPA
from
implementing
CAA
programs"
because
part
71
only
addresses
Federal
implementation
of
the
Act.
EPA
has
not
taken
a
position
on
whether
States
are
precluded
from
regulating
air
resources
in
Indian
country
solely
under
the
color
of
State
law
or
whether
the
reservation
of
rights
embodied
in
section
116
extends
to
any
area
of
Indian
country.
64
FR
8252.

G.
Tribal
Control
Over
Reservation
Lands
and
Non­
Indians
1.
Comment:
Many
of
the
comments
submitted
about
the
proposed
rules
were
concerned
that
EPA
was
authorizing
Tribal
governments
to
regulate
reservation
environments
and
the
activities
of
nonmembers
of
the
Tribe
on
privately­
owned
land
within
the
reservation.
Many
commenters
noted
that
the
majority
of
people
living
on
reservations
in
the
Pacific
Northwest
are
non­
Tribal
members.
The
commenters
believed
that
such
rules
would
be
unconstitutional,
noting
that
non­
Tribal
citizens
have
no
voice
or
representation
in
Tribal
government,
and
are
not
able
to
vote
in
Tribal
elections.
Commenters
also
were
concerned
that
Tribes
were
not
capable
of
successfully
administering
environmental
programs.

One
Tribe
commented
on
the
rights
of
Tribes
to
manage
air
quality
on
reservations.
The
commenter
stated
that
various
treaties,
executive
orders,
Federal
policies,
and
Federal
law,
8/
19/
04
23
especially
the
CAA,
provide
this
right
to
Tribes.
Another
Tribe
stated
that
basing
air
quality
regulation
on
the
status
of
the
property
owner
rather
than
on
an
airshed
basis
would
result
in
ineffective
management
because
air
pollutants
disperse
over
wide
areas.
The
Tribe
cited
several
court
cases,
such
as
Montana
v.
United
States,
that
allow
Tribal
jurisdiction
over
nonmembers
and
privately­
owned
land
in
some
circumstances.
The
Tribe
further
noted
that
the
CAA
authorizes
Tribes
approved
by
EPA
to
regulate
non­
Tribal
members
and
lands
for
air
quality
management
purposes.

Response:
These
rules
establish
Federal
CAA
requirements
to
be
enforced
by
EPA.
These
rules
do
not
authorize
Tribal
governments
to
regulate
reservation
residents
or
private
land
under
Tribal
law.

The
final
rule
at
§
49.122
authorizes
EPA
to
develop
an
agreement
for
partial
administrative
delegation
of
authority
to
a
Tribe
for
purposes
of
assisting
EPA
in
administering
one
or
more
of
the
Federal
rules.
However,
if
EPA
and
a
Tribe
develop
a
delegation
agreement,
the
role
of
the
Tribe
will
be
to
assist
EPA
in
implementing
the
Federal
requirement,
and
any
enforcement
of
the
FARR
will
be
by
EPA,
following
the
procedures
for
EPA
administrative
actions
or
for
civil
judicial
enforcement
in
the
U.
S.
District
Courts
or
the
appropriate
U.
S.
Circuit
Court
of
Appeals.
See
the
response
to
comments
in
section
I
on
§
49.122.

H.
Comments
that
Apply
to
More
Than
One
Rule
1.
Comment:
One
State
air
agency
commented
that
the
provisions
of
several
of
the
proposed
rules
(
§
§
49.124,
49.125,
49.128,
and
49.129)
that
only
mandate
certain
tests
if
the
tests
are
required
in
a
permit
is
not
consistent
with
the
CAA
and
Idaho
law.
The
commenter
then
pointed
out
that
EPA's
NSPS
are
requirements
that,
if
applicable,
are
required
whether
or
not
a
facility
has
a
permit.
The
commenter
asked
if
it
is
EPA's
intention
that
the
proposed
rules
take
the
place
of
NSPS
requirements
and
the
effect
if
a
requirement
under
NSPS
is
more
stringent.
The
commenter
then
pointed
to
§
49.128(
d)(
2)
as
a
specific
example
of
a
provision
that,
by
unnecessarily
limiting
the
ability
of
regulators
to
obtain
emission
information,
appears
to
be
inconsistent
with
the
CAA.

Response:
These
new
rules
are
in
addition
to
any
NSPS
that
would
also
apply
to
affected
facilities.
NSPS
promulgated
in
40
CFR
part
60
are
national
performance
standards
established
under
the
authority
of
section
111
of
the
Act
and
apply
to
new
and
modified
stationary
sources
in
specific
categories.
These
FIP
rules
are
area­
specific
emission
limitations
established
pursuant
to
sections
301
and
110
of
the
Act
and
apply
to
certain
emission
units,
both
new
and
existing,
at
wood
products
industry
and
other
sources.
Both
sets
of
rules
apply
and
some
emission
units
could
be
subject
to
both
regulations.
Finally,
EPA
disagrees
with
the
commenter
that
§
49.128(
d)(
2)
and
the
parallel
provisions
in
the
other
rules
(
§
49.124(
e)(
3),
§
49.125(
e)(
2),
§
49.127(
d)(
2)
,
and
§
49.129(
e)(
3))
would
limit
EPA's
authority
to
obtain
emission
information,
but
we
do
agree
that
they
are
unnecessary
and
possibly
confusing,
and
therefore
we
are
removing
8/
19/
04
24
them
from
the
final
rule.
The
intent
of
these
sections
was
to
clarify
that
the
FARR,
in
and
of
itself,
does
not
require
sources
to
conduct
a
source
test,
but
that
a
source
test
may
be
required
through
other
means
(
permit
to
construct,
permit
to
operate,
order
under
section
114,
etc),
however
it
is
unnecessary
to
include
this
language
in
the
rule.

2.
Comment:
Two
Tribes
commented
similarly
on
several
rules
(
§
§
49.124,
49.125,
49.127.
49.128,
49.129)
to
encourage
the
Regional
Administrator
in
implementing
the
rule
to
require
that
opacity
readings
or
source
tests
be
performed
at
regular
intervals
for
an
information
request
pursuant
to
section
114
of
the
Act,
a
permit
to
construct,
or
a
permit
to
operate.
The
Tribes
went
on
to
suggest
that
documentation
of
compliance
(
i.
e.
record
keeping
or
a
log
book)
should
be
required
in
instances
where
source
tests
are
required
to
demonstrate
a
facility
is
in
compliance
with
the
rule.

Response:
In
implementing
these
rules,
EPA
does
intend
to
require,
consistent
with
the
CAA
and
its
implementing
regulations
(
including
these
rules),
testing,
monitoring,
recordkeeping,
and
reporting
to
assure
compliance
with
the
air
quality
control
requirements
of
these
rules.

3.
Comment:
One
State
air
agency
commented
that
the
rules
for
visible
emissions
(
§
49.124)
and
the
rule
for
fugitive
particulate
matter
(
§
49.126)
should
be
revised
to
eliminate
the
exemptions
for
single
family
residences
or
residential
buildings
with
four
or
fewer
dwelling
units,
agricultural
activities,
and
public
roads
owned
or
maintained
by
any
Federal,
Tribal,
State,
or
local
government.
The
commenter
stated
that
these
potential
sources
of
fugitive
emissions
are
not
exempt
under
Idaho
law,
and
that
failure
to
reasonably
control
emissions
during
residential
construction,
poor
tilling
practices,
and
frequently
traveled
dusty
roads
can
all
contribute
to
poor
air
quality.
The
commenter
indicated
that
if
there
is
a
problem,
the
regulatory
agency
should
have
the
authority
to
seek
correction.
The
commenter
also
noted
that
the
Fort
Hall
Reservation
is
designated
nonattainment
for
PM10
which
may
indicate
a
need
for
additional
control
of
fugitive
emissions.
A
Tribe
also
suggested
that
agricultural
activities
and
public
roads
not
be
exempted
from
the
fugitive
emissions
rule.

Response:
After
careful
consideration
of
the
comments
that
the
visible
emission
limits
and
fugitive
particulate
matter
requirements
be
made
applicable
to
single­
family
residences
or
residential
buildings
with
four
or
fewer
dwelling
units,
agricultural
activities,
and
public
roads
owned
or
maintained
by
any
Federal,
Tribal,
State,
or
local
government,
EPA
has
decided
to
retain
these
exemptions.
We
recognize
that
some
of
these
source
categories
have
the
potential
to
be
areas
of
concern.
We
do
not
have
sufficient
information
at
this
time,
however,
to
determine
that
they
are
a
significant
problem
on
the
39
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
This
rulemaking
is
a
first
step
to
fill
the
regulatory
gap
on
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
As
we
have
noted
elsewhere,
in
the
future
we
may
promulgate
additional
rules
if
we
determine
that
additional
rules
are
necessary
or
appropriate.

Finally,
EPA
notes
that
sections
§
§
49.135
and
49.136
provide
regulatory
authority
to
address
specific
air
quality
problems
associated
with
any
air
pollution
source,
even
those
exempted
from
8/
19/
04
25
particular
emission
standards.
While
sources
such
as
single­
family
residences,
agricultural
activities,
and
public
roads
are
exempted
from
having
to
comply
with
the
generic
visible
emission
limitation
or
fugitive
dust
rule,
should
EPA
determine
that
further
controls
are
needed
pursuant
to
§
§
49.135
or
49.136,
EPA
may
establish
a
source­
specific
visible
emission
standard
or
fugitive
dust
control
measures
if
such
would
be
appropriate.
For
a
discussion
of
nonattainment
areas,
please
see
response
to
A.
12.

4.
Comment:
One
Tribe
suggested
adding
an
exemption
for
"
fires
for
heat
and
warmth
while
actively
participating
in
a
cultural
or
traditional
activity
and
for
the
non­
commercial
drying
of
fish
or
other
game
used
for
human
consumption"
to
several
rules
(
§
§
49.125,
49.126,
49.131,
49.132).

Response:
These
activities
are
already
excluded
in
each
of
these
rules.
We
are
not
changing
§
§
49.125
and
49.126,
since
they
contain
explicit
exemptions
for
non­
commercial
smokehouses
and
all
open
burning.
And
similarly,
we
are
not
changing
§
§
49.131
and
49.132
,
because
they
already
exempt
cultural,
traditional
and
recreational
fires
and
do
not
on
their
face
apply
to
noncommercial
smokehouses.
Non­
commercial
smokehouses
do
not
use
an
"
outdoor
fire"
and
are
therefore
not
covered
by
these
rules.
If
non­
commercial
fish
drying
uses
an
outdoor
fire,
that
activity
is
covered
by
the
exemption
for
fires
for
traditional
and
cultural
purposes.

5.
Comment:
One
State
agency
commented
that
proposed
§
§
49.131
and
49.132
refer
to
calling
a
burn
ban
when
the
National
Weather
Service
(
NWS)
issues
an
air
stagnation
advisory
or
when
the
Regional
Administrator
declares
an
air
pollution
alert,
warning,
or
emergency.
The
State
commented
that
in
practice
the
NWS
rarely
issues
such
warnings
and
that
EPA
does
not
have
the
staff
expertise
to
forecast
weather.
The
State
agency
offered
to
work
with
EPA
to
determine
when
weather
conditions
permit
open
burning.
Another
State
commented
that
they
understand
that
the
NWS
does
not
have
procedures
to
issue
air
stagnation
advisories
in
Idaho.
The
State
recommended
that
IDEQ,
EPA,
and
the
Tribes
work
with
the
NWS
to
get
procedures
in
place
for
such
services.

Response:
EPA
verified
that
some
NWS
offices
are
no
longer
issuing
air
stagnation
advisories.
EPA
is
revising
the
language
of
the
rule
for
emergency
episodes
to
put
the
responsibility
on
EPA
to
issue
air
stagnation
advisories
when
meteorological
conditions
so
warrant.
EPA
will
work
with
the
NWS
and
will
utilize
NWS
advisories
when
they
are
issued,
but
EPA
has
the
ultimate
responsibility
to
issue
the
advisories
contemplated
under
the
rule.
EPA
will
also
be
coordinating
closely
with
affected
Tribes
and
State
and
local
air
agencies
adjacent
to
reservations.

6.
Comment:
One
State
air
agency
requested
that
the
three
burning
permit
rules
(
§
§
49.132,
49.133,
and
49.134)
be
revised
to
require
that
a
copy
of
each
permit
be
provided
to
IDEQ.

Response:
EPA
is
not
adding
a
requirement
to
provide
copies
of
permits
to
another
agency
as
a
matter
of
law.
The
only
reservation
in
Idaho
where
the
three
burning
permit
rules
apply
is
the
Nez
Perce
Reservation.
EPA
will
work
with
the
State
agencies
under
an
inter­
governmental
8/
19/
04
26
agreement
to
manage
burning
permits
issued
to
sources
within
the
Nez
Perce
Reservation.

7.
Comment:
One
Tribe
objected
to
two
proposed
rules
(
§
§
49.131,
49.132)
and
argued
they
were
more
appropriately
a
matter
for
local
control
through
nuisance
provisions
rather
than
EPA
regulation
under
a
FIP.

Response:
EPA
does
not
agree
that
requirements
for
open
burning
are
only
a
matter
for
local
control
through
nuisance
provisions.
Open
burning
is
a
significant
source
of
air
pollutants
that
can
adversely
affect
air
quality
and
visibility
and
is
thus
appropriate
for
control
under
the
CAA.
Most
State
implementation
plans
include
rules
for
open
burning
and
in
some
cases,
such
rules
are
necessary
to
comply
with
CAA
requirements
and
EPA's
regulations
(
e.
g.,
nonattainment
area
requirements
for
reasonably
available
control
measures,
regional
haze
requirements).

I.
Section
49.122
Delegation
of
Authority
to
a
Tribe
1.
Comment:
A
number
of
commenters
were
concerned
that
the
proposed
rules
would
delegate
authority
to
Tribal
governments
to
regulate
the
activities
of
nonmembers
of
the
Tribe
on
privately­
owned
land
within
the
reservation.
The
commenters
believed
that
such
rules
would
be
unconstitutional,
noting
that
non­
Tribal
citizens
have
no
voice
or
representation
in
Tribal
government
and
are
not
able
to
vote
in
Tribal
elections.

Several
commenters
had
questions
about
how
the
delegation
process
is
different
from
the
process
for
a
Tribe
to
be
approved
for
TAS.
Several
Tribes
reminded
EPA
that
the
CAA
was
enacted
with
the
expectation
that
Tribal
governments
would
be
managing
air
quality
on
reservations.
The
commenters
asked
EPA
to
ensure
that
these
rules
and
the
delegation
provisions
do
not
diminish
the
rights
or
ability
of
Tribes
to
establish
requirements
under
Tribal
law,
such
as
to
charge
and
collect
fees
if
necessary
to
support
a
Tribal
air
program.
One
Tribe
asked
EPA
to
consider
whether
additional
procedures
for
delegation
to
Tribes
of
in
question
areas
are
required.

In
its
comments
on
the
proposed
delegation
provision
at
§
49.122,
one
State
air
agency
stated
that
it
supported
delegation
of
provisions
of
the
FARR
to
Tribes,
but
requested
that
the
State,
affected
stakeholders,
and
local
communities
be
given
an
opportunity
to
participate,
or
at
least
comment
on,
any
proposed
delegation
agreement.
Another
local
government
also
requested
an
opportunity
to
comment
on
proposed
delegation
agreements.
The
State
also
requested
that,
prior
to
delegation,
EPA
require
the
a
Tribe
to
demonstrate
that
they
have
sufficient
resources
to
ensure
that
the
terms
and
conditions
of
the
agreement
can
be
met.
The
State
also
asked
EPA
to
describe
the
specific
Federal
functions
that
EPA
contemplates
to
be
subject
to
delegation
under
the
proposed
regulation.
Finally,
the
State
asked
what
effect
a
delegation
agreement
with
the
Nez
Perce
Tribe
may
have
on
the
Clearwater
Airshed
Intergovernmental
Group.

Response:
The
rule
EPA
is
finalizing
at
§
49.122
authorizes
a
partial
delegation
of
administrative
authority
to
a
Tribal
government
for
the
purpose
of
assisting
EPA
in
administering
one
or
more
of
8/
19/
04
27
the
Federal
rules
that
have
been
promulgated
for
a
Tribe's
reservation.
While
a
Tribe
may
be
delegated
administrative
authority
for
portions
of
the
FARR,
EPA
will
maintain
sole
authority
to
enforce
the
FARR.
Since
this
would
be
a
delegated
Federal
program,
any
Federal
requirement
administered
by
a
delegated
Tribe
would
be
subject
to
EPA
enforcement
and
EPA
appeal
procedures,
not
the
Tribe's,
under
Federal
law.
The
delegation
provision
allows
EPA
to
delegate
distinct
roles
for
assisting
EPA
and
severable
Federal
regulations
to
qualified
Tribes
for
implementation
and
administration,
without
requiring
a
Tribe
to
take
on
all
aspects
of
the
FARR.
This
provision
provides
EPA
additional
flexibility
for
implementing
these
rules
where
EPA
believes
delegation
is
appropriate.
Nothing
in
these
rules
requires
EPA
to
delegate
administrative
authorities
to
Tribes.
The
partial
delegation
would
authorize
a
Tribal
government
to
administer
specific
functions
of
the
FARR
rules,
with
Tribal
government
employees
acting
as
authorized
representatives
of
EPA.
EPA
and
the
delegated
Tribe
would,
as
appropriate,
establish
mechanisms
to
fund
the
work
by
Tribal
staff,
that
may
include
Federal
funding
assistance
through
cooperative
agreements
and
grants
and/
or
user
fees
and
charges
established
by
the
Tribe
to
fund
its
administrative
activities
on
behalf
of
EPA.
Under
a
delegation
agreement,
the
Tribe
would
be
authorized
to
administer
one
or
more
of
the
rules,
with
the
oversight
of
EPA
staff.
Any
challenges
to
an
action
would
be
handled
directly
by
EPA,
and
any
formal
appeals
or
enforcement
actions
would
proceed
under
EPA's
administrative
and
civil
judicial
procedures.

As
EPA
stated
in
the
proposed
rulemaking,
the
administrative
delegation
from
EPA
to
a
Tribe
to
implement
a
specific
Federal
air
rule
is
to
be
distinguished
from
EPA's
interpretation
that
the
CAA
is
a
delegation
of
Federal
authority
from
Congress
to
Tribes.
Based
on
the
authority
of
section
301
of
the
CAA,
EPA
promulgated
a
final
rule
entitled
"
Indian
Tribes:
Air
Quality
Planning
and
Management,''
on
February
12,
1998,
63
FR
7254.
The
rule,
generally
referred
to
as
the
TAR"
establishes
procedures
for
EPA
determinations
on
Tribal
eligibility
applications
for
TAS
under
CAA
authorities
for
Indian
reservations
and
for
non­
reservation
areas
within
a
Tribe's
jurisdiction.
It
is
EPA's
position
that
the
CAA
TAS
provision
constitutes
a
statutory
delegation
of
authority
to
eligible
Tribes
over
their
reservations.
Under
the
CAA,
Tribes
may
develop
air
programs
covering
their
reservations
and
non­
reservation
areas
within
their
jurisdiction
for
submission
to
EPA
for
approval
in
the
same
manner
as
States.
63
FR
at
7254­
7259;
59
FR
at
43958­
43960.
The
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit
upheld
the
TAR
in
Arizona
Public
Service
Co.
v.
EPA,
211
F.
3d
1280
(
D.
C.
Cir.
2000),
cert.
denied
121
S.
Ct.
1600
(
2001).
The
TAR
established
how
EPA
can
approve
Tribal
eligibility
applications
for
a
Tribe
to
operate
a
CAA
program
under
Tribal
law
using
a
modular
approach.
EPA
expects
that
many
Tribes
will
develop
their
own
air
quality
programs.
However,
Tribes
are
not
required
to
adopt
and
implement
all
CAA
programs
at
once.

The
approach
used
in
these
final
regulations
offers
Tribes
an
alternative
to
TAS.
The
approach
will
allow
Tribes
that
are
building
air
quality
programs
to
gain
experience
by
assisting
EPA
with
implementation
of
the
Federal
rules
before
they
decide
to
adopt
their
own
Tribal
rules.
EPA
recognizes
that
a
Tribe
may
choose
not
to
develop
a
Tribal
air
program
under
Tribal
law
for
approval
under
the
TAR,
but
may
still
want
to
assist
EPA
in
implementing
the
Federal
air
quality
requirements
for
its
reservation
and
to
build
its
capacity
in
managing
an
air
quality
program.
8/
19/
04
28
However,
EPA
stresses
that
establishing
a
delegation
agreement
to
assist
EPA
in
implementing
the
FARR
on
a
reservation
will
not
affect
a
Tribe's
eligibility
for
TAS.
EPA
anticipates
that
the
capability
and
experience
gained
through
assisting
EPA
will
help
Tribes
decide
whether
to
establish
their
own
CAA
programs
to
either
supplement
or
substitute
for
the
Federal
rules
for
that
particular
reservation.
In
response
to
the
comment
on
procedures
for
delegation
of
in
question
areas,
we
would
like
to
reiterate
that
the
FARR
only
applies
to
areas
within
the
boundaries
of
specifically
identified
Indian
reservations
as
those
boundaries
are
recognized
and
acknowledged
by
the
United
States.
Since
these
areas
are
not
"
in
question
areas,"
we
do
not
need
to
establish
procedures
for
delegation
of
in
question
areas.
EPA
is
revising
the
final
rule
to
eliminate
the
sentence
in
the
proposal
that
states,
"
The
Regional
Administrator
will
not
delegate
authority
to
a
Tribe
for
areas
for
which
EPA
believes
the
Indian
reservation
status
is
in
question"
as
it
is
unnecessary.

EPA
recognizes
that
a
number
of
the
commenters
believe
it
is
unconstitutional
for
a
Federal
law
to
subject
nonmembers
to
the
laws
of
an
Indian
Tribe.
As
noted
elsewhere,
however,
these
commenters
have
misunderstood
these
rules
because
the
FARR
consists
of
Federal
requirements,
to
be
enforced
by
the
Federal
government.
Still,
it
is
important
to
note
that
the
commenters'
concerns
have
been
addressed
by
the
courts
including,
as
noted
above,
in
relation
to
EPA's
interpretation
of
the
CAA
TAS
provision
as
a
Congressional
delegation
of
authority
to
Tribes
over
their
reservations
which
was
upheld
by
the
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit.
63
FR
7254,
February
12,
1998.

EPA
stresses
that
a
delegation
agreement
is
not
the
only
mechanism
by
which
a
Tribe
can
assist
EPA
in
implementing
one
or
more
of
the
rules.
EPA
may
choose
to
make
arrangements
with
Indian
Tribes
under
a
variety
of
Federal
assistance
authorities,
such
as
grants,
cooperative
agreements,
or
contracts,
where
the
work
to
be
accomplished
would
be
specified
in
the
financial
assistance
documents.

The
final
rule
at
§
49.122
retains
the
same
provision
as
proposed
by
EPA
to
delegate
to
a
Tribe
the
authority
to
help
EPA
implement
the
FARR
on
the
Tribe's
reservation.
EPA
has,
however,
made
several
revisions
in
the
final
rule
in
response
to
comments.
For
example,
the
title
of
the
rule
has
been
changed
to
read
"
Partial
Delegation
of
Administrative
Authority."
This
revised
title
is
designed
to
clarify
that
the
rule
authorizes
EPA
to
delegate
only
the
authority
to
administer,
but
not
to
enforce,
the
rules.
The
final
rule
at
§
49.122(
a)
explicitly
states
that
the
rules
covered
by
a
delegation
agreement
would
be
enforced
by
EPA,
as
appropriate.

In
response
to
requests
for
an
opportunity
to
participate
in
the
development
of
these
partial
delegation
agreements,
this
rule
includes
a
new
subsection,
§
49.122(
d)(
1),
that
provides
for
stakeholder
involvement
prior
to
completing
a
partial
delegation
agreement.
This
new
subsection
of
the
rule
provides
that
prior
to
completing
a
partial
delegation
agreement
under
the
rule,
EPA
will
consult
with
appropriate
governmental
entities
outside
of
the
specified
reservation,
and
with
city
and
county
governments
located
within
the
boundaries
of
the
specified
reservation.
EPA
has
defined
appropriate
governmental
entities
as
States,
Tribes,
and
other
Federal
entities
located
8/
19/
04
29
contiguous
to
the
Tribe
applying
for
eligibility.
See
generally,
56
FR
64876,
64884
(
December
12,
1991)
and
63
FR
7267
(
February
12,
1998).
EPA
does
not
believe
that
it
is
necessary
or
appropriate
to
require
additional
public
participation
procedures
for
establishing
a
partial
delegation
agreement
between
EPA
and
a
Tribe
because
it
will
be
limited
to
describing
how
a
Tribe
will
assist
EPA
in
administering
one
or
more
of
the
rules.
EPA
will
however,
publish
a
notice
in
the
Federal
Register
informing
the
public
of
any
partial
delegation
agreement
for
a
particular
Indian
reservation
and
will
indicate
such
delegation
in
the
implementation
plan
for
the
Indian
reservation.
EPA
will
also
publish
an
announcement
of
the
partial
delegation
agreement
in
local
newspapers.

EPA
agrees
that
it
will
delegate
authority
to
help
administer
these
rules
only
to
Tribes
capable
of
doing
the
work
properly.
The
final
rule
is
modified
to
expressly
require
a
Tribe
to
demonstrate
both
the
technical
capability
and
adequate
resources
to
administer
the
rule
under
a
partial
delegation
agreement.
The
FARR
at
§
49.122(
b)
describes
the
criteria
a
Tribe
must
meet
when
applying
for
partial
delegation,
including
that
the
Tribe
has
(
or
is
acquiring)
the
technical
capability
and
resources
to
carry
out
the
aspects
of
the
rules
and
provisions
for
which
delegation
is
requested.
As
already
noted,
EPA
has
no
obligation
to
delegate
administrative
authorities
to
Tribes,
and
we
will
do
so
only
where
the
Tribe
has
demonstrated
that
the
work
will
be
carried
out
properly.
EPA
also
expects
the
partial
delegation
agreements
will
include
provisions
to
regularly
review
performance
by
the
Tribe
and
identify
implementation
issues
that
could
be
addressed
by
modifying
the
delegation
agreement.

Consistent
with
the
proposal,
this
final
rule
does
not
list
the
rules
or
Federal
functions
that
may
be
delegated.
For
some
portions
of
the
FARR,
EPA
expects
to
initially
retain
responsibility
for
implementation
so
that
we
can
gain
experience
with
the
process
for
implementation
and
become
familiar
with
the
regulated
community.
For
example,
EPA
wants
to
gain
experience
with
implementing
the
rule
for
non­
Title
V
operating
permits
at
§
49.139
by
using
Federal
administrative
procedures.
A
number
of
rules
are
not
subject
to
delegation
because
they
are
selfimplementing
standards
that
are
to
be
met
by
the
regulated
community,
such
as
the
rules
at
§
49.124
(
Rule
for
limiting
visible
emissions),
§
49.125
(
Rule
for
limiting
the
emissions
of
particulate
matter),
§
49.126
(
Rule
for
limiting
fugitive
particulate
matter
emissions),
§
49.127
(
Rule
for
woodwaste
burners),
§
49.128
(
Rule
for
limiting
particulate
matter
emissions
from
wood
products
industry
sources),
and
§
49.129
(
Rule
for
limiting
emissions
of
sulfur
dioxide).
On
the
Nez
Perce
and
Umatilla
Indian
Reservations,
where
EPA
is
promulgating
burning
permit
programs,
EPA
expects
to
establish
delegation
agreements
with
the
Tribes
to
provide
local
handling
of
permitting
and
implementation
needs.
Currently,
EPA
and
the
Nez
Perce
Tribe
have
established
an
intergovernmental
agreement
with
the
ISDA
and
the
IDEQ
that
provides
for
a
coordinated
management
of
agricultural
burning
activities
in
the
Clearwater
Airshed;
if
necessary,
the
agreement
will
be
modified
to
reflect
the
role
of
these
rules.

Tribal
governments
will
be
able
to
provide
a
variety
of
expertise
to
assist
EPA
in
implementing
these
rules.
For
example,
EPA
anticipates
arrangements
for
administering
open
burning
rules
may
include
coordination
with
local
fire
marshals
and
fire
safety
officials.
The
specific
provisions
of
8/
19/
04
30
each
delegation
agreement
will
be
tailored,
as
appropriate,
in
light
of
each
Tribal
government's
operations,
the
location
of
the
reservation,
or
other
relevant
factors.

2.
Comment:
One
Tribe
asked
EPA
to
clarify
Tribes'
and
EPA's
enforcement
responsibilities
under
a
TIP
versus
a
delegation
of
these
rules.

Response:
A
TIP
includes
requirements
established
under
Tribal
laws
by
a
Tribe
that
EPA
has
found
eligible
for
TAS
and
that
have
been
approved
by
EPA.
Consistent
with
the
TAR
and
other
applicable
CAA
requirements,
an
EPA­
approved
TIP
can
be
enforced
by
the
Tribe,
is
Federally
enforceable
by
EPA,
and
can
be
enforced
through
a
citizen
suit
as
authorized
by
section
304
of
the
CAA.
The
FARR
is
not
a
TIP;
rather
it
establishes
Federal
requirements
that
can
be
enforced
directly
by
EPA
under
section
113
of
the
CAA,
and
can
be
enforced
through
a
citizen
suit
as
authorized
by
section
304
of
the
CAA.
The
FARR
cannot
be
enforced
directly
by
Tribes
in
Tribal
court,
but
may
be
enforced
by
a
Tribe
through
the
citizen
suit
provisions
of
the
CAA.
A
delegation
of
administrative
authority
to
a
Tribe
would
not
authorize
a
Tribe
to
enforce
the
FARR,
which
will
continue
to
be
a
Federal
responsibility.

J.
Section
49.123
General
Provisions
1.
Comment:
One
industry
association
and
two
companies
commented
that
EPA
is
establishing
new
definitions
for
existing
regulatory
terms
that
are
already
defined
in
the
CAA
and
EPA's
regulations.
The
commenters
gave
as
examples
the
proposed
definitions
of
the
terms
"
actual
emissions,"
"
air
pollutant,"
and
"
Federally
enforceable."
The
commenters
believed
that
EPA
had
not
provided
any
basis
to
establish
different
meanings
for
these
terms
for
sources
on
Indian
reservations.
The
commenter
urged
EPA
to
adopt
existing
definitions
for
terms
used
in
these
rules.

Response:
These
FIPs
are
Federal
rules
that
apply
uniquely
to
39
reservations
in
Idaho,
Oregon,
and
Washington,
and
are
unlike
any
other
Federal
air
quality
rules
promulgated
by
EPA.
The
rules
apply
specific
regulatory
requirements
to
specific
categories
of
sources
and
as
such,
unique
definitions
are
often
necessary.
Where
a
term
is
already
defined
in
other
EPA
regulations,
and
that
definition
is
appropriate
for
use
in
these
rules,
then
the
FARR
includes
that
definition.
However,
where
the
existing
definition
is
not
appropriate,
a
new
definition
of
that
term
is
included
in
these
rules.
The
rationales
for
the
three
terms
specifically
identified
by
the
commenter
are
as
follows:

a.
"
Actual
emissions."
The
commenter
is
correct
that
EPA
defines
the
term
"
actual
emissions"
in
other
EPA
regulations.
For
example,
the
term
is
defined
specifically
for
purposes
of
determining
the
applicability
of
the
PSD
permitting
program
at
40
CFR
52.21(
b)(
21).
The
term
is
also
defined
for
the
purposes
of
part
71
permit
fees
in
40
CFR
71.9(
c)(
6).
These
two
definitions
are
fundamentally
different.
The
term
"
actual
emissions"
is
used
in
the
FARR
for
the
purpose
of
estimating
and
reporting
the
emissions
actually
emitted
during
a
calendar
year
as
part
of
the
8/
19/
04
31
requirements
of
the
registration
rule.
As
such,
a
definition
of
the
term
is
needed
for
these
regulations.
The
definition
used
in
the
major
source
permitting
programs
is
inappropriate
to
use
in
the
FARR
for
several
reasons,
e.
g.,
since
it
is
based
on
a
two­
year
average,
we
would
not
get
the
information
that
we
need
for
registration
and
emission
inventory
purposes.
The
definition
in
the
part
71
permit
fee
provisions
is
similar
to
what
EPA
proposed
in
the
FARR.
In
order
to
help
minimize
inconsistencies
between
EPA
terms,
EPA
will
retain
a
definition
of
actual
emissions
in
these
rules,
but
will
revise
it
slightly
to
make
it
more
consistent
with
the
definition
in
40
CFR
part
71.

b.
"
Air
pollutant."
In
the
case
of
the
term
"
air
pollutant,"
the
definition
that
EPA
proposed
to
include
in
these
regulations
is
identical
to
the
definition
in
the
CAA
itself
at
section
302(
g).
Since
EPA
was
proposing
to
apply
certain
of
the
regulations
to
sources
of
any
air
pollutant
as
defined
by
Congress
in
the
Act,
EPA
felt
that
it
was
appropriate
to
include
the
statutory
definition
within
these
regulations.
EPA
is
including
the
definition
of
the
term
"
air
pollutant"
in
the
final
regulations
as
proposed.

c.
"
Federally
enforceable."
EPA
proposed
a
definition
of
Federally
enforceable
that
was
similar
to,
but
not
identical
to,
the
definition
included
in
40
CFR
Parts
51
and
52.
EPA
did
not
intend
the
proposed
definition
to
have
any
different
effect
than
the
existing
definition,
and
still
does
not
believe
that
the
two
definitions
are
substantially
different.
However,
to
prevent
any
future
confusion
as
to
the
meaning
of
the
term,
EPA
is
revising
the
definition
in
the
final
regulations
so
that
it
more
closely
follows
the
definition
already
promulgated
in
other
EPA
regulations
for
implementation
plans.
However,
EPA
is
not
including
the
examples
of
limitations
that
are
Federally
enforceable
because
the
list
is
incomplete
(
it
doesn't
include
any
of
the
new
limitations
established
pursuant
to
the
1990
CAA
Amendments).

2.
Comment:
Four
industry
associations
and
two
companies
commented
that
the
definitions
of
"
air
pollution
source"
and
"
process
source"
are
overly
broad
and
cannot
be
effectively
interpreted.
The
commenters
stated
that
these
broad,
general
definitions
were
sufficiently
vague
so
that
they
could
be
interpreted
multiple
ways.
As
written,
the
terms
could
be
interpreted
to
include
a
whole
facility,
which
would
create
a
conflicting
definition
for
"
stationary
source."
The
commenters
asserted
that
EPA
did
not
provide
a
clear
basis
for
these
definitions.

Five
industry
associations
and
one
company
commented
that
the
definition
of
"
air
pollution
source"
is
overly
broad
and
should
be
stricken
and
that
there
does
not
appear
to
be
any
regulatory
basis
for
this
definition.
The
commenters
asserted
that
"
sources"
under
the
CAA
and
its
implementing
regulations
are
generally
either
"
stationary
sources,"
"
mobile
sources,"
or
"
fugitive
sources."
The
commenters
asserted
that
the
definition
of
"
air
pollution
source"
as
it
is
used
in
some
of
these
rules
would
establish
restrictions
on
activities
such
as
open
burning,
agricultural
activities,
agricultural
burning,
forestry
and
silvicultural
activities
and
forestry
or
silvicultural
burning
when
those
rules
are
clearly
intended
to
apply
to
stationary
sources
of
air
emissions.
One
commenter
noted
that
the
definition
would
also
include
fugitive
dust
from
construction
or
demolition
activities
that
may
be
temporary
or
transient
in
nature.
As
an
alternative
to
the
8/
19/
04
32
recommendation
to
strike
the
definition,
the
commenters
urged
that
the
rules
that
prescribe
limitations
on
emissions
from
air
pollution
sources
include
express
exemptions
for
open
burning,
agricultural
activities,
agricultural
burning,
forestry
and
silvicultural
activities
and
forestry
or
silvicultural
burning.

Response:
EPA
does
not
currently
have
a
definition
of
"
air
pollution
source"
within
its
existing
regulations.
EPA
has
definitions
for
the
terms
"
stationary
source,"
"
point
source,"
"
area
source,"
and
"
mobile
source,"
but
no
single
term
that
encompasses
any
and
all
sources
of
air
pollution.
Since
several
of
the
regulations
are
intended
to
apply
to
all
types
of
sources,
the
single
term
"
air
pollution
source"
was
proposed.
Without
a
definition
of
this
term,
the
applicability
of
many
of
the
rules
would
be
open
to
interpretation.
Therefore,
EPA
is
including
the
definition
of
the
term
"
air
pollution
source"
in
the
final
regulations
as
proposed.
However,
EPA
is
including
exemptions
for
activities
such
as
open
burning,
agricultural
activities,
etc.
in
individual
rules
where
such
exemptions
are
appropriate.

EPA
proposed
to
define
the
term
"
process
source"
as
"
an
air
pollution
source
using
a
procedure
or
combination
of
procedures,
for
the
purpose
of
causing
a
change
in
material
by
either
chemical
or
physical
means,
excluding
combustion."
EPA
intends
the
definition
of
"
process
source"
to
be
broad
and
to
include
almost
all
industrial
type
sources
except
combustion
sources.
EPA
is
finalizing
this
definition
as
proposed.

3.
Comment:
Two
industry
associations
noted
that
the
rules
included
a
proposed
definition
of
"
forestry
and
silvicultural
burning"
but
did
not
include
a
definition
of
"
forestry
or
silvicultural
activity"
which
was
used
in
several
places
in
the
rules.
The
commenter
urged
that
a
definition
be
included
and
provided
a
suggested
definition
for
EPA's
consideration.

Response:
EPA
is
adding
a
definition
of
"
forestry
or
silvicultural
activities"
to
the
final
rule
to
clarify
the
activities
that
will
require
a
permit
to
burn.
Forestry
or
silvicultural
activities
mean
"
those
activities
associated
with
regeneration,
growing,
and
harvesting
of
trees
and
timber
including,
but
not
limited
to,
preparing
sites
from
new
stands
of
trees
to
be
either
planted
or
allowed
to
regenerate
through
natural
means,
road
construction
and
road
maintenance,
fertilization,
logging
operations,
and
forest
management
techniques
employed
to
enhance
the
growth
of
stands
of
trees
or
timber."

4.
Comment:
One
Tribe
asked
EPA
to
expand
the
definition
of
"
fugitive
dust"
to
include
"
shoreline
areas
exposed
as
a
result
of
drawdowns
or
other
operations
of
reservoirs
and
water
projects."

Response:
EPA
proposed
to
define
fugitive
dust
as
"
particulate
matter
emissions
made
airborne
by
forces
of
wind,
mechanical
disturbance
of
surfaces,
or
both."
Unpaved
roads,
construction
sites
and
tilled
land
are
examples
of
sources
of
fugitive
dust.
The
proposed
definition
is
adequately
broad
to
cover
dust
conditions
caused
by
drawdowns
on
reservoirs
and
water
projects.
Therefore
EPA
is
retaining
the
definition
as
proposed.
Please
see
response
to
comments
below
in
8/
19/
04
33
M.
4
(
§
49.126)
for
how
fugitive
dust
from
shorelines
exposed
as
a
result
of
dam
operations
will
be
addressed.

5.
Comment:
Five
industry
associations
commented
that
the
proposed
definition
of
"
fugitive
particulate
matter"
is
overly
broad
and
would
include
particulates
from
open
burning,
agricultural
burning
and
forestry
or
silvicultural
burning
and
indicated
that
the
definition
should
be
changed
to
exclude
such
emissions
from
within
the
scope
of
the
definition.

Response:
The
term
"
fugitive
particulate
matter"
was
defined
in
the
proposal
as
"
particulate
matter
emissions
that
do
not
pass
through
a
stack,
chimney,
vent,
or
other
functionally
equivalent
opening,
including
fugitive
dust."
EPA
intended
for
this
definition
to
include
all
fugitive
particulate
matter,
including
that
from
open
burning
or
silvicultural
activities.
Rather
than
exempting
emissions
from
such
activities
in
this
definition,
EPA
will
decide
whether
to
exempt
these
emissions
when
it
establishes
emission
limitations
for
fugitive
particulate
matter.
Note
that
§
49.126,
Rule
for
Limiting
Fugitive
Particulate
Matter
Emissions,
exempts
open
burning,
agricultural
burning,
and
forestry
or
silvicultural
burning.

6.
Comment:
One
State
air
agency
requested
that
the
definition
of
"
fugitive
emissions"
be
changed
to
match
Idaho's
definition
of
"
fugitive
emissions"
which
mirrors
EPA's
definition
of
"
fugitive
emissions"
in
40
CFR
51.21(
b)(
20)
(
EPA's
regulations
for
PSD
permits).

Response:
EPA
did
not
propose
a
definition
of
the
term
"
fugitive
emissions"
but
did
propose
a
definition
of
the
term
"
fugitive
particulate
matter."
EPA
defines
the
term
"
fugitive
emissions"
in
the
major
source
permitting
programs
for
the
purpose
of
determining
when
fugitive
emissions
must
be
included
in
calculating
a
source's
potential
to
emit.
Emissions
that
could
reasonably
pass
through
a
stack,
vent,
or
functionally
equivalent
opening
are
not
considered
to
be
fugitive
and
must
be
included
in
calculating
potential
to
emit
even
if
in
reality
they
are
not
passing
through
a
stack.
The
inclusion
of
the
phrase
"
could
reasonably"
is
to
ensure
that
sources
do
not
deliberately
allow
emissions
to
escape
as
fugitives
and
thereby
reduce
the
potential
to
emit
of
the
facility
as
a
whole.
However
in
these
rules,
EPA
has
a
definition
of
the
term
"
fugitive
particulate
matter"
for
the
purpose
of
applying
the
requirements
of
§
49.126
Rule
for
limiting
fugitive
particulate
matter
emissions
to
a
specific
class
of
emission
sources
­
those
that
do
not
actually
pass
through
a
stack,
vent,
or
other
functionally
equivalent
opening.
Adding
the
phrase
"
could
reasonably"
would
in
effect
allow
some
emissions
to
be
exempt
from
the
requirements
of
the
fugitive
particulate
matter
rules
and
thereby
would
not
be
regulated
at
all
under
these
rules.
Since
these
two
terms
are
used
for
entirely
different
purposes,
there
is
no
need
for
them
to
be
identical.

7.
Comment:
One
industry
association
and
two
companies
commented
that
the
meaning
of
the
term
"
emission
factor"
is
incomprehensible
and,
as
a
result,
is
meaningless
and
cannot
be
effectively
interpreted.

Response:
EPA
agrees
that
the
proposed
definition
was
poorly
worded
and
has
revised
the
definition
to
make
it
more
understandable
in
the
final
regulations.
The
final
definition
is:
8/
19/
04
34
Emission
factor
means
an
estimate
of
the
amount
of
an
air
pollutant
that
is
released
into
the
atmosphere
as
the
result
of
an
activity,
in
terms
of
mass
of
emissions
per
unit
of
activity.

For
example,
an
emission
factor
for
a
fuel
burning
equipment
would
be
written
in
terms
of
"
pounds
of
sulfur
dioxide
emitted
per
gallon
of
fuel
burned."

8.
Comment:
One
Tribe
commented
that
the
following
terms
should
be
added
and
defined:
"
Smudge
pot,"
"
person,"
and
"
rangeland."
The
commenter
thought
that
without
a
definition
of
"
person",
one
might
misinterpret
who
is
required
to
comply
with
the
rules,
specifically
whether
Federal
agencies,
such
as
the
Bureau
of
Indian
Affairs
and
the
Indian
Health
Service,
would
be
required
to
comply
with
the
rules.

Response:
"
Smudge
pots"
are
listed
in
the
proposal
as
an
exemption
to
§
49.124,
which
limits
the
visible
emissions
of
air
pollutants
from
air
pollution
sources
operating
within
the
Indian
reservation.
EPA
is
modifying
the
rule
and
adding
this
definition
in
the
final
rule.
"
A
smudge
pot
is
a
portable
heater/
burner
that
produces
thick
heavy
smoke
and
is
placed
in
an
orchard
in
the
evening
to
prevent
the
crop
from
freezing
at
night."

The
purpose
of
the
open
burning
rule
is
to
limit
the
types
of
materials
that
can
be
open
burned
within
the
Indian
reservation
to
control
emissions
of
particulate
matter
and
other
noxious
fumes
of
the
atmosphere
and
ground­
level
concentration
of
PM10.
This
rule
does
not
deal
with
the
location
of
the
prohibited
uses.
The
term
"
rangeland"
is
not
referred
to
in
these
rules,
and
has
no
function
within
the
rule.
Therefore
EPA
is
not
defining
this
term
at
this
time.

The
term
"
person"
is
defined
in
the
CAA
itself
at
section
302(
e),
and
EPA
does
not
believe
that
adding
a
definition
of
this
term
to
these
regulations
is
necessary.
In
general,
EPA
has
included
definitions
of
terms
that
are
either
uniquely
defined
for
the
purposes
of
these
regulations,
or
that
EPA
felt
needed
to
be
included
in
order
to
clarify
the
applicability
or
requirements
of
these
regulations.
Therefore,
EPA
is
not
adding
a
definition
of
the
term
"
person"
to
the
final
regulations.
Note
that
the
definition
of
"
person"
in
the
CAA
includes
Federal
agencies.

9.
Comment:
One
industry
association
and
one
company
commented
that
the
requirement
in
§
49.123(
b)
to
install
a
continuous
opacity
monitoring
system
(
COMS)
or
a
continuous
emissions
monitoring
system
(
CEMS)
is
inappropriate
and
that
the
costs
of
such
systems
are
an
unwarranted
burden
on
business
operators.
The
commenters
stated
that
EPA
should
only
consider
this
requirement
in
the
absence
of
any
other
reasonable
compliance
demonstration
method.

Response:
This
rule
does
not
require
installation
of
a
COMS
or
CEMS
in
all
cases.
Rather,
it
simply
clarifies
that
EPA
may
require
a
COMS
or
CEMS
in
appropriate
cases,
which
is
an
authority
EPA
already
has
under
section
114
of
the
CAA.
EPA
agrees
that
other
reasonable
and
appropriate
methods
to
demonstrate
compliance
with
emission
limits
may
be
appropriate
for
certain
facilities,
but
COMS
or
CEMS
will
be
appropriate
for
others.
8/
19/
04
35
10.
Comment:
One
association
commented
that
ASTM
standards
have
been
revised
and
provided
the
most
recent
versions.

Response:
EPA
will
ensure
that
the
most
recent
versions
of
the
ASTM
standards
are
incorporated
by
reference
into
these
rules
when
they
are
promulgated
as
final
rules.

K.
Section
49.124
Rule
for
Limiting
Visible
Emissions
1.
Comment:
Five
industry
associations
and
one
company
commented
that
the
rule
for
limiting
visible
emissions
would
exempt
open
burning,
agricultural
activities,
fugitive
dust
from
public
roads,
and
emissions
from
mobile
sources,
but
did
not
expressly
exempt
agricultural
burning
and
forestry
or
silvicultural
burning.
One
commenter
noted
that
the
rule
would
also
apply
to
fugitive
dust
from
construction
or
demolition
activities.
The
commenters
requested
that
fugitive
dust,
agricultural
burning,
and
forestry
or
silvicultural
burning
be
specifically
exempted
and
that
forestry
and
silvicultural
activities
also
be
expressly
exempted.

Response:
EPA
proposed
to
exempt
all
open
burning
(
including
agricultural
burning
and
forestry
and
silvicultural
burning)
and
agricultural
activities
from
the
visible
emissions
standards.
However,
the
proposed
rules
did
not
specifically
exempt
forestry
and
silvicultural
activities,
nor
did
they
include
a
definition
of
that
term.
The
final
rule
clarifies
that
forestry
and
silvicultural
burning
activities
are
also
exempt
from
the
visible
emissions
rule,
and
EPA
is
adding
a
definition
of
the
term
"
forestry
or
silvicultural
activities"
to
the
rule.
Finally,
as
one
commenter
correctly
noted,
this
rule
applies
to
fugitive
dust
from
construction
or
demolition
activities,
as
well
as
fugitive
particulate
matter
emissions
from
any
other
source
not
specifically
exempted
from
the
rule.

2.
Comment:
One
Tribe
suggested
that
"
smudge
pots"
be
included
under
the
visible
emissions
rule.

Response:
The
final
rule
retains
the
proposed
exemption
from
the
opacity
standard
for
smudge
pots.
The
use
of
smudge
pots
is
a
common
practice
in
orchards
throughout
the
Pacific
Northwest.
Smudge
pots
protect
orchard
crops
from
damage
due
to
extreme
cold
by
generating
a
dense
layer
of
smoke
that
reduces
the
amount
of
radiative
cooling.
Since
the
purpose
of
the
smudge
pot
is
to
produce
black
smoke,
requiring
compliance
with
the
20%
opacity
limit
would
effectively
eliminate
this
practice.

3.
Comment:
One
industry
association
and
one
company
objected
to
the
requirement
that
boilers
must
be
equipped
with
a
COMS
in
order
to
utilize
the
alternative
opacity
limit
for
startup,
soot
blowing,
and
grate
cleaning,
stating
that
the
requirement
is
inappropriate
and
unfair
and
fails
to
consider
the
realities
of
operating
those
units.
The
commenters
noted
that
the
use
of
COMS
does
not
have
any
effect
on
lowering
emissions
and
it
is
unclear
why
operators
of
these
devices
would
be
permitted
greater
opacity
than
others.
The
commenters
requested
that
boiler
operators
8/
19/
04
36
without
COMS
also
be
allowed
to
exceed
the
20%
opacity
limit
during
startup,
soot
blowing,
and
grate
cleaning.

Response:
EPA
is
finalizing
the
proposed
requirement
that
oil
and
wood­
fired
boilers
must
install
and
operate
a
COMS
in
order
to
be
exempted
from
the
20%
opacity
standard
during
startup,
soot
blowing,
and
grate
cleaning.
Boilers
with
COMS
would
be
allowed
to
exceed
the
20%
limit,
but
only
for
a
single
period
of
up
to
15
minutes
in
any
8­
hour
period
and
could
not
exceed
60%
opacity
during
that
15
minute
period.
Since
this
exception
establishes
an
alternative
standard
that
does
not
rely
on
the
6­
minute
averaging
period
of
the
20%
opacity
limit,
Method
9
tests
cannot
be
used
to
determine
compliance.
As
such,
EPA
must
establish
a
compliance
methodology
for
this
60%,
15­
minute
standard,
and
EPA
has
found
that
COMS
are
the
appropriate
methodology.
EPA
is
unaware
of
any
other
compliance
methodology
that
would
be
appropriate
as
the
reference
test
method
for
this
standard.

L.
Section
49.125
Rule
for
Limiting
the
Emissions
of
Particulate
Matter
1.
Comment:
Four
industry
associations
commented
that
the
rule
for
particulate
matter
emissions
would
exempt
woodwaste
burners
and
furnaces
and
boilers
used
exclusively
for
space
heating
with
a
rated
heat
input
capacity
of
less
than
400,000
British
thermal
units
per
hour,
but
did
not
expressly
exempt
open
burning,
agricultural
burning,
and
forestry
or
silvicultural
burning.
The
commenters
did
note
that
the
definitions
of
combustion
source,
wood­
fired
boiler,
and
process
source
do
not
include
these
open
burning
activities,
but
requested
that
the
rule
be
clarified
by
expressly
exempting
these
types
of
open
burning.

Response:
EPA
agrees
that
this
rule
does
not
apply
to
open
burning
of
any
type,
including
agricultural
burning
and
forestry
or
silvicultural
burning.
EPA
is
revising
the
rule
to
specifically
exempt
open
burning.

2.
Comment:
Four
industry
associations
and
one
company
commented
again
that,
because
of
the
definition
of
the
term
"
process
source"
the
particulate
matter
emission
limit
could
be
applied
to
more
than
one
stack
or
even
to
a
whole
facility,
and
if
so,
compliance
with
the
emission
limit
would
often
be
impossible.
The
commenters
recommended
that
the
emission
limit
expressly
apply
to
individual
point
sources
of
emissions.

Response:
The
term
"
process
source"
was
defined
in
the
proposal
as
"
an
air
pollution
source
using
a
procedure
or
combination
of
procedures,
for
the
purpose
of
causing
a
change
in
material
by
either
chemical
or
physical
means,
excluding
combustion."
The
term
is
used
for
the
purpose
of
defining
the
applicability
of
this
rule,
and
as
such,
EPA
intends
the
definition
of
"
process
source"
to
be
broad
and
to
include
almost
all
industrial
type
sources
except
combustion
sources.
However,
the
term
is
not
meant
to
be
used
to
define
where
compliance
with
the
particulate
matter
emission
limitation
is
to
be
determined.
EPA
is
revising
the
final
rule
to
clarify
where
at
a
process
source
compliance
with
the
emission
limit
is
to
be
determined
(
i.
e.,
at
a
stack).
8/
19/
04
37
3.
Comment:
Four
industry
associations
commented
that
the
proposed
particulate
matter
emission
limit
of
0.1
grains
per
dry
standard
cubic
foot
for
process
sources
is
too
restrictive
for
older,
existing
process
sources,
such
as
existing
agricultural
product
processing
facilities.
The
commenters
maintained
that
the
0.1
grain
limit
on
existing
process
sources
would
place
such
sources
at
a
competitive
disadvantage
to
similar
sources
located
off
the
Coeur
d'Alene
and
other
Idaho
reservations.
The
commenters
recommended
that
the
section
differentiate
between
new
and
existing
process
sources,
by
establishing
a
standard
of
0.1
grains
for
new
process
sources
and
0.2
grains
for
existing
process
sources,
consistent
with
the
particulate
matter
emission
limitations
in
the
Idaho
rules.

Response:
EPA
disagrees
that
the
emission
limit
of
0.1
grains
per
dry
standard
cubic
foot
is
too
restrictive
for
older,
existing
process
sources.
This
emission
limit
is
similar
to
the
limit
in
many
other
State
and
local
jurisdictions.
EPA
also
believes
that
it
is
similar
in
stringency
to
the
Idaho
process
weight
based
standards
currently
in
the
EPA­
approved
Idaho
SIP.
Therefore,
EPA
is
finalizing
the
particulate
matter
emission
limit
for
process
sources
as
proposed.

4.
Comment:
One
Tribe
suggested
that
the
proposed
particulate
matter
emission
limit
from
a
wood­
fired
boiler
should
be
more
stringent
than
0.46
grams
per
dry
standard
cubic
meter
(
0.2
grains
per
dry
standard
cubic
foot).
The
Tribe
suggested
a
limit
of
0.02
grains
per
dry
standard
cubic
foot.

Response:
It
is
EPA's
understanding
that
the
Tribe's
suggested
limit
of
0.02
grains
per
dry
standard
cubic
foot
is
based
on
the
limit
in
a
PSD
permit
for
a
particular
wood­
fired
boiler.
EPA
agrees
that
new
wood­
fired
boilers
with
best
available
control
technology
can
achieve
much
lower
emission
rates,
such
as
0.02
grains
per
dry
standard
cubic
foot.
However,
as
discussed
in
the
preamble
to
these
rules,
the
purpose
of
the
emission
limits
established
herein
is
to
"
level
the
playing
field"
for
sources
that
currently
exist
within
the
39
reservations.
Nothing
in
these
rules
would
exempt
new
sources,
including
new
wood­
fired
boilers,
from
requirements
that
would
apply
to
them
as
new
sources
(
e.
g.,
NSPS,
PSD
permits).
EPA
is
therefore
finalizing
the
particulate
matter
emission
limit
for
wood­
fired
boilers
as
proposed.

M.
Section
49.126
Rule
for
Limiting
Fugitive
Particulate
Matter
Emissions
1.
Comment:
Five
industry
associations
commented
that
while
the
rule
for
fugitive
particulate
matter
emissions
exempted
agricultural
activities
and
fugitive
dust
from
public
roads,
it
should
not
apply
to
open
burning,
agricultural
burning,
forestry
or
silvicultural
activities,
and
forestry
or
silvicultural
burning
as
well.
The
commenters
recommended
that
the
rule
be
revised
to
expressly
exempt
open
burning,
agricultural
burning,
forestry
or
silvicultural
activities,
and
forestry
or
silvicultural
burning
from
the
rule.

Response:
Agricultural
activities
are
exempt
from
this
rule
and
"
open
burning"
is
added
as
an
exemption.
The
proposed
rules
did
not
expressly
exempt
all
forestry
and
silvicultural
activities,
8/
19/
04
38
nor
did
they
include
a
definition
of
that
term.
EPA
is
adding
a
definition
of
the
term
"
forestry
and
silvicultural
activities"
and
is
also
adding
an
exemption
for
those
activities
from
this
rule.

2.
Comment:
One
Tribe
suggested
listing
"
rock
crushing
and
sand
and
gravel
operations"
in
this
rule
to
clarify
the
rule
covered
these
activities.

Response:
Rock
crushing
and
sand
and
gravel
operations
are
covered
by
this
section,
and
EPA
does
not
believe
that
adding
clarification
is
necessary.
Fugitive
particulate
matter
means
particulate
matter
emissions
that
do
not
pass
through
a
stack,
chimney,
vent,
or
other
functionally
equivalent
opening.
Rock
crushing
and
sand
and
gravel
operations
by
their
very
nature
will
have
fugitive
emissions.
This
rules
applies
to
any
person
who
owns
or
operates
a
source
of
fugitive
particulate
emissions,
unless
otherwise
exempted.
Fugitive
particulate
matter
includes
fugitive
dust.

3.
Comment:
One
Tribe
suggested
adding
language
that
limits
the
applicability
of
this
rule
to
fugitive
emissions
that
fall
outside
the
property
or
are
in
violation
of
another
rule.

Response:
This
section
requires
that
a
source
take
all
reasonable
precautions
to
prevent
fugitive
particulate
emissions.
There
is
no
requirement
in
this
section
that
a
source
prevent
emissions
from
falling
outside
the
property.
Visual
observation
is
the
mechanism
of
determining
the
need
for
reasonable
precautions
and
documentation
of
control
actions
taken.
As
with
visible
emissions
from
a
stack
or
vent
from
a
traditional
industrial
source,
these
visible
emission
readings
are
taken
as
close
to
the
origin
of
source
of
emissions
as
practicable.
Therefore,
visual
observations
of
fugitive
emissions
should
occur
on
plant
property.
Failure
to
meet
visible
emission
limitations
indicates
reasonable
precautions
of
preventing
fugitive
emissions
are
not
being
implemented.
Therefore,
EPA
is
not
adding
the
suggested
language
to
limit
the
applicability
of
this
rule.

4.
Comment:
One
Tribe
requested
that
EPA
regulate,
under
section
49.126,
"
the
fugitive
emissions
generated
as
a
direct
and
indirect
consequence
of
the
Bureau
of
Reclamation
(
BoR)'
s
operation
of
the
Grand
Coulee
Dam
and
its
manipulation
of
the
Lake
Roosevelt
environment."
The
Tribe
stated
that
this
non­
traditional
source
of
fugitive
particulate
matter
currently
poses
an
unacceptable
threat
to
the
health
and
welfare
of
the
Reservation
population
and
the
quality
of
the
Reservation
environment.
The
Tribe
also
recommended
that,
because
of
the
toxic
nature
of
the
contaminated
sediments,
unique
criteria
specific
to
the
Lake
Roosevelt
area
should
be
developed
later
through
discussions
between
EPA
and
the
Tribe.

Response:
Although
the
rule
does
not
specifically
exempt
the
BoR's
operation
of
the
Grand
Coulee
Dam
or
the
owners
of
any
shorelines
or
lakebeds
exposed
as
a
result
of
the
reservoir
drawdown,
EPA
did
not
intend
for
this
rule
to
apply
to
such
sources
of
fugitive
dust,
nor
does
EPA
believe
that
State
and
local
fugitive
dust
rules
are
generally
interpreted
as
applying
to
windentrained
dust
from
shorelines
and
lakebeds
exposed
as
a
result
of
reservoir
drawdown.
Additionally,
as
the
Tribe
acknowledges,
the
nature
of
this
specific
situation
is
truly
unique
and
complex.
As
such,
we
do
not
believe
that
this
general
rule
is
the
appropriate
mechanism
to
8/
19/
04
39
control
this
non­
traditional
source
of
fugitive
emissions.
EPA
will
continue
to
work
with
the
Tribe
to
determine
if
a
separate
Clean
Air
Act
rulemaking
is
necessary
or
appropriate
to
address
the
air
quality
issues
at
Lake
Roosevelt.
It
is
important
to
note,
however,
that
fugitive
particulate
emissions
that
are
caused
by
human
activity
on
the
exposed
shorelines,
such
as
would
be
generated
by
cleanup
activities,
that
disturb
the
exposed
sediments,
is
covered
by
this
rule.

5.
Comment:
Four
industry
associations
and
one
company
commented
that
this
rule
would
impose
an
overly
burdensome
compliance
routine.
The
commenters
stated
that
rule
would
require
a
significant
amount
of
recordkeeping
that
is
not
clearly
warranted
for
all
facilities
covered
by
the
proposed
rule.
The
commenters
also
noted
that
the
requirement
to
conduct
a
weekly
survey
if
dry
or
dusty
materials
are
handled
is
overly
burdensome
for
some
manufacturers
because
not
all
dry
materials
cause
fugitive
dust.
One
commenter
suggested
alternative
language
for
the
survey
requirement.

Response:
EPA
agrees
with
the
comment
and
will
revise
the
rule
language
to
reduce
the
burden
to
covered
sources.
Specifically,
EPA
is
reducing
the
frequency
of
the
surveys
from
quarterly
to
annually
and
will
eliminate
the
requirement
to
perform
weekly
surveys.
However,
EPA
is
adding
a
provision
to
require
that
a
survey
be
done
within
30
days
after
a
new
source
or
new
operation
commences
operation.
This
applies
to
entirely
new
sites
and
to
new
sources
or
new
operations
located
at
existing
sites.
EPA
is
also
adding
a
requirement
that
the
written
dust
control
plan
for
construction
or
demolition
activities
be
prepared
prior
to
commencing
construction
or
demolition.
Because
of
the
short­
term
nature
of
many
construction
and
demolition
activities,
EPA
believes
that
it
is
more
appropriate
that
a
written
plan,
specifying
the
reasonable
precautions
to
be
followed,
be
prepared
before
commencing
construction
or
demolition
rather
than
within
30
days
after
commencing
construction
or
demolition.

The
effect
of
these
rule
changes
is
to
reduce
the
number
of
surveys
required
by
these
rules
and
the
number
of
times
the
written
plan
needs
to
be
reviewed
and
revised.
Sources
will
generally
only
need
to
do
one
survey
per
year
and
update
their
written
plan
as
necessary.
New
sources
and
sources
that
add
new
operations
that
could
emit
fugitive
dust
will
have
to
do
a
survey
and
update
their
written
plans
within
30
days
after
such
new
operations
have
commenced.
Construction
and
demolition
activities
will
no
longer
have
to
do
weekly
surveys,
but
will
prepare
their
plan
ahead
of
time
and
only
do
a
survey
if
the
work
lasts
for
more
than
30
days.

6.
Comment:
One
company
commented
that
the
provision
exhorting
owners
or
operators
to
consider
all
environmental
implications
of
any
particular
fugitive
dust
control
measure
is
vague
and
practically
unenforceable.
While
the
commenter
recognized
that
this
may
be
a
legitimate
policy,
it
is
suggested
that
the
sentiment
would
be
better
offered
in
the
preamble
to
this
rule.

Response:
EPA
agrees
with
the
commenter
and
is
removing
this
provision
from
the
final
rule.
As
the
commenter
suggested,
EPA
is
including
similar
language
in
the
preamble
to
the
final
rule.
EPA
also
plans
on
including
such
language
in
the
outreach
materials
for
implementing
this
rule.
8/
19/
04
40
N.
Section
49.127
Rule
for
Woodwaste
Burners
1.
Comment:
One
Tribe
suggested
that
the
phase
out
under
this
rule
be
shortened
to
one
year
with
no
extensions.
The
Tribe
also
suggested
adding
that
all
burners
be
dismantled
by
a
certain
date,
e.
g.
six
months
to
one
year
after
the
rule
goes
into
effect,
so
that
nonoperating
woodwaste
burners
would
not
be
able
to
have
one
startup
and
phaseout
over
a
two­
year
period
at
some
point
after
the
rule
is
in
effect.
The
Tribe
suggested
the
term
"
dismantled"
should
be
defined.

Response:
Most
woodwaste
burners
have
already
been
shut
down
under
State
and
local
air
agency
programs.
This
rule,
§
49.127,
phases
out
the
operation
of
woodwaste
burners
commonly
known
as
wigwam
or
teepee
burners
on
the
Nez
Perce
Reservation
and
the
Colville
Indian
Reservation.
In
the
interim,
this
rule
limits
the
visible
emissions
from
woodwaste
burners
operating
within
the
Indian
reservation
in
order
to
control
emissions
of
particulate
matter
to
the
atmosphere
and
ground­
level
concentrations
of
PM10.
The
owner
or
operator
is
required
to
submit
a
plan
for
shutting
down
the
woodwaste
burner
to
EPA
within
180
days
after
the
effective
date
of
these
rules
and
to
shut
down
and
dismantle
the
woodwaste
burner
no
later
than
two
years
after
the
effective
date
of
these
rules.
Sources
could
apply
to
EPA
for
an
extension
of
the
twoyear
deadline
if
there
is
no
reasonably
available
method
of
disposal
for
the
wood
waste.
Unless
an
extension
has
been
granted
by
the
Regional
Administrator,
the
woodwaste
burner
will
be
shut
down
and
dismantled
within
two
years
after
the
effective
date
of
this
rule.
This
section
is
promulgated
in
part
49
subpart
M
on
reservations
only
where
EPA
determined,
in
consultation
with
the
Tribe,
that
it
is
appropriate
to
establish
this
requirement
in
order
to
control
air
pollution.
Each
owner
or
operator
of
operating
and
nonoperating
units
must
submit
a
plan
for
closure
that
is
legally
enforceable.

EPA
is
clarifying
in
the
final
rule
that
this
rule
applies
to
both
operating
and
nonoperating
woodwaste
units.
This
clarification
addresses
the
concerns
of
a
commenter
that
nonoperating
burners
might
start
up
and
run
longer
than
other
units.
EPA
believes
that
the
common
definition
of
dismantle
is
sufficient
to
define
what
is
required
in
this
rule,
and
therefore
we
have
decided
not
to
include
a
definition
of
dismantle.

EPA
is
developing
an
implementation
plan
to
guide
how
EPA
and
affected
Tribes
will
implement
the
rule
in
each
reservation,
and
we
believe
the
compliance
time
to
shutdown
woodwaste
burners
should
not
be
reduced
to
less
than
two
years.
EPA
believes
the
two
years
compliance
time
for
shutdown
will
give
the
source
time
to
arrange
for
alternate
means
of
disposal
for
wood
wastes
with
a
minimal
burden.
The
two­
year
period
will
give
an
owner
or
operator
of
a
woodwaste
burner
who
might
be
using
the
unit
only
seasonally,
adequate
time
following
the
effective
date
of
this
rule
to
find
alternative
methods
for
waste
disposal.
The
20%
opacity
requirement
will
limit
emissions
until
burners
shut
down,
thus
protecting
air
quality
from
the
potential
for
significant
deterioration
caused
by
the
release
of
particulate
matter.

O.
Section
49.128
Rule
for
Limiting
Particulate
Matter
Emissions
from
Wood
Products
8/
19/
04
41
Industry
Sources
1.
Comment:
One
company
commented
that
the
reference
to
a
one­
hour
average
does
not
make
sense
and
should
be
deleted
because
the
emission
limit
is
based
on
pounds
per
thousand
square
feet
of
production,
not
on
time.

Response:
The
final
rule
retains
the
one­
hour
average
approach
that
EPA
proposed.
EPA
believes
emission
standards
should
include
a
period
over
which
compliance
is
to
be
determined.
Without
defining
a
compliance
period,
the
standard
would
be
unenforceable
as
a
practical
matter.
This
compliance
period
must
be
consistent
with
the
ability
of
the
compliance
test
method
to
obtain
a
valid
emissions
measurement.
In
the
case
of
this
standard,
Method
202,
in
conjunction
with
Method
201A,
is
the
compliance
method
and
a
one­
hour
averaging
period
is
consistent
with
the
results
of
these
methods.
In
essence,
the
one­
hour
averaging
period
requires
that
the
emissions
measured
during
the
source
test
and
the
amount
of
board
product
produced
during
the
test
runs,
be
normalized
to
a
one­
hour
period
for
comparison
to
the
numerical
standard.
This
is
no
different
than
requiring
the
results
of
an
emission
test
to
be
corrected
to
standard
conditions.
It
establishes
a
consistent
methodology
for
determining
compliance
with
the
numerical
emission
standard.

P.
Section
49.130
Rule
for
Limiting
Sulfur
in
Fuels
1.
Comment:
One
Tribe
suggested
changing
the
exemption
language
from
"
fuel
oils
used
exclusively
for
mobile
sources"
to
"
fuels
generally
sold
for
use
in
mobile
sources..."
because
the
end­
user's
application
is
beyond
the
control
of
a
station
owner
or
operator,
there
can
be
no
guarantee
of
a
fuel
being
used
exclusively
in
mobile
sources.

Response:
EPA
is
revising
the
wording
of
the
exemption
in
the
final
rule
to
better
clarify
that
gasoline
and
diesel
fuel,
such
as
automotive
and
marine
diesel,
regulated
under
40
CFR
part
80
is
completely
exempt
from
this
section.
This
means
that
the
sale,
distribution,
and
end
use
of
such
fuel
is
exempt
from
§
49.130.

2.
Comment:
One
industry
association
and
one
company
commented
that
wood
and
bark
should
be
exempted
from
the
sulfur
content
requirements
for
solid
fuel
because
the
sulfur
content
of
wood
is
very
low
 
typically
0.0
to
0.2
percent
by
weight,
which
is
far
below
the
2%
limit
specified
for
solid
fuels.
The
commenters
suggested
that
if
wood
is
not
completely
exempted
from
the
sulfur
content
rules,
then
it
should
be
exempted
from
the
testing
and
recordkeeping
provisions
which
would
represent
a
very
burdensome
requirement
that
would
have
no
environmental
benefit.

Response:
This
rule,
§
49.130,
applies
to
any
person
who
sells,
distributes,
uses
or
makes
available
for
use
any
fuel
oil,
coal,
solid
fuel,
liquid
fuel,
or
gaseous
fuel
within
the
Indian
reservation.
EPA
agrees
that
there
is
little
need
to
test
wood
and
wood
bark
for
sulfur
content.
However,
wood
is
often
burned
in
combination
with
other
fuels,
including
coal
and
oil.
Therefore,
EPA
is
not
exempting
wood
and
wood
bark
entirely
from
this
rule.
However,
the
final
8/
19/
04
42
rule
clarifies
that
if
only
wood
is
used,
then
no
testing
is
required,
and
the
source
must
keep
records
showing
that
only
wood
was
used.

Q.
Section
49.131
General
Rule
for
Open
Burning
1.
Comment:
All
but
one
commenter
on
the
open
burning
rule
at
§
49.131
recommended
that
EPA
limit
the
burning
of
household
wastes
in
burn
barrels.
Several
citizens
commented
that
the
proposed
rule
with
the
burn
barrel
exemption
was
too
lax.

Many
citizens,
Tribal
members,
and
State
and
local
agencies
were
opposed
to
the
exemption
for
burning
household
wastes
in
burn
barrels
based
on
the
health
impacts
of
residential
burning.
Of
greatest
concern
were
the
risks
for
people
with
increased
sensitivities,
such
as
people
with
asthma,
the
elderly,
and
especially
children.
Some
citizens
were
concerned
about
the
toxic
substances
emitted
from
open
burning
due
to
incomplete
combustion.

A
recent
study
by
EPA,
"
Evaluation
of
Emissions
from
the
Open
Burning
of
Household
Waste
in
Barrels"
by
Paul
M.
Lemieux,
was
cited
in
one
State
environmental
agency's
comment
letter.
The
study
reveals
that
emissions
from
open
burning
can
be
several
orders
of
magnitude
higher
than
controlled
combustion
from
a
municipal
solid
waste
incinerator.
The
State
also
noted
that
toxins
generated
by
burn
barrels
remain
in
the
immediate
vicinity
and
the
area
downwind
of
the
burn
barrel
for
decades.
This
accumulation
can
expose
families,
neighbors,
and
future
generations
living
on
the
same
land
to
ever­
increasing
levels
of
hazardous
substances.

Some
commenters
also
questioned
the
exemption
for
burning
in
burn
barrels,
since
such
use
is
already
prohibited
by
many
State
and
local
air
quality,
waste
disposal,
or
fire
safety
rules
or
requirements.

Citizens
and
Tribes
argued
against
allowing
burning
of
household
wastes
in
burn
barrels
where
garbage
collection
is
reasonably
available.
One
State
also
noted
that
many
reservations
have
recycling
and
garbage
collection
services.
Two
Tribes
suggested
adding
language
to
only
allow
residential
burning
where
no
other
means
of
disposal
is
readily
available,
such
as
a
reasonably
close
community
dumpster
or
waste
hauling
service.
One
Tribe
asked
that
paper
and
cardboard
burning
be
allowed
where
there
was
no
other
reasonable
means
available
for
recycling
or
disposing
of
solid
waste.

Response:
EPA
received
many
comments
with
compelling
information
about
the
threats
to
human
health
that
can
result
from
open
burning,
especially
from
burning
garbage
in
burn
barrels.
In
addition
to
the
numerous
comments
that
objected
to
allowing
the
burning
of
household
wastes
in
burn
barrels,
EPA
has
learned
of
many
efforts
to
stop
backyard
burning,
especially
in
residential
areas.
EPA's
Office
of
Solid
Waste
is
implementing
a
national
program
to
encourage
the
use
of
alternatives
to
open
burning,
and
the
State
of
Washington
is
attempting
to
eliminate
all
outdoor
burning.
8/
19/
04
43
Based
on
these
comments
and
new
information,
EPA
is
revising
the
final
open
burning
rule
to
eliminate
the
proposed
exemption
for
burning
combustible
household
wastes
in
burn
barrels
at
single
family
residences
or
residential
buildings
of
four
or
fewer
dwelling
units.
EPA
recognizes
that
the
use
of
burning
to
dispose
of
household
wastes
is
disfavored
by
a
wide
variety
of
government
agencies,
and
many
residents
of
reservations
spoke
out
against
this
practice.
Eliminating
the
exemption
for
burning
combustible
household
wastes
in
burn
barrels
meets
another
stated
objective
of
the
FARR,
which
is
to
level
the
playing
field
for
sources
inside
and
outside
reservation
boundaries,
as
discussed
in
more
detail
below.

The
proposed
exemption
allowed
the
burning
of
combustible
household
wastes
in
burn
barrels,
including
burning
garbage,
plastic
containers,
paper,
paper
products,
cardboard,
and
other
materials
resulting
from
general
residential
activities.
The
only
element
of
the
proposed
exemption
that
EPA
is
retaining
in
the
final
rule
is
to
allow
for
open
burning
on­
site
of
paper,
paper
products,
and
cardboard
that
are
generated
by
single­
family
residences
or
residential
buildings
with
four
or
fewer
dwelling
units.

EPA
proposed
to
allow
the
burning
of
household
wastes
in
burn
barrels
based
on
our
understanding
that
solid
waste
handling
alternatives
were
not
readily
available
to
all
persons
living
on
reservations.
It
was
EPA's
intention
not
to
create
undue
hardships
for
people
on
reservations
with
no
garbage
pickup
or
recycling
centers.
A
reservation
solid
waste
survey
conducted
in
1997
(
Reservation
Solid
Waste
Survey,
The
Northwest
Renewable
Resource
Center,
ed.
John
M.
Kliem)
indicated
that
two­
thirds
of
Tribal
governments
in
Idaho,
Oregon,
and
Washington
do
not
have
solid
waste
management
programs
and
many
reservations
do
not
have
garbage
pickup
service.
Further,
several
Tribes
confirmed
during
consultation
that
alternatives
to
residential
burning
were
not
readily
available
to
all
persons
on
their
reservations,
and
limiting
open
burning
would
be
difficult
to
enforce.
EPA
heard
from
commenters
however
that
many
reservations
have
access
to
garbage
collection
services,
although
we
have
insufficient
information
to
conclude
that
solid
waste
handling
alternatives
are
readily
available
on
all
reservations.
Therefore,
while
we
are
eliminating
the
exemption
for
burning
combustible
household
wastes
in
burn
barrels
due
to
the
health
effects
and
other
environmental
and
safety
concerns,
EPA
believes,
on
balance,
that
it
is
not
appropriate
to
completely
prohibit
the
outdoor
burning
of
paper,
paper
products,
and
cardboard
at
this
time.

Under
today's
final
rule
outdoor
burning
cannot
be
used
to
dispose
of
garbage,
plastics,
or
plastic
products,
including
plastic
containers
and
styrofoam.
It
should
be
noted
that
the
removal
of
the
proposed
exemption
for
burning
household
wastes
in
burn
barrels
does
not
mean
that
all
burning
in
burn
barrels
is
prohibited
by
this
rule.
Under
this
rule,
burn
barrels
may
be
used
to
dispose
of
materials
that
are
allowed
to
be
open
burned,
such
as
tree
trimmings,
yard
waste,
and
paper
generated
by
a
single­
family
residence.
EPA
emphasizes
that
open
burning
must
also
comply
with
the
fire
safety
codes
or
other
applicable
regulations
that
may
also
govern
outdoor
burning
and
the
use
of
burn
barrels.

As
discussed
in
the
proposal,
one
goal
of
the
FARR
is
to
level
the
playing
field
for
sources
inside
8/
19/
04
44
and
outside
reservation
boundaries.
Review
of
the
Federally­
approved
open
burning
rules
for
Idaho,
Oregon,
and
Washington
shows
that
all
three
States
prohibit
the
burning
of
garbage
and
plastics,
and
all
three
Federally­
approved
State
rules
allow
some
burning
of
paper
and
cardboard.
Additionally,
none
of
the
State
rules
completely
prohibits
the
use
of
burn
barrels.
Oregon's
rule
specifically
allows
the
limited
use
of
burn
barrels,
while
Idaho's
and
Washington's
rules
do
so
indirectly
by
allowing
limited
open
burning
and
not
excluding
burn
barrels
from
the
open
burning
definition.
Therefore,
EPA
believes
that
the
revisions
made
to
the
final
open
burning
rule
make
it
more
consistent
with
the
EPA­
approved
rules
of
the
surrounding
jurisdictions.

Through
outreach
and
education,
it
is
EPA's
goal
to
eliminate
open
burning
disposal
practices
where
alternative
methods
are
feasible
and
practicable,
to
encourage
the
development
of
alternative
disposal
methods,
to
emphasize
resource
recovery,
and
to
encourage
utilization
of
the
highest
and
best
practicable
burning
methods
to
minimize
emissions
where
other
disposal
practices
are
not
feasible.

EPA
strongly
supports
Tribes,
States,
and
other
entities
in
continuing
efforts
to
reduce
open
burning
in
their
jurisdictions
and
generally
encourages
alternate
methods
for
disposing
of
waste.
EPA
is
working
with
both
Tribes
and
States
to
enhance
the
awareness
of
the
health
concerns
of
open
burning,
facilitate
the
use
of
alternate
disposal
methods
through
outreach
and
recycling
programs
and
continue
efforts
already
underway
to
assist
Tribes
with
solid
waste
management
in
areas
where
alternatives
to
burning
are
inadequate.

EPA
also
wishes
to
emphasize
that
by
allowing
the
continued
use
of
limited
outdoor
burning,
we
are
not
encouraging
its
use.
We
recognize
that
solid
waste
handling
alternatives
are
readily
available
to
many
persons
on
reservations.
EPA
considered
revising
the
rule
to
only
allow
outdoor
burning
of
paper
and
cardboard
where
there
is
no
other
reasonable
means
available
for
recycling
or
disposing
of
solid
waste.
However,
EPA
did
not
include
this
approach
in
the
final
rule
because
it
would
be
difficult
at
this
time
to
establish
and
enforce
criteria
for
deciding
whether
another
means
of
disposal
was
available.

EPA
is
still
concerned
about
the
health
effects
of
even
limited
outdoor
burning.
Therefore,
we
intend
to
continue
to
evaluate
our
approach
as
we
gain
experience
implementing
the
rules
published
today,
and
consider
whether
outdoor
burning
should
be
further
limited
or
completely
banned
in
the
future.
We
are
interested
in
input
regarding
whether
we
should
consider
additional
separate
rulemaking
to
ban
all
outdoor
burning
on
reservations,
or
only
allow
limited
open
burning
where
garbage
pickup
or
recycling
is
not
reasonably
available.

As
EPA
puts
in
place
these
general
open
burning
regulations,
we
think
it
is
important
to
stress
the
authorities
that
we
now
have
to
protect
the
health
of
residents
from
improper
outdoor
burning.
Any
burning
allowed
by
this
final
rule
is
still
subject
to
other
provisions
in
the
FARR
rules,
such
as
the
provisions
to
curtail
all
open
burning
when
an
air
pollution
episode
is
declared
or
when
a
burn
ban
is
declared
in
accordance
with
§
49.131(
d)(
2).
EPA
is
also
issuing
rules
at
§
§
49.135
or
49.136
that
authorize
EPA
to
regulate
outdoor
fires
that
are
determined
to
cause
or
contribute
to
8/
19/
04
45
a
violation
of
any
NAAQS,
or
is,
or
would
likely
be,
injurious
to
human
health
or
welfare.
In
addition,
EPA
has
other
emergency
powers
under
section
303
of
the
CAA
to
restrain
activities
that
are
presenting
an
imminent
and
substantial
endangerment
to
human
health
and
the
environment.
Lastly,
EPA
emphasizes
that
the
FARR
does
not
override
the
fire
safety
codes
or
other
applicable
regulations
that
also
govern
outdoor
burning.

2.
Comment:
A
firefighter
commented
there
was
an
increased
risk
for
grass
and
wildland
fires
because
the
proposed
rules
promoted
the
use
of
burn
barrels.
One
State
environmental
agency
also
commented
that
burning
household
garbage
is
a
major
source
of
human­
caused
wildfires.
They
further
commented
that
wildfires
are
very
destructive
and
kill
people
and
livestock,
destroy
structures,
devastate
merchantable
timber
stands,
pollute
the
air,
and
cost
large
sums
of
money
to
control
and
extinguish.
The
State
also
mentioned
the
work
of
agencies
to
reduce
wildfire
damages
caused
by
escaped
disposal
fires
and
that
many
of
the
Tribes
in
the
Northwest
have
heavy
investments
in
their
own
timber
resources.
The
State
warned
that
legitimizing
garbage
burning
might
place
reservations
and
surrounding
vicinities
at
an
increased
risk
of
wildfire
compared
to
areas
where
garbage
burning
is
banned.

Response:
EPA
agrees
there
is
a
risk
of
grass
and
wildland
fires
from
escaped
debris
disposal
fires.
EPA
expects
that
the
final
rule
will
be
more
protective
by
removing
the
exemption
for
burning
combustible
household
wastes
in
burn
barrels
and
further
limiting
what
can
be
burned
at
residences
as
described
above.

3.
Comment:
One
commenter
suggested
that
the
issue
of
open
burning
should
not
be
a
matter
of
control
by
EPA
as
part
of
a
FIP,
and
that
open
burning
should
be
a
matter
for
local
control
where
it
does
not
cause
a
nuisance
or
impact
sensitive
populations.
Another
commenter
recognized
that
the
open
burning
provisions
were
not
as
strict
as
their
own
Tribal
Ordinance
but
supported
the
rules
as
a
backstop
of
Federal
Authority.

Response:
The
general
open
burning
rule
at
§
49.131
that
is
adopted
today
for
all
reservations
specifically
provides
that
nothing
in
the
rule
exempts
or
excuses
any
person
from
complying
with
the
applicable
laws
and
ordinances
of
other
governmental
jurisdictions.
EPA
emphasizes
that
this
rule
does
not
override
the
fire
safety
codes
or
other
applicable
regulations
that
also
govern
outdoor
burning.
For
instance,
a
Tribe
or
local
government
within
a
reservation
may
have
adopted
a
more
stringent
open
burning
rule.
The
Federal
rule
does
not
supersede
such
applicable
Tribal
or
locally­
adopted
laws
and
ordinances.
Section
49.131(
d)(
4)
emphasizes
this
point
by
specifically
clarifying
that
this
rule
does
not
exempt
or
excuse
persons
from
complying
with
other
applicable
laws
and
ordinances.

Also,
these
CAA
rules
are
the
first
building
block
to
address
the
most
prevalent
gaps
identified
to
date,
and
EPA
will
continue
to
evaluate
air
quality
conditions
and
sources
that
cause
or
contribute
to
degradation.
67
FR
11749.
Although
EPA's
rules
may
be
less
stringent
than
some
Tribal
Ordinances,
on
some
reservations
there
are
no
rules
in
place
at
all.
In
light
of
the
concern
of
putting
in
place
basic
rules
to
regulate
outdoor
burning,
EPA
believes
that,
on
balance,
public
8/
19/
04
46
health
interests
are
better
served
if
open
burning
rules
are
in
place
across
all
39
reservations
with
some
basic
restrictions,
than
if
no
open
burning
rules
are
in
place
at
all.

EPA
strongly
supports
Tribes,
States,
and
other
entities
in
continuing
efforts
to
reduce
open
burning
in
their
jurisdictions
and
generally
encourages
alternate
methods
for
disposing
of
waste.
EPA
is
working
with
both
Tribes
and
States
to
enhance
an
awareness
of
the
health
concerns
of
open
burning
and
facilitate
the
use
of
alternate
disposal
methods
through
outreach
and
recycling
programs.

4.
Comment:
One
commenter
suggested
EPA
add
additional
language
in
§
49.131(
e)
to
make
open
burning
safer,
such
as:
including
requirements
that
open
burning
should
be
conducted
in
daylight
hours
only;
a
visible
flame
must
be
present
while
burning;
a
person
with
equipment
capable
of
extinguishing
the
fire
or
preventing
fire
spread
must
attend
the
fire
at
all
times;
no
fires
shall
be
within
50
feet
of
any
structures
or
directly
under
power
lines;
and
adding
accelerators
such
as
diesel
fuel
or
gasoline
should
be
unlawful.

Response:
We
agree
with
the
commenter
that
these
are
good
practices
to
follow
to
make
open
burning
safer.
Because
these
provisions
relate
primarily
to
fire
safety,
however,
EPA
is
not
adding
these
provisions
in
the
final
rule.
However,
we
will
consider
adding
them
to
guidance
documents
and
educational
materials.
Also,
EPA
emphasizes
that
this
rule
does
not
override
the
fire
safety
codes
or
other
applicable
regulations
that
also
govern
outdoor
burning.

5.
Comment:
Commenters
wrote
that
calling
a
burn
ban
when
75%
of
any
NAAQS
has
been
exceeded
is
not
stringent
enough
to
protect
human
health
and
welfare.
One
Tribe
commented
that
with
respect
to
burn
bans,
the
NAAQS
are
not
sufficient
to
protect
human
health
and
welfare.
One
citizen
commented
that
the
EPA
burn
ban
levels
were
not
as
protective
as
in
other
parts
of
the
country,
and
worried
about
the
effect
on
people
who
are
sick,
the
elderly,
and
children.
One
local
government
commented
that
the
trigger
level
is
too
high.
One
State
agency
pointed
out
that
EPA's
rules
do
not
contain
a
"
one
hour"
trigger
level
for
PM10
and
PM2.5.
The
State
agency
also
asked
EPA
to
explain
the
technical
basis
upon
which
it
established
the
criteria,
"
that
air
quality
levels
have
exceeded,
or
are
expected
to
exceed,
75%
of
the
NAAQS
and
will
continue
to
exceed
that
level
for
at
least
the
next
24
hours,"
which
is
much
less
stringent
than
State
law.
The
State
agency
also
requested
that
trigger
levels
and
forecasts
should
be
coordinated
across
boundaries
to
the
extent
possible.

Response:
The
standards
EPA
is
employing
in
this
rule
to
make
air
quality
determinations
have
been
promulgated
by
EPA
under
the
authority
of
section
109
of
the
Act
and
are
in
effect
nationally.
EPA
did
not
propose
a
new,
one­
hour
standard
for
this
rulemaking,
and
we
are
not
adding
one
to
the
final
rule.
However,
in
implementing
this
rule,
EPA
expects
to
use
"
real
time"
one­
hour
data
along
with
meteorology
models
and
weather
forecasts
to
make
our
determination
whether
to
call
a
burn
ban.
EPA
will
work
closely
with
Tribal,
State
and
local
programs
in
implementing
this
rule
and
calling
burn
bans
across
various
parts
of
the
Region.
8/
19/
04
47
The
purpose
for
calling
a
burn
ban
is
to
prevent
particulate
matter
concentrations
from
exceeding
the
NAAQS.
The
averaging
period
for
short­
term
particulate
matter
NAAQS
(
both
PM10
and
PM2.5)
is
24­
hours.
In
order
for
a
burn
ban
to
successfully
prevent
a
NAAQS
violation
from
occurring,
the
ban
needs
to
be
called
before
levels
actually
reach
the
NAAQS.
Since
burns
could
already
be
underway
when
monitored
values
begin
to
approach
NAAQS
levels,
and
burns
cannot
be
extinguished
instantly
when
a
ban
is
declared,
EPA
needs
to
call
the
ban
when
monitored
levels
are
at,
or
are
predicted
to
be
at,
some
level
less
than
the
NAAQS.
For
the
purposes
of
this
rule,
EPA
has
decided
to
call
burn
bans
when
particulate
matter
levels
reach,
or
are
predicted
to
reach
75%
of
the
short
term
PM10
or
PM2.5
NAAQS,
and
such
levels
are
expected
continue
for
the
next
24
hours.
EPA
believes
that
initiating
the
ban
at
the
75%
level
will
provide
an
adequate
margin
of
safety
to
accommodate
emissions
from
burns
that
are
already
underway
and
whose
emissions
will
continue
to
contribute
to
particulate
matter
concentrations
for
a
while
after
the
ban
is
called.
EPA
also
believes
that
it
is
appropriate
to
consider
whether
high
particulate
matter
concentrations
would
be
expected
to
continue
over
the
next
24
hours
since
the
NAAQS
are
based
on
a
24­
hour
average.
If
concentrations
are
expected
to
decline
significantly,
for
example
as
a
result
of
weather
changes,
then
EPA
would
not
call
a
burn
ban
because
a
ban
would
not
be
needed
to
ensure
that
the
NAAQS
would
not
be
exceeded.

6.
Comment:
One
local
air
agency
suggested
removing
the
exemption
for
disposal
of
fireworks
and
associated
packaging
materials
(
in
one
open
outdoor
fire
each
year)
and
recommended
that
resources
be
put
into
establishing
alternatives
to
the
open
burning
of
fireworks.

Response:
EPA
has
considered
the
comment
to
remove
the
exemption
for
one
open
outdoor
fire
each
year
to
dispose
of
fireworks
and
associated
packaging
materials,
and
we
have
decided
not
to
change
the
rule.
We
recognize
that
this
practice
has
the
potential
to
be
an
area
of
concern,
but
we
are
also
aware
that
there
are
safety
issues
with
respect
to
the
handling,
storage,
and
disposal
of
unexploded
fireworks.
We
do
not
have
sufficient
information
at
this
time,
however,
to
determine
that
it
is
necessary
or
appropriate
to
completely
prohibit
this
practice
on
the
39
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
This
rulemaking
is
a
first
step
to
fill
the
regulatory
gap
on
Indian
reservations
in
Idaho,
Oregon,
and
Washington.
As
we
have
noted
elsewhere,
in
the
future
we
may
promulgate
additional
rules
or
rule
revisions
if
we
determine
that
they
are
necessary
or
appropriate.

EPA
strongly
supports
Tribes,
States,
and
other
entities
in
continuing
efforts
to
reduce
open
burning
in
their
jurisdictions
and
generally
encourages
alternate
methods
for
disposing
of
waste.
EPA
is
working
with
both
Tribes
and
States
to
enhance
an
awareness
of
the
health
concerns
of
open
burning
and
facilitate
the
use
of
alternate
disposal
methods
through
outreach
and
recycling
programs.

R.
Section
49.132
Rule
for
General
Open
Burning
Permits
1.
Comment:
One
industry
association
noted
that
while
the
proposed
rule
required
persons
to
8/
19/
04
48
submit
an
application
for
a
burn
permit
at
least
one
working
day,
and
no
earlier
than
five
working
days,
prior
to
the
burn,
there
is
no
provision
requiring
EPA
to
act
on
the
application
within
a
reasonable
amount
of
time.
The
commenter
recommended
that
the
section
be
revised
to
require
EPA
to
act
within
a
reasonable
amount
of
time.

Response:
EPA
has
considered
the
comment
to
revise
the
rule
to
require
EPA
to
act
within
a
reasonable
amount
of
time,
and
we
have
decided
not
to
change
the
rule.
We
believe
the
rule
as
written
reflects
our
intention
to
act
on
an
application
prior
to
the
requested
burn
date(
s)
if
it
meets
the
requirements
of
the
section.
Additional
details
for
the
permit
process
will
be
worked
out
through
implementation
guidance
and
the
development
of
delegation
agreements.

Also,
we
would
like
to
clarify
when
the
permittee
needs
to
submit
an
application
(
see
table
below).
The
rule
refers
to
one
and
five
working
days
prior
to
the
requested
burn
date.
We
intended
that
EPA
have
one
full
working
day
to
review
and
act
on
an
application.
For
example,
if
a
land
clearing
operation
wanted
to
begin
burning
on
a
Monday,
it
would
have
to
submit
its
application
to
EPA
no
later
than
5:
00
pm
Thursday
and
no
earlier
than
Monday
of
the
previous
week.
If
a
homeowner
wanted
to
burn
some
yard
waste
on
Saturday,
it
would
have
to
submit
its
application
no
later
than
5:
00
pm
Thursday
and
no
earlier
than
Monday
of
that
week.
An
application
submitted
at
closing
time
on
Friday
for
a
Saturday
planned
burn
would
not
allow
EPA
time
to
evaluate
and
issue
the
permit.
Applications
submitted
far
in
advance
of
a
planned
burn
could
not
be
approved
at
the
time
of
submittal,
because
EPA
would
not
have
knowledge
of
expected
air
quality
conditions
at
the
time
of
the
planned
burn.
8/
19/
04
49
FARR
Burn
Permit
Calendar
Burn
Permit
Applications
Accepted
Burn
Permit
Application
Due
by
5:
00
PM
Burn
Date
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
8/
19/
04
50
S.
Section
49.133
Rule
for
Agricultural
Burning
Permits
1.
Comment:
Two
industry
associations
recommended
that
the
open
burning
permit
requirements
under
§
49.132
Rule
for
general
open
burning
permits
be
expressly
exempt
from
this
section.

Response:
This
rule
only
applies
to
agricultural
burning.
Section
49.132
already
expressly
exempts
agricultural
burning
from
the
requirements
of
that
rule.
EPA
sees
no
need
to
add
a
provision
to
§
49.133
that
exempts
agricultural
burning
from
§
49.132,
a
rule
that
does
not
apply
to
agricultural
burning.
EPA
is
finalizing
the
rule
as
proposed.

2.
Comment:.
One
farmer
asked
that
if
any
smoke
management
plan
were
to
be
written
or
adopted
that
he
would
like
assurance
that
burning
would
not
be
halted
during
the
burning
season
for
non­
scientific
reasons.
The
farmer
asked
to
have
input
if
the
Tribe,
governor,
or
other
groups
requested
a
burn
ban
on
days
when
atmospheric
conditions
favored
burning.
Several
farmers
and
one
industry
association
asked
to
be
included
in
the
process
for
developing
smoke
management
plans
and
related
regulations.
Another
farmer
asked
for
information
about
how
the
terms
and
conditions
of
the
burning
permits
would
be
determined.

Response:
The
commenters
are
referring
to
implementation
of
smoke
management
plans
under
the
FARR.
Burn
managers
strive
to
use
the
best
available
technical
tools
for
making
burn
decisions
and
rely
on
best
judgment
and
sound
science.
They
balance
many
factors
to
determine
whether
burning
will
be
allowed,
including
current
and
predicted
meteorological
and
air
quality
conditions
and
possible
local
and
regional
impacts
from
burning.
Due
to
the
rapid
process
of
evaluating
weather
and
air
quality
data,
it
is
not
possible
for
burn
managers
to
consider
input
from
the
public
on
a
daily
basis.
However,
EPA
will
consider
how
to
obtain
input
from
the
public
in
the
development
of
general
smoke
management
plans,
as
well
as
the
terms
and
conditions
of
burning
permits,
to
implement
these
rules.

3.
Comment:
One
State
recommended
that
the
permit
application
require
a
demonstration
that
alternatives
to
burning
were
considered
and
properly
rejected
and
that
information
be
considered
before
granting
a
permit.

Response:
We
agree
with
the
commenter
that
these
are
good
practices
to
follow
to
make
burning
permits
more
effective.
Because
these
provisions
relate
primarily
to
implementation,
however,
EPA
is
not
adding
these
requirements
in
the
final
rule.
As
we
stated
in
the
preamble
to
the
final
rule
regarding
open
burning,
EPA
intends
to
work
with
Tribal,
State,
and
local
governments
to
identify
and
promote
alternatives
to
burning.

T.
Section
49.134
Rule
for
Forestry
and
Silvicultural
Burning
Permits
1.
Comment:
Two
industry
associations
recommended
that
the
open
burning
permit
8/
19/
04
51
requirements
under
§
49.132
Rule
for
general
open
burning
permits
be
expressly
exempt
from
this
section.

Response:
This
rule
only
applies
to
forestry
and
silvicultural
burning.
Section
49.132
already
expressly
exempts
forestry
and
silvicultural
burning
from
the
requirements
of
that
rule.
EPA
sees
no
need
to
add
a
provision
to
§
49.134
that
exempts
forestry
and
silvicultural
burning
from
§
49.132,
a
rule
that
does
not
apply
to
forestry
and
silvicultural
burning.
EPA
is
finalizing
the
rule
as
proposed.

2.
Comment:
Comments
on
the
forestry
burning
permits
related
to
how
the
permit
program
would
be
implemented.
One
Tribe
suggested
that
EPA
work
closely
with
the
Tribes
to
ensure
that
permits
are
coordinated
with
existing
permits
from
local
government
authorities.

Response:
EPA
will
work
to
coordinate
permits
issued
under
§
49.134
with
existing
permits
from
local
government
authorities.
Please
see
the
document
titled
"
Framework
for
Implementation
of
the
FARR"
in
the
docket
for
an
overview
of
EPA's
plan
for
implementation
of
the
FARR.

U.
Section
49.135
Rule
for
Emissions
Detrimental
to
Human
Health
or
Welfare
1.
Comment:
Five
industry
associations
requested
that
open
burning,
agricultural
activities,
agricultural
burning,
forestry
or
silvicultural
activities,
and
forestry
or
silvicultural
burning
be
exempted
from
this
rule.

Response:
These
rules
apply
to
any
person
who
owns
or
operates
an
air
pollution
source
within
the
Indian
reservations.
These
rules
are
intended
to
prevent
the
emission
of
air
pollutants
from
any
air
pollution
source
from
causing
or
contributing
to
a
violation
of
the
NAAQS
or
being
detrimental
to
health
or
welfare.
Because
open
burning,
agricultural
activities,
agricultural
burning,
and
forestry
or
silvicultural
burning
are
sources
of
air
pollution
that
can
cause
these
types
of
impacts,
even
when
done
in
compliance
with
other
requirements,
EPA
is
not
exempting
them
from
this
section
of
the
final
rule.

2.
Comment:
Five
industry
associations,
four
companies
and
one
Tribe
noted
that
this
rule
suggests
broad
authority
for
EPA
to
impose
conditions
in
a
permit
in
the
event
that
a
source's
emissions
(
1)
cause
or
contribute
to
a
violation
of
any
NAAQS,
or
(
2)
would
likely
be
injurious
to
human
health
and
welfare.
The
commenters
stated
that
the
latter
standard
­
injurious
to
human
health
and
welfare
­
is
very
broad,
vague,
and
practically
unenforceable
and
that
there
is,
in
effect,
no
criteria
established
for
making
this
determination.
One
commenter
stated
that
this
provision
appears
to
go
far
beyond
implementation,
maintenance,
and
enforcement
of
the
NAAQS.
The
commenters
urged
that
only
the
first
standard
­
the
NAAQS
­
be
used
because
compliance
with
the
NAAQS
is
protective
of
human
health
and
welfare.
The
commenters
felt
that
this
section
expands
EPA's
authority
without
a
statutory
basis
and
subjects
sources
on
Indian
reservations
in
8/
19/
04
52
Idaho
to
potentially
more
stringent
regulation
than
similar
sources
located
off
of
the
reservations.

Response:
EPA
has
considered
these
comments
and
has
decided
not
to
change
the
rule.
This
rule
is
intended
to
provide
EPA
with
an
administrative
mechanism
for
addressing
a
wide
variety
of
potential
air
quality
problems
that
could
involve
criteria
pollutants,
non­
criteria
pollutants,
hazardous
air
pollutants,
or
other
air
pollutants
that
uniquely
impact
a
specific
area
within
an
Indian
reservation.
Since
these
air
pollutants
impact
human
health
and
welfare
in
different
ways,
it
is
not
possible
to
establish,
up
front,
criteria
for
making
a
determination.
Each
determination
will
be
made
on
a
case­
by­
case
basis
in
an
open,
public
manner.
The
final
Agency
action,
which
would
be
a
permit
to
construct,
permit
to
operate,
or
an
order,
will
be
subject
to
both
administrative
and
judicial
appeal.
While
EPA
expects
that
this
provision
will
be
used
most
often
to
address
NAAQS
violations,
it
may
also
be
utilized
to
address
problems
associated
with
other
regulated
air
pollutants
(
such
as
section
111
and
112
pollutants)
where
EPA
is
mandated
to
ensure
the
protection
of
public
health
and
welfare.
Finally,
EPA
disagrees
that
this
provision
will
subject
sources
on
Indian
reservations
to
potentially
more
stringent
requirements
than
sources
located
off
the
reservations.
Nearly
all
State
and
local
air
authorities
have
broad
authority
to
regulate
emissions
that
are
detrimental
to
human
health
and
welfare,
or
cause
a
public
nuisance.
This
provision
essentially
"
levels
the
playing
field"
such
that
sources
located
on
the
reservations
would
be
required
to
control
their
emissions
so
as
not
to
cause
impacts
that
they
would
not
be
allowed
to
cause
outside
the
reservations.

3.
Comment:
One
nonprofit
foundation
suggested
that,
to
avoid
potential
delays,
EPA
remove
the
necessity
for
the
Regional
Administrator
to
make
a
formal
determination
that
particular
emissions
are
injurious
to
public
health
in
order
for
the
emissions
to
be
prohibited
under
the
rule.

Response:
EPA
has
considered
this
comment
and
has
decided
not
to
change
the
rule.
As
discussed
in
the
response
to
U.
2
above,
this
rule
is
intended
to
provide
EPA
with
an
administrative
mechanism
for
addressing
a
wide
variety
of
potential
air
quality
problems.
EPA
believes
that
it
is
not
appropriate
or
necessary
to
impose
upon
each
and
every
air
pollution
source
within
the
39
reservations
the
burden
of
determining
whether
their
emissions
are
detrimental
to
public
health
or
welfare.
This
determination
is
often
technically
complex,
costly,
and
requires
significant
expertise
in
a
number
of
areas
(
e.
g.,
emissions
modeling,
risk
assessment)
and
therefore
we
believe
the
determination
is
best
left
to
the
responsibility
of
air
pollution
authorities.
Each
determination
will
be
made
on
a
case­
by­
case
basis
in
an
open,
public
manner.

4.
Comment:
One
nonprofit
foundation
suggested
EPA
should
require
the
Regional
Administrator
to
investigate
whether
emissions
are
or
are
not
injurious
to
human
health
and
welfare,
when
EPA
received
a
credible
report
thereof.

Response:
EPA
has
considered
this
comment
and
has
decided
it
is
not
necessary
to
change
the
rule.
EPA
does
not
believe
that
it
needs
to
establish
a
new
non­
discretionary
duty
for
EPA
beyond
what
is
specifically
mandated
in
the
CAA.
This
rule
is
only
providing
a
regulatory
process
for
implementing
authority
already
established
in
the
statute
and
should
not
bind
EPA
in
more
8/
19/
04
53
respects
than
the
statute
already
does.

5.
Comment:
One
nonprofit
foundation
suggested
EPA
should
change
the
rule
to
read:
"
If
the
Regional
Administrator
makes
either
of
the
above
determinations,
then
the
Regional
Administrator
shall
require
the
owner
or
operator
of
the
source
to
install
air
pollution
controls
or
take
necessary
precautions
to
reduce
or
prevent
the
emissions."

Response:
EPA
has
considered
this
comment
and
has
decided
not
to
change
the
rule.
The
purpose
of
this
provision
is
to
indicate
some
of
the
actions
that
the
Regional
Administrator
could
take
if
he/
she
makes
a
determination
that
emissions
from
a
source
are
detrimental
to
human
health
or
welfare.
The
Regional
Administrator
could
take
other
actions,
such
as
an
enforcement
action
for
failing
to
comply
with
applicable
requirements,
or
even
an
order
under
section
303
of
the
Act
to
require
the
source
to
stop
emitting
pollutants
altogether.
Or,
as
indicated
in
these
examples,
the
Regional
Administrator
could
require
the
source
to
get
a
permit
in
which
EPA
prescribes
certain
control
requirements
that
must
be
met
on
an
ongoing
basis.
EPA
does
not
believe
that
it
is
either
appropriate
or
necessary
to
limit
what
approach
could
be
used
to
address
a
particular
situation.

6.
Comment:
One
nonprofit
foundation
suggested
EPA
should
modify
§
49.135(
2)
to
include
the
additional
conditions
listed
in
§
49.136(
2)(
iii)
that
prohibit
any
emissions
that
the
Regional
Administrator
determines
would
unreasonably
interfere
with
the
enjoyment
of
life
and
property.

Response:
EPA
has
considered
this
comment
and
has
decided
not
to
change
the
rule.
Section
49.135
and
section
49.136
are
intended
to
provide
EPA
with
authority
to
address
different
air
quality
problems.
Section
49.135
is
focused
on
those
air
pollutants
that
have
traditionally
been
regulated
under
sections
110,
111,
and
112
of
the
CAA
where
EPA
is
mandated
to
ensure
the
protection
of
public
health
and
welfare.
Section
49.136
covers
these
traditional
pollutants
and
impacts
but
also
goes
farther
to
provide
authority
to
address
other
air
quality
impacts,
including
those
values
to
be
protected
according
to
section
160(
2)
and
section
302(
h)
of
the
CAA.

V.
Section
49.136
Rule
for
Emissions
Detrimental
to
Persons,
Property,
Cultural
or
Traditional
Resources
1.
Comment:
Four
industry
associations
requested
that
open
burning,
agricultural
activities,
agricultural
burning,
forestry
or
silvicultural
activities,
and
forestry
or
silvicultural
burning
be
exempted
from
this
rule.

Response:
This
rule
applies
to
any
person
who
owns
or
operates
an
air
pollution
source
within
the
Nez
Perce
Reservation
and
the
Umatilla
Indian
Reservation.
This
rule
is
intended
to
prevent
the
emission
of
air
pollutants
from
any
air
pollution
source
from
causing
or
contributing
to
a
violation
of
the
NAAQS,
being
detrimental
to
health
or
welfare
or
being
detrimental
to
persons,
property
or
cultural
or
traditional
resources.
Because
open
burning,
agricultural
activities,
8/
19/
04
54
agricultural
burning,
and
forestry
or
silvicultural
burning
are
sources
of
air
pollution
that
can
cause
these
types
of
impacts,
even
when
done
in
compliance
with
other
requirements,
EPA
is
not
exempting
them
from
this
section
of
the
final
rule.

2.
Comment:
Four
industry
associations,
two
companies,
and
one
Tribe
noted
that
this
rule
is
broader
in
authority
than
§
49.135
Emissions
detrimental
to
human
health
or
welfare,
providing
authority
for
EPA
to
impose
conditions
in
a
permit
in
the
event
that
a
source's
emissions
(
3)
unreasonably
interferes
with
the
enjoyment
of
life
or
property,
or
(
4)
is
damaging
to
unique
Tribal
cultural
or
traditional
resources.
The
commenters
stated
that
these
standards
are
very
broad,
vague,
and
practically
unenforceable
and
reiterate
the
comments
on
§
49.135.
One
commenter
stated
that
this
provision
appears
to
go
far
beyond
implementation,
maintenance,
and
enforcement
of
the
NAAQS
and
is
beyond
EPA's
authority
to
promulgate.
The
commenters
felt
that
this
section
expands
EPA's
authority
without
a
statutory
basis
and
subjects
sources
on
reservations
to
potentially
more
stringent
regulation
than
similar
sources
located
off
of
the
reservation.

Response:
EPA
has
considered
these
comments
and
has
decided
not
to
change
the
rule
for
the
same
reasons
stated
above
in
the
response
to
similar
comments
on
§
49.135
(
comment
U.
2).
EPA
does,
however,
acknowledge
that
this
provision
will
provide
authority
beyond
what
is
provided
in
§
49.135
and
could
potentially
result
in
requirements
for
sources
within
reservations
that
are
more
stringent
than
for
sources
located
off
of
the
reservation.
However,
this
situation
is
very
similar
to
that
of
sources
that
are
located
near
mandatory
Federal
Class
I
areas
where
the
CAA
requires
the
protection
of
the
unique
"
air
quality
related
values"
of
our
national
parks
and
wilderness
areas.
EPA
believes
that
section
160(
2)
and
section
302(
h)
of
the
CAA
provide
adequate
authority
for
EPA
to
establish
this
regulation
when
it
is
directly
implementing
the
CAA
in
Indian
country.
EPA
also
believes
that
implementing
the
CAA
on
these
reservations
is
consistent
with
the
Federal
government's
trust
responsibility
to
Tribes.

3.
Comment:
One
citizen
association
commented
that
the
rule
is
"
replete
with
ambiguity
of
terms
that
could
promulgate
inappropriate
or
abusive
use
of
air
quality
authority
of
Tribes
or
by
EPA
on
behalf
of
Tribes."
As
an
example,
the
commenter
pointed
out
that
there
was
no
definition
of
the
phrase
"
detrimental
to
unique
Tribal
cultural
or
traditional
resources,"
thereby
"
leaving
the
door
wide
open
for
interpretation
that
is
likely
neither
favorable
nor
fair
to
non­
Indian
residents,
business,
and
property
owners."
One
company
commented
similarly
that
the
rule
could
encompass
almost
anything
and
that
the
Tribe
could
ban
field
burning
for
almost
any
reason.

Response:
EPA
disagrees
that
the
rule
is
vague
or
ambiguous
and
that
EPA
would
implement
the
rule
in
a
manner
that
would
not
be
favorable
nor
fair
to
non­
Indian
residents,
business
and
property
owners.
First,
the
rule
is
intended
to
be
used
to
address
distinct
and
unique
situations
where
emissions
from
a
source
or
activity
are
having
an
impact.
Each
reservation
may
have
unique
Tribal
cultural
or
traditional
resources
that
are
affected
differently
by
air
pollution,
and
need
different
levels
of
protection.
Like
the
requirements
of
the
CAA
to
protect
the
"
air
quality
related
values"
in
the
nation's
national
parks
and
wilderness
areas,
identifying
the
cultural
or
8/
19/
04
55
traditional
resources,
assessing
the
current
and
future
impacts
due
to
air
pollution,
and
determining
whether
emissions
are
detrimental
to
those
resources
will
be
a
case­
by­
case
determination
that
involves
the
Tribes,
EPA,
and
other
stakeholders,
including
the
sources
of
air
pollution.
Importantly,
any
determination
that
emissions
are
in
fact
detrimental
will
be
made
by
EPA,
not
the
Tribes.
The
determination
will
have
a
sound
scientific
basis,
so
under
this
rule,
neither
EPA
nor
a
Tribe
could
ban
field
burning
for
just
any
reason.
It
is
also
important
to
note
that
this
rule
will
only
apply
on
two
reservations
­
the
Nez
Perce
Reservation
in
Idaho
and
the
Umatilla
Reservation
in
Oregon
­
which
are
also
the
two
reservations
for
which
EPA
is
promulgating
agricultural
burn
permitting
rules.
It
would
be
incongruous
for
EPA
to
establish
a
specific
rule
to
regulate
agricultural
burning
and
then
decide
to
arbitrarily
ban
field
burning
under
another
rule.

W.
Section
49.137
Rule
for
Air
Pollution
Episodes
1.
Comment:
One
State
air
agency
suggested
that
the
FIPs
for
reservations
in
Idaho
be
at
least
as
stringent
as
IDEQ's
rule
for
air
pollution
episodes.
The
State
also
commented
that
§
§
49.131
and
49.137
appear
to
be
in
conflict
and
inconsistent
with
each
other.
The
commenter
asserted
that
during
an
air
pollution
alert
or
air
stagnation
advisory,
a
mandatory
burn
ban
is
required
in
§
49.131(
3),
whereas
a
voluntary
curtailment
of
emissions
is
required
in
§
49.137(
c)(
3).
The
commenter
also
requested
an
explanation
of
the
reason
for
the
different
treatment
of
open
burning
versus
woodstoves,
motor
vehicles,
and
industrial
sources,
respectively,
and
whether
"
industrial
sources"
include
open
burning
activities.
The
commenter
also
noted
that
§
49.131(
4)
requires
an
open
burn
ban
when
air
quality
levels
exceed,
or
are
expected
to
exceed,
75%
of
the
air
quality
standards
while
§
49.137
is
silent
on
this
requirement.

Response:
EPA
is
revising
both
§
49.131
and
§
49.137
to
clarify
that
all
open
burning,
except
for
exempted
fires
set
for
cultural
or
traditional
purposes,
is
prohibited
during
an
air
stagnation
advisory,
air
pollution
alert,
warning,
or
emergency,
or
when
the
Regional
Administrator
declares
a
burn
ban
because
air
quality
levels
have
exceeded,
or
are
expected
to
exceed,
75%
of
any
NAAQS
for
particulate
matter
and
these
levels
are
projected
to
continue
or
recur
over
at
least
the
next
24
hours.
Also
see
response
to
comment
A.
7.
The
reason
open
burning
is
prohibited
during
these
events,
but
the
use
of
woodstoves,
motor
vehicles,
and
industrial
sources
are
not,
is
that
open
burning
produces
a
large
quantity
of
uncontrolled
emissions
that
are
usually
trapped
close
to
the
ground
when
air
is
stagnant.
Moreover,
based
on
our
understanding
of
the
air
quality
situation
and
emission
sources
on
the
39
reservations,
we
did
not
find
that
it
was
necessary
or
appropriate
to
require
a
mandatory
curtailment
of
these
other
activities.
Delaying
open
burning
until
air
quality
conditions
improve
has
less
impact
on
people
than
not
being
allowed
to
heat
their
home,
drive,
or
operate
their
business.
Therefore,
we
believe
that
prohibiting
open
burning
during
these
air
quality
events
is
an
appropriate
way
to
reduce
emissions.
Note
that
the
rule
does
call
for
a
voluntary
curtailment
of
emissions
from
woodstoves,
fireplaces,
motor
vehicles,
and
industrial
sources
during
an
air
stagnation
advisory,
air
pollution
alert;
air
pollution
warning,
or
air
pollution
emergency,
and
during
an
air
pollution
warning
or
air
pollution
emergency,
the
Regional
8/
19/
04
56
Administrator
may
issue
an
order
to
any
air
pollution
source
requiring
the
source
to
curtail
or
eliminate
the
emissions.
EPA's
experience
from
implementing
the
air
pollution
episode
rule
and
from
calling
burn
bans
will
also
assist
EPA
in
determining
whether
additional
future
rulemakings
are
necessary
or
appropriate
to
revise
the
rule.
In
response
to
the
comment
asking
whether
"
industrial
sources"
include
open
burning
activities,
we
would
consider
open
burning
occurring
at
an
industrial
facility
to
be
part
of
the
"
industrial
source"
under
this
section,
and
we
would
also
consider
it
to
be
open
burning,
which
would
be
prohibited
during
an
air
pollution
episode
or
burn
ban.

2.
Comment:
One
Tribe
commented
that
with
regard
to
burn
bans,
the
NAAQS
for
PM10
and
PM2.5
are
not
sufficient
to
protect
health
and
human
welfare.
The
Tribe
suggests
a
one­
hour
trigger
when
the
PM2.5
levels
reach
a
certain
level,
and
recommended
IDEQ's
standard
of
80
ug/
m3.
The
Tribe
suggested
the
rule
should
include
a
one­
hour
and
24­
hour
pollution
alert,
warning
and
emergency
levels
for
PM2.5
and
PM10.
One
nonprofit
foundation
suggested
EPA
should
include
a
one­
hour
average
trigger
to
account
for
short
term
spikes
in
PM
that
cause
the
most
severe
acute
health
problems
for
sensitive
people.
The
commenter
suggested
EPA
should
reduce
the
24­
hour
average
trigger
level
for
a
PM
pollution
warning
or
emergency
because
the
proposed
levels
are
too
high
to
protect
the
public
from
health
impacts
from
grass
field
burning.
A
couple
commenters
suggested
that
EPA
should
set
action
levels
for
PM2.5,
once
the
NAAQS
for
PM2.5
are
finalized.

Response:
Please
see
the
response
in
S.
5
under
open
burning
for
a
discussion
of
burn
ban
levels.
Commenters
generally
requested
that
EPA
revise
these
rules
to
require
EPA
actions
at
lower
concentrations
of
particulate
matter
than
proposed
in
the
rules.
These
commenters
misunderstood
the
purpose
of
this
section.
This
section
is
intended
to
fulfill
the
requirements
of
section
110(
a)(
2)(
G)
of
the
Act
and
40
CFR
part
51,
subpart
H
Prevention
of
Air
Pollution
Emergency
Episodes,
that
the
implementation
plan
include
provisions
to
prevent
imminent
and
substantial
endangerment
to
public
health.
These
provisions
are
not
intended
to
prevent
violations
of
the
NAAQS.
In
fact,
the
voluntary
and
mandatory
actions
envisioned
by
these
rules
are
not
triggered
until
air
quality
concentrations
have
exceeded
the
ambient
standards
(
see
40
CFR
part
51,
appendix
L
Example
Regulations
for
Air
Pollution
Emergency
Episodes).
Since
these
rules
are
only
for
the
purposes
of
implementing
the
Federal
requirements
for
emergency
episodes,
EPA
will
not
change
the
trigger
levels
set
forth
in
part
51,
nor
add
1­
hour
levels
or
levels
for
PM2.5
at
this
time.
After
EPA
revises
part
51
to
establish
levels
for
PM2.5
and/
or
revises
the
PM10
levels,
EPA
Region
10
will
revise
these
rules
accordingly.

3.
Comment:
One
Tribe
requested
that
EPA
add
a
provision
whereby
the
Tribe
is
notified
of
real
or
potential
threats
to
the
reservation
airshed
from
off­
reservation
sources
such
as
Hanford
releases
or
proposed
incinerators.

Response:
EPA
believes
that
the
rule
addresses
this
concern
as
currently
drafted.
If
air
quality
within
a
reservation
is
impacted
by
off­
reservation
sources
such
that
the
trigger
levels
are
reached,
EPA
will
issue
the
appropriate
warnings
and
work
with
the
responsible
State
or
local
agency
to
8/
19/
04
57
reduce
emissions
from
the
contributing
sources.
Similarly,
if
on­
reservation
sources
are
contributing
to
levels
outside
the
reservation,
and
the
State
or
local
trigger
levels
have
been
reached,
EPA
will
work
with
the
appropriate
parties
to
reduce
emissions
from
on­
reservation
sources.

4.
Comment:
One
nonprofit
foundation
suggested
EPA
should
amend
the
rule
so
that
the
Regional
Administrator
can
declare
an
air
pollution
warning
or
emergency
and
curtail
emissions
within
the
reservation
based
on
air
quality
monitoring
information
from
outside
the
reservation
boundaries.
In
other
words,
the
monitor
readings
that
trigger
an
air
pollution
episode
need
not
only
come
from
monitors
located
within
the
exterior
boundaries
of
a
reservation.

Response:
EPA
believes
that
the
rule
addresses
this
concern
as
currently
drafted.
The
rule
currently
authorizes
the
Regional
Administrator
to
make
determinations
based
on
data
from
any
monitoring
site.
This
includes
monitoring
sites
outside
a
reservation
that
would
provide
information
on
air
quality
within
a
reservation
as
well.

X.
Section
49.138
Rule
for
the
Registration
of
Air
Pollution
Sources
and
the
Reporting
of
Emissions
1.
Comment:
One
industry
association
and
one
company
commented
that
part
71
sources
should
be
exempted
from
the
registration
rule
since
they
are
already
required
to
provide
the
information
through
the
permitting
process
and
are
required
to
provide
information
and
compliance
certifications
on
an
annual
basis.

Response:
EPA
feels
that
it
is
appropriate
not
to
completely
exempt
part
71
sources
from
this
rule.
However,
the
final
rule
modifies
the
proposal
by
requiring
only
the
submittal
of
annual
emission
reports.
While
part
71
sources
are
required
to
submit
permit
applications
and
then
submit
annual
compliance
certification
reports,
the
part
71
permits
do
not
require
annual
reporting
of
all
emissions
as
would
these
rules.
Part
71
permits
only
require
reporting
of
emissions
as
necessary
to
demonstrate
compliance
with
applicable
requirements
or
to
document
payment
of
fees.
However,
it
is
important
to
note
that
the
emissions
information
required
to
be
collected
and
reported
by
part
71
will
provide
much
of
the
information
required
to
be
submitted
by
this
registration
rule.
The
annual
registration
report
will
be
submitted
at
the
same
time
as
the
part
71
annual
emission
report
and
fee
calculation
worksheet.
These
reports
can
be
combined
provided
that
the
combined
report
clearly
identifies
which
emissions
are
the
basis
for
the
annual
registration
report,
the
part
71
annual
emission
report,
and
the
part
71
fee
calculation
worksheet.

2.
Comment:
One
nonprofit
foundation
suggested
EPA
should
modify
this
rule
to
remove
agricultural
burning
from
the
list
of
emission
sources
that
are
exempted
from
reporting
to
ensure
the
public
has
access
to
this
information
about
major
sources
of
PM
emissions.

Response:
EPA
is
not
requiring
the
registration
of
agricultural
burning
activities
under
§
49.138.
8/
19/
04
58
Several
other
rules
established
in
the
FARR
regulate
open
burning,
including
agricultural
burning.
EPA
believes
that
a
smoke
management
program
under
§
49.133
Rule
for
Agricultural
Burning
Permits
may
be
designed,
as
appropriate,
to
require
farmers
to
provide
information
on
their
burn
activities.
EPA
is
promulgating
the
agricultural
burn
permit
rule
for
the
Nez
Perce
Reservation
and
the
Umatilla
Indian
Reservation
because
we
have
concluded,
in
consultation
with
the
Tribal
governments,
that
the
requirements
are
appropriate.
EPA
is
not
applying
the
agricultural
burn
permit
rule
on
other
reservations
because
we
have
not
yet
determined
that
it
is
necessary
or
appropriate
to
promulgate
the
rule
in
those
locations.

3.
Comment:
One
State
air
agency
requested
that
the
rule
be
revised
to
require
that
copies
of
registration
materials
be
provided
to
IDEQ.

Response:
EPA
is
not
adding
a
requirement
to
provide
copies
of
registration
materials
to
another
agency
as
a
matter
of
law.
EPA
will
discuss
with
IDEQ
how
best
to
provide
them
with
the
requested
information
once
the
registration
rule
is
in
effect
and
EPA
has
received
information
from
covered
sources.

Y.
Section
49.139
Rule
for
Non­
Title
V
Operating
Permits
1.
Comment:
Four
industry
associations
commented
that
this
section
should
clearly
state
that
EPA's
authority
to
require
a
source
to
obtain
an
operating
permit
is
limited
to
the
authority
granted
it
by
the
CAA.

Response:
As
explained
elsewhere,
EPA's
authority
to
promulgate
this
rule
and
to
require
operating
permits
derives
from
sections
301
and
110
of
the
CAA,
and
the
Tribal
Authority
Rule
in
40
CFR
part
49.

2.
Comment:
One
State
air
agency
requested
that
the
rule
be
revised
such
that
portable
sources
be
included
and
addressed
under
this
rule,
or
if
applicable,
a
part
71
operating
permit.
The
commenter
suggested
that
another
option
would
be
to
include
a
permit
by
rule
for
nonmetallic
mineral
process
plants
(
rock
crushers)
similar
to
that
in
Idaho's
rules.
The
commenter
noted
that
due
to
their
transient
status,
consistent,
coordinated
cross­
boundary
regulation
of
portable
sources
is
particularly
desirable.

Response:
EPA
has
considered
the
comment
to
include
portable
sources.
This
rule
already
covers
portable
sources.
Portable
sources
are
air
pollution
sources,
and
are
not
specifically
exempted
from
these
rules.
The
commenter
also
suggested
including
a
permit
by
rule
for
nonmetallic
mineral
processing
plants.
A
permit
by
rule
for
a
category
of
sources
can
be
an
effective
way
to
regulate
a
large
number
of
sources
with
similar
requirements.
EPA
does
not
believe
a
permit
by
rule
for
nonmetallic
mineral
processing
plants
is
necessary
or
appropriate
at
this
time,
as
EPA
is
not
aware
of
a
large
number
of
these
sources
operating
within
reservations,
nor
whether
any
of
these
sources
would
be
required
to
get
a
permit
under
this
rule.
If
many
such
8/
19/
04
59
sources
end
up
being
required
to
obtain
operating
permits
under
this
rule,
EPA
may
consider
a
permit
by
rule
in
the
future.

Z.
Section
49.11105
Classification
of
Regions
for
Episode
Plan
1.
Comment:
One
Tribe
commented
that
the
classification
system
is
no
longer
used
for
air
quality
planning
and
management;
it
is
a
remnant
regulation
from
past
CAA
rules.
The
commenter
stated
that
the
classification
does
not
improve
the
ability
of
the
Agency
to
protect
public
health
and
only
complicates
this
rule.
Since
the
classification
system
is
no
longer
used,
and
it
is
purely
a
holdover
from
previous
rules,
the
commenter
recommended
removing
it
from
the
rule
if
possible.

Response:
EPA
agrees
that
the
classification
of
regions
is
no
longer
used
for
most
of
the
air
quality
planning
and
management
requirements
of
the
CAA
as
amended
in
1977
and
1990.
In
fact,
EPA
has
revised
nearly
all
of
its
requirements
for
implementation
plans
in
40
CFR
part
51
to
reflect
the
new
system
of
attainment
and
nonattainment
designations
for
purposes
of
planning
and
management.
However,
EPA
has
retained
this
classification
system
for
one
regulatory
program
­
the
requirements
for
prevention
of
air
pollution
emergency
episodes
at
40
CFR
part
51,
subpart
H
(
specifically,
40
CFR
51.150
Classification
of
regions
for
episode
plans).
Until
EPA
changes
the
requirements
of
40
CFR
part
51
with
respect
to
where
emergency
episode
plans
are
required,
EPA
must
retain
and
implement
the
classification
of
regions
provisions.
