	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

	REGION 5

	AIR AND RADIATION DIVISION

	77 WEST JACKSON BOULEVARD

	CHICAGO, IL 60604-3590

	

Response to Comments received in 1997 and 2007 relating to proposed
rulemaking for the Forest County Potawatomi Community’s Request for 

Class I Redesignation of Certain Reservation Lands 

Region 5

March 31April 15, 2008

This document provides the United States Environmental Protection
Agency’s (EPA) responses to comments received in 1997 and 2007
relating to EPA’s proposed rulemaking for the Forest County Potawatomi
Community’s (FCP Community) request for Class I redesignation of
certain reservation lands.  The FCP Community Tribal Council requested
in 1995 to redesignate certain portions of the FCP Community Reservation
as a non-Federal Class I area under the Clean Air Act (Act or CAA)
program for the Prevention of Significant Deterioration of air quality
(PSD). 

In 1995, EPA proposed to approve a request by the FCP Community Tribal
Council to redesignate lands within the FCP Community Reservation in the
State of Wisconsin to Class I.  60 Fed. Reg. 33779 (June 29, 1995).  The
notice provided for a 60-day public comment period and public hearing. 
Following publication of this notice, the states of Wisconsin and
Michigan initiated dispute resolution under CAA section 164(e) pf the
CAA’s PSD program.  As part of an effort to facilitate discussion of
the states’ issues, EPA postponed the public meeting and suspended
indefinitely the public comment period.  60 Fed. Reg. 40139 (August 7,
1995).  The parties were unable to reach a resolution, however, and
consequently, EPA moved to bring closure to the rulemaking process by
publishing a notice for two informational meetings and two public
hearings on EPA’s 1995 proposal to approve the FCP Community’s
redesignation request, with a public comment period to close on
September 15, 1997.  62 Fed. Reg. 37007 (July 10, 1997).  EPA held
public hearings on the proposed redesignation on August 12, 1997, in
Carter, Wisconsin, and August 13, 1997, in Rhinelander, Wisconsin.  By
the close of the public comment period, EPA had received more than 120
comments on the proposed redesignation.   In its notices on the proposed
action, however, EPA did not explicitly state the mechanism it would use
if it granted the redesignation request nor did the Agency include a
draft of its codification.  Consequently, on December 18, 2006, EPA
published a proposal to promulgate a Federal Implementation Plan (FIP)
to be used if EPA approved the FCP Community’s request for
redesignation.  EPA also received comments on this proposal.

In this document we address comments received during both the 1997 and
2006-2007 public comment periods and the public hearings held regarding
this rulemaking.  The public hearing transcripts and all written
comments received during the public comment period were reviewed and
considered by EPA prior to taking a final action.  

While some commenters identified alleged procedural defects in the FCP
Community’s redesignation proposal, most of the comments received by
EPA raise issues that clearly go beyond what EPA can appropriately
consider in its decision. EPA reviewed all comments received, and is
discussing them all, but notes that only those comments raising
potential procedural errors are relevant in determining whether EPA
should modify its 1997 proposal and disapprove the request.  All the
other comments objecting to the redesignation request do not provide a
basis for EPA disapproval.  EPA has nevertheless included responses to
these other comments for the purpose of promoting better community
understanding of the redesignation request.  For clarity and simplicity,
similar comments were consolidated for response.

All the comments and the transcripts of the public hearing can be found
in the docket for this action.

This document is organized as follows:

A. Class I Redesignation Requirements

	B.  Lands Suitable for Redesignation

C.  EPA’s Role in Evaluating Class I Redesignations

D.  Impact of Dispute Resolution on Redesignation

E.  Appropriate Mechanism for Codifying Class I Area: FIPs, SIPs, and
TIPs

F.  Air Program Implementation in Indian Country/Role of Tribes in
Protecting Air   

           Quality

G.  Air Quality Related Values (AQRVs) of Redesignated Lands

H.  Impact of Class I Redesignation on Minor Sources

I.  	Other Miscellaneous Concerns

A.  Class I Redesignation Requirements

Comment: Many commenters alleged that the Tribe’s Technical Report
(Technical Report), which was submitted as one element of the Tribe’s
request for Class I redesignation, was flawed because it was
“inadequate” for various reasons.  Details on commenters’ reasons
for report inadequacy follow.

Response: Commenters misunderstood the purpose of the Tribe’s
analysis.   Section 164(b)(1)(A) of the CAA requires that a State or
Tribe prepare for public comment a “satisfactory description and
analysis of the health, environmental, economic, social, and energy
effects of the proposed redesignation.”  Pursuant to the requirements
to prepare and make available a description and analysis of the proposed
redesignation request, the FCP Community released its Technical Report
for public comment in advance of its public hearing.  The FCP
Community’s redesignation request describes the FCP Community’s
reasons for proposing the redesignation, as well as alternatives to the
redesignation, and the potential impacts of the redesignation. The FCP
Community’s Technical Report and supporting documentation in the
Application examine the environmental, health, economic, social and
energy effects of the proposed redesignation both on and off FCP
Community’s reservation lands. The analysis includes a survey of
existing conditions and presents projected impacts of redesignation on
health, employment, and natural resources, including the projected
impacts to aquatic, forest, and wetlands ecosystems; and to fish and
wildlife populations.  The FCP Community’s Technical Report also
provides a discussion of the projected effects of redesignating to Class
I and the effects of remaining Class II.  

Neither the CAA nor EPA’s implementing regulations define
“satisfactory description and analysis,” as that term is used in CAA
section 164(b) and 40 CFR § 52.21(g) (2).  In construing its meaning,
EPA considered Congressional intent that EPA’s review of such a
“description and analysis” be deferential.  In addition, EPA
considered the question: “satisfactory to whom?” In enacting section
164(b), it is clear that Congress intended to entrust EPA with the
authority to set a deferential standard for “satisfactory description
and analysis.” Thus, EPA stated in its final rule on the
Yavapai-Apache Class I redesignation that: “[The use of the word
‘satisfactory’] in the statute and implementing regulations suggests
a relatively low threshold. Congress did not dictate that the analysis
be comprehensive or exhaustive. Further, the statutory language does not
assign any specific weight to the consideration of health, environmental
economic, social or energy effects, or suggest that one consideration
should be given priority over another. . . .” “Arizona,
Redesignation of the Yavapai-Apache Reservation to a PSD Class I Area
[hereafter “Yavapai Redesignation”],” 61 Fed. Reg. 56461, 56464
(November 1, 1996).

Legal precedent clearly supports EPA’s interpretation.  In reviewing a
challenge to the adequacy of a tribe’s analysis of the possible
effects of a redesignation, the Ninth Circuit looked to its prior
decision in Nance v. EPA, 645 F.2d 701 (9th Cir., 1981) upholding an EPA
decision to approve a redesignation by the Northern Cheyenne Tribe under
a prior statutory framework that gave EPA a broader role in reviewing
the adequacy of tribal consideration of such effects.  Administrator,
State of Arizona v. EPA, 151 F.3d 1205, 1208 (9th Cir., 1998) at
1211-1212.   In Nance, the petitioners claimed that the Tribe's analysis
was inadequate in several respects. The reviewing court affirmed EPA's
approval of the redesignation, rejecting the claim that the Tribe was
required to meet exacting analysis requirements and holding that the
Tribe had considered the factors identified in EPA's regulations. Nance,
645 F.2d at 712.  EPA's decision was upheld in this case under the far
more exacting pre-1977 regulatory regime that expressly provided for an
analysis that included consideration of growth anticipated, regional
impacts, and social, environmental and economic effects as well as
stricter EPA scrutiny of the analysis.  

Moreover, the court found that the Tribe's decision was supported and
strengthened by the policy for maintaining clean air embodied in the
CAA:  

“[T]he Clean Air Act contains a strong presumption in favor of the
maintenance of clean air, and the nature of a decision which simply
requires that the air quality be maintained at a certain level prevents
any exact prediction of its consequences. The Tribe has considered the
factors enumerated in EPA regulations, and its choice in favor of the
certainty of clean air is a choice supported by the preferences embodied
in the Clean Air Act.” 

Nance, 645 F.2d at 712.  

The 9th Circuit has deferred to EPA’s conclusion that the existing
statutory requirement of a “‘satisfactory description and
analysis’ is a relatively low threshold,” in approving a
redesignation request by the Yavapai-Apache Tribe. See Arizona v. EPA,
151 F.3d at 1211.  The court explained that the 1977 Clean Air Act
amendments to the PSD provisions, which are still in the statute,
changed previous law by eliminating EPA’s previous authority to
override a classification by a local government on the basis that the
local government did not properly weigh energy, environment, and other
factors.  Arizona v. EPA, 151 F.3d at 1211 (citing legislative history).
  The overarching limitation in the existing statutory language that EPA
can base a disapproval only on a finding that the redesignation “does
not meet the procedural requirements” of the Act, CAA Section
164(b)(2), further underscores EPA’s limited role in reviewing whether
there has been a “satisfactory description and analysis.”   

One commenter cited numerous cases which, he argued, showed how the term
“satisfactory” had been defined by the courts.  None of the cases
cited had any connection to the CAA generally or to Class I
redesignations particularly, and none are therefore relevant.    SEQ
CHAPTER \h \r 1  

For the forgoing reasons, EPA finds that the FCP Community met the
statutory requirement to provide a “satisfactory description and
analysis.”  

Comment:  Many commenters objected to the level of documentation in the
Tribe’s application regarding economic impacts.

Response:  These commenters are mistaken.  There is no requirement that
a State or Tribe conduct a balancing test of the costs and benefits of a
redesignation request, nor that the various factors to be considered in
its analysis need to be balanced against one another. EPA has taken the
position that the fact that no weight or priority is assigned to any
particular factor, taken together with the broad redesignation
discretion conferred by Congress on States and Tribes, indicates that
the Tribe does not have to justify its request to redesignate by
conducting a balancing test or showing that a proposed redesignation
will have no impact on the surrounding community. 

Comment:  The Technical Report should have addressed more potential
social and economic impacts of redesignation, or should have included a
cost-benefit analysis of the request as against projected economic
growth in the region.

Response:  EPA disagrees. The FCP Community’s application contained
information to show that the Tribe had examined the existing economy of
the region and analyzed the potential impact of Class I redesignation on
the existing and future projected economic growth in the region,
concluding that “The development of large industrial projects will
very likely be [a]ffected  more by economic viability, external market
conditions, and other existing local environmental and land use
restrictions than by the Class I redesignation.” 

Supplemental information, submitted by the FCP Community in June 1995,
contained an additional analysis showing that the anticipated (at that
time) PSD caliber sources planning to construct or expand, as well as
projected area economic growth, would not  be adversely impacted by the
proposed Class I area.   The analysis concluded that

Class I redesignation will not effect the operations of any existing
industry because the PSD program only effects the development of new air
pollutant sources.  Therefore the redesignation will not result in the
loss of any existing jobs, nor in the ‘downsizing’ or closing of any
existing businesses.  It will only require major new development
projects to analyze the effects of and control the emission of air
pollutants, so that the existing air quality remains clean.” 
[Emphasis in original].  

  SEQ CHAPTER \h \r 1 EPA has no basis to conclude that Class I
redesignation would negatively impact economic growth in the region, nor
cause a negative economic impact on facilities locating near the FCP
Reservation.  This region is currently designated a PSD Class II area,
so any new major sources or major modifications in the area are already
subject to the PSD program.  No new permits would be required and no new
substantive requirements would apply as a result of a redesignation of
reservation lands, and Class I status does not affect which sources
would be subject to PSD.  Major stationary sources proposing to locate
in any PSD area, regardless of whether it is Class II or Class I, must
still conduct the same type of analyses and use the best available
control technology.  A change from Class II to Class I designation only
affects the amount of air pollution a large industrial source can
create.

PSD permit applicants already are required to perform a modeling
analysis to ensure that the Class II increments are protected.  Thus
permit applicants are now required to gather the necessary data and
conduct studies on air quality for the Class II analysis.  Often
complying with Class I requirements merely means that extra receptor
points must be added to existing modeling in order to analyze the effect
of potential emissions on the Class I area and ensure that the Class I
increments are also protected.  The cost of this additional component of
an increments analysis should be relatively small.  Additionally, every
major stationary source proposing to locate in a PSD area, whether it
has been designated as Class I or Class II, must employ “best
available control technology” (BACT) to reduce emissions.  Since every
major source locating in a Class II area is already required to utilize
BACT air pollution controls, proximity to a Class I area generally would
not affect the level of control required. Thus, as a general rule,
redesignation should not impose additional control costs on a source.

  

Under certain circumstances a source may be required to achieve further
decreases in emissions to reduce its impact on a Class I area.  This
could be accomplished in several ways:  Installing additional emission
controls, restricting its hours of operation or the amount of
throughput, or even obtaining emission reductions from other sources in
the area could all achieve the desired emissions reduction.  There may
be additional costs for the source in such unusual cases.  However, EPA
believes that such cost increases will be rare occurrences that should
not significantly affect development in the area.  

Economic growth and the management of the more protective air quality
standard of a Class I area are not mutually exclusive.  This is
reflected by the fact that there are many prosperous communities in
Class II areas which are located adjacent to Class I areas. Tucson,
Arizona is a good example of this.  Despite being sandwiched between two
sections of the Saguaro National Park, a Federal Class I area, it has a
population size and economic activity level that is far greater than
that of most communities in northeastern Wisconsin.  In addition, there
are seven Class I areas either within or adjacent to the Los Angeles
metropolitan area.  A major industrial project can be developed
immediately next to a Class I area if clean fuel sources are utilized
and modern pollutant control systems are installed, or if older
“dirtier” pollutant sources are shut down as part of the development
of more efficient modern facilities (Technical Report at 5).  Therefore,
well managed industrial growth can occur with little deterioration of
air quality.  In sum, EPA has no basis to conclude that northeastern
Wisconsin will be at a competitive disadvantage with other regions that
lack Class I regulations or other countries which presently have no PSD
programs.

In sum, the FCP Technical Report and other supporting documents analyze
the off-reservation impact of redesignation on growth of existing
regional sources and potential sources consistent with existing economic
activity in the Region.  See Technical Report at 55-60.  The CAA
requires nothing more.

Comment:  The Report should address potential inter-state or national
impacts of Class I redesignation.

Response:    SEQ CHAPTER \h \r 1 There is no requirement in the CAA or
implementing regulations that a tribe (or state) seeking to redesignate
lands located wholly within one state must conduct an analysis of the
impacts of the proposed redesignation on a state-by-state basis or on
the nation as a whole.  Thus, the Report’s success or failure at
addressing such impacts would provide no basis for EPA to deny the
redesignation. Nevertheless, the FCP Technical Report analyzes a variety
of sources located up to 100 kilometers or 62 miles from the
reservation.  Based on the FCP Technical Report, similar sources located
within 100 kilometers of the FCP reservation located in the Upper
Peninsula of Michigan would be expected to have the same potential air
quality impacts on a Class I area.  Because the potential sources in
Michigan would fall beyond a 10 mile distance from the FCP Class I area,
the potential air emissions would be expected to fall below the air
quality impact thresholds.

The comments do not specify how the geographic location of sources in
Michigan would make inadequate the FCP’s analysis of similar Wisconsin
sources, which is detailed in the Technical Report.  The Technical
Report analyzes many different types of industries, ranging from energy
plants to pulp and paper mills, and mining operations.  Additionally,
the Technical Report contains an analysis of the climate and air quality
for reservation lands, including information about wind direction
(Technical Report at 15 – 20).  The Technical Report notes:

The National Weather Service monitoring station in Eau Claire,
Wisconsin, is the closest monitoring station to the reservation that is
representative of wind flow patterns for north central Wisconsin. 
Figure 3-2 presents the eau Claire wind rose for the five year period
1988 through 1992 (wind directions are, by convention, the direction the
wind blows from).  This wind rose indicates that predominate wind
directions range from the northwester counter-clockwise to the south,
with lower frequencies of occurrence of easterly and northeasterly
winds.  These predominate wind direction flow patterns are important
when evaluating the transport of pollutant emissions onto the
reservation.  (Technical Report at 15, 17).

The Technical Report continues:

The reservation is located in the North Central Wisconsin Intra-State
Air Quality Control Region #238.  In the northern counties of the region
most of the land is forested, while south of Marathon County most of the
land is agricultural.  Population and major industry (paper mills and
electrical power generation) are concentrated along the Wisconsin River
Valley in the Wausau, Stevens Point, and the Wisconsin Rapids areas
approximately 60 miles to the southwest of the reservation, and in
Rhinelander located approximately 30 miles to the west.  The locations
of these industrial areas are significant, since as discussed in Section
3.5 the predominate transport wind directions are also from the
northwest through south.  Therefore, the areas of major industrial
development are “upwind” of the reservation.  (Technical Report at
17).

Thus, air pollution from sources in Michigan will normally be carried
away from FCP land parcels.  Since the lands covered by the proposed
redesignation lie wholly within Forest County, Wisconsin, and upwind of
any Michigan sources, there is no scientific rationale to suggest why an
analysis of the redesignation’s impact on sources in Michigan, or
other states, is preferable to the analysis of its effect on nearby
Wisconsin sources.

Additionally, EPA received comments that the Class I redesignation will
adversely impact potential expansion of Champion International
Corporation’s Quinnesec Mill in Michigan.  The FCP Technical Report
included air dispersion modeling to determine the air quality impacts of
just such a project.  To be exact, the report analyzed the impacts on
the proposed Class I area from a 250 tons per day kraft paper mill.  In
fact, this particular project was analyzed specifically because it would
produce significant air emissions, as estimated using factors presented
in the “Air Pollution Engineering Manual” edited by Anthony
Buonicore. (Technical Report at 59).

The locations tested for this hypothetical mill, or equivalent mill
expansion, included the Rhinelander Paper Mill in Oneida County, the
Packaging Corp. of America and Ward Paper mills in Lincoln counties, the
Mosinee Paper mill in Marathon County, and the Consolidated Paper Mills
in Portage County.  The modeling showed that the maximum increment
impacts from this hypothetical project were approximately 10 % for the
short term SO2 Class I increments.  The analysis indicated that a 250
ton per day kraft paper mill located at a distance of 10 km or greater
would not violate Class I increments.  (Technical Report at 59).

Thus, if a 250 ton per day kraft paper mill located in surrounding
counties at a distance of only 10 km from the Class I area would not
violate Class I increments, it appears unlikely that expansion of a
similar facility located upwind in a neighboring state would be
jeopardized.  Fears that Class I redesignation of the FCP lands will
adversely impact potential expansion of Champion International
Corporation’s Quinnesec Mill in Michigan therefore appear unfounded.  

Comment:  The Tribe should have done additional data modeling and
analysis.  

Response:  The commenters are mistaken.    SEQ CHAPTER \h \r 1 There is
no requirement in the CAA or its implementing regulations that a state
or tribe perform modeling that takes into account all potential
parameters, or which incorporates specified modeling analyses.  

  SEQ CHAPTER \h \r 1 The FCP Technical Report examined the existing
economy of the region, and analyzed the potential impact of Class I
redesignation on the existing and future projected economic growth in
the region.  The Wisconsin Department of Natural Resources (WDNR)
confirmed the modeling done by the FCP Community in determining the
impacts of the PSD and minor source growth.  In the WDNR Air Program
newsletter, Air Matters (AM-155-95), John Heinrich, chief of Bureau of
Air Management’s Planning Section, wrote, 

Some citizens have expressed concern that reclassifying air quality in
this case could limit new industries outside reservation boundaries. 
Based on an increment analysis done by the tribe and verified by the
WDNR, plus the department’s past experience with Rainbow Lake
Wilderness area- Wisconsin’s only current Class I area- redesignation
of the Forest County Potawatomi Reservation to Class I status should
have little effect on industries in the counties surrounding Forest
County.  Redesignation will have the most effect on industries located
within about 15 miles of the reservation.  Within this area new major
industries, such as utilities and paper mills, or existing industries
making major changes, would need to ensure that emissions would not
impair reservation air quality.

Additionally, although there is no statutory obligation to identify
AQRVs prior to seeking redesignation, the FCP Community’s Technical
Report and a supplementary support document dated June 14, 1995,
provided the FCP Community’s analysis of potential impacts of
protecting the two AQRVs identified (mercury deposition and acid rain)
in the context of the health, environmental, energy, economic, and
social factors analysis, both for lands subject to the redesignation
request, and those located outside the proposed area.  The Technical
Report noted in several instances that adverse impacts on AQRVs, which
occur at concentrations lower than Class I increments, might pose an
additional restriction on the sitting of large projects.

In sum, the FCP Community provided “a discussion of the reasons for
the proposed redesignation, including a satisfactory description and
analysis of the health, environmental, economic, social and energy
effects of the proposed redesignation.”  40 C.F.R. 52.21(g).  In
adhering to its Congressional mandate, EPA’s review of the
“description and analysis” must be deferential.  Accordingly EPA
concludes that because the Tribe addressed the health, environmental,
economic, social and energy effects of redesignation, and because the
Tribe provided the public meaningful notice and public hearing on these
subjects, the Tribe’s “description and analysis” was
“satisfactory.”

Comment:  The Report did not address the potential cumulative impact of
multiple Class I redesignations by other tribes in Wisconsin.

Response:  EPA does not believe a cumulative study is required. Such an
analysis would be purely speculative and is not required by the CAA.   
SEQ CHAPTER \h \r 1 The CAA does not limit how many tribes or states may
seek Class I designation of qualified lands, nor does the Act place a
limit on the number of Class I areas that may be designated.  Any
redesignation request, by either a state or tribe will have to consider
the area of impact in its technical analysis supporting the
redesignation request.  The CAA does not require a state or tribe to
project potential future redesignations or to speculate about their
potential.  Any future proposed redesignation will be reviewed on a
fact-specific basis according to the applicable regulations.  

Comment: the Technical Report did not provide an adequate baseline of
air quality data for reservation lands so the Class I request could not
be properly evaluated.

Response:  EPA disagrees.    SEQ CHAPTER \h \r 1 As noted in the FCP
Technical Report, the baseline concentration is the conceptual reference
point or ''starting'' point for determining air quality deterioration in
a Class I area. (Technical Report at 9.)  Thus, the baseline
concentration is essentially the ambient air quality existing at the
time the first complete PSD application is made for a major new source
affecting that Class I area (i.e., the first new source that
deteriorates air quality after the PSD regulations are applicable).  The
majority of the land in Forest County is National Forest, and there is
thus very little industrial development in the area.  Consequently,
according to the WDNR, the PSD baseline date has not been triggered in
Forest County, and there has therefore not been any consumption of the
PSD increments in the area.  (Technical Report at 17.)  The lack of
baseline data at this time is not a deficiency in the FCP Community’s
redesignation submittal.  Rather, there is no baseline data at this time
because the baseline concentration level for Forest County has not yet
been triggered.  This will occur only at such time as a complete PSD
application is received by the permitting authority, which will be known
thereafter as the “'baseline date.” 

Comment:  The State of Michigan did not receive adequate notice of the
September 1994 public hearing.

Response:   EPA finds that the FCP Community provided adequate
opportunity for notice, comment, and consultation in light of the
outreach, public notice, opportunity for comment, and information
distributed by the FCP Community in preparation for making their request
to EPA for redesignation.

40 C.F.R. § 52.21(g)(2)(I) and 40 C.F.R.§ 51.102(d)(1) require that a
state or a tribe proposing to redesignate provide public notice of the
required public hearing by “prominent advertisement in the area
affected. . . .”  The FCP Community held its public hearing on
September 29, 1994.  Notices of the public hearing, as well as
notification of the public comment period and copies of supporting
documents, were sent to dozens of governmental entities and interest
groups in a letter dated August 26, 1994.  Entities noticed included EPA
Region 5, the States of Wisconsin and Michigan, the Bureau of Indian
Affairs, the U.S. Fish and Wildlife Service; nine Wisconsin Tribal
governments; nineteen counties and townships; local planning commissions
in Wausau, Eau Claire, and Green Bay, Wisconsin; and, many other
organizations.  The FCP Community also published notices of the
September 29, 1994, public hearing in four local newspapers, which ran
between August 29, 1994 and September 1, 1994.   Representatives from
many of these governmental entities and organizations provided comments
at the hearing or in writing. The FCP Community responded to these and
other comments received from private individuals and commercial entities
in its February 1995 “Responses to Common Questions and Issues in
Written Comments on the Proposed Forest County Potawatomi Community PSD
Class I Area Redesignation,” Technical Report at Appendix A.  For a
copy of this document, please visit the public docket of this
rulemaking.  

However, the State of Michigan questioned whether its office had
received sufficient advance notice of the public hearing in a letter
dated December 29, 1994.  The FCP Community responded by requesting that
the Michigan Department of Environmental Quality (MDEQ) offices on the
mailing list for the hearing provide confirmation of receipt of their
notice of the hearing.  By letter of March 1, 1995, MDEQ confirmed the
receipt of timely notice of the public hearing.  

Finally, while a commenter asserts that “the redesignation could
dramatically impact the economic well-being of Michigan residents
(Letter from Brian J. Renaud to Carleton Nash, September 12, 1997, at
3),” the commenter offers no evidence to support this statement, nor
does the commenter provide any reasons why the analysis of a variety of
sources (including energy and pulp and paper producers) conducted by the
FCP Community in its Technical Report is an inadequate basis upon which
to consider potential impacts of a Class I redesignation to Michigan
sources located within similar distances as other Wisconsin sources are
to the proposed Class I area.

  SEQ CHAPTER \h \r 1 Comment:  The FCP Community and EPA failed to hold
statutorily required public hearings in areas affected by the
redesignation.  This defect constitutes a violation of CAA Section
164(b)(1)(A).  

Response:  EPA disagrees.  CAA Section 164(b)(1)(A) provides that
“Prior to redesignation of any area under this part, notice shall be
afforded and public hearings shall be conducted in areas proposed to be
redesignated and in areas which may be affected by the proposed
redesignation.”  42 U.S.C. § 7474(b)(1)(A).  The FCP Community held
its hearing on the proposed redesignation on September 29, 1994, at the
Potawatomi Tribal Hall, in Crandon, Wisconsin. Notices of the public
hearing, as well as notification of the public comment period and copies
of supporting documents, were sent to dozens of governmental entities
and interest groups in a letter dated August 26, 1994.  Entities noticed
included EPA Region 5, the States of Wisconsin and Michigan, the Bureau
of Indian Affairs, the U.S. Fish and Wildlife Service; nine Wisconsin
Tribal governments; nineteen counties and townships; local planning
commissions in Wausau, Eau Claire, and Green Bay, Wisconsin; and, many
other organizations.  The FCP Community also published notices of the
September 29, 1994, public hearing in four local newspapers, which ran
between August 29, 1994 and September 1, 1994.  A transcript of the
hearing, notices (including copies of advertisements), letter
invitations, copies of comments received, a transcript of the hearing,
and response to comments was included in the FCP application for
redesignation.  Accordingly, EPA finds that the hearing held by the FCP
Community was adequate.  EPA also held two public hearings on the
proposed redesignation on August 12, 1997, in Carter, Wisconsin, and on
August 13, 1997, in Rhinelander, Wisconsin.  

In addition, since the reservation lands are located wholly within the
State of Wisconsin, EPA finds no basis in the CAA or its implementing
regulations to conclude that a tribe must hold a hearing in other states
in which the tribe has not proposed any lands for redesignation.

Comment:  Some commenters suggested that the meeting held by the FCP
Community on December 13, 1994 did not provide a fair and open process
for public comment.  

Response:  EPA disagrees.  The December 13, 1994 meeting was not a
public hearing, where public comment is expected, but instead a workshop
and consultation meeting.  The FCP Community held the “public
information workshop” and consultation meeting for federal, state, and
local governmental representatives at the Indian Springs Lodge, in
Carter, Wisconsin.  The purpose of this workshop was, to “ensure that
accurate information is available to the general public regarding [the
proposal to redesignate] this proposed action.”  In addition, the
notice for this workshop extended the public comment period on the
proposal to December 31, 1994, specifically to respond to several
commenters who had requested additional time to submit additional
comments.  See “Notice of Public Information Workshop on the Proposed
Class I Redesignation of the Forest County Potawatomi Community’s
reservation lands,” in Technical Report at Appendix A.  The official
public hearing about the redesignation, in which public comments are
accepted, was held by the FCP Community on September 29, 1994.  A
transcript of this hearing is included in the Tribe’s application. 

  SEQ CHAPTER \h \r 1 Comment:  The FCP Community did not consult
sufficiently with affected local governments prior to proposing the
redesignation request because all units of government should agree to
changes in air quality designation. 

Response:  EPA's rules specifically provide that a state or tribe has
“proposed the redesignation after consultation with the elected
leadership of local and other sub-state general purpose governments in
the area covered by the proposed redesignation.”  40 CFR 51.166(g) (2)
(v); see also 40 CFR 52.21 (g) (4) (i) (requiring tribe to follow
“procedures equivalent to those required of a state under paragraph
(g) (2). . . .”).  As discussed previously, the FCP Community met the
consultation requirements by holding a public hearing on the proposed
redesignation on September 29, 1994, at the Potawatomi Tribal Hall, in
Crandon, Wisconsin. Notices of the public hearing, as well as
notification of the public comment period and copies of supporting
documents, were sent to dozens of governmental entities and interest
groups in a letter dated August 26, 1994.  Entities noticed included EPA
Region 5, the States of Wisconsin and Michigan, the Bureau of Indian
Affairs, the U.S. Fish and Wildlife Service; nine Wisconsin Tribal
governments; nineteen counties and townships; local planning commissions
in Wausau, Eau Claire, and Green Bay, Wisconsin; and, many other
organizations.  The FCP Community also published notices of the
September 29, 1994, public hearing in four local newspapers, which ran
between August 29, 1994 and September 1, 1994.  A transcript of the
hearing, notices (including copies of advertisements), letter
invitations, copies of comments received, a transcript of the hearing,
and response to comments was included in the FCP application for
redesignation.  Accordingly, EPA finds that the hearing held by the FCP
Community was adequate.  

Numerous opportunities for input from local governments were also
provided in EPA’s public notice and hearing process on the proposed
rulemaking for the redesignation.  EPA held two public hearings on the
proposed redesignation on August 12, 1997, in Carter, Wisconsin, and on
August 13, 1997, in Rhinelander, Wisconsin.  EPA’s redesignation
proposal elicited numerous comments from state and local governments,
including staff of the state environmental agencies, local officials,
tribal officials, private industry, and the general public on a wide
range of procedural and substantive issues.  Specifically, comments were
received at the hearings or in writing from the following state, county,
and town governments:  Michigan Department of Environmental Quality, 
Wisconsin Department of Natural Resources, County Board of Florence,
Shawano Chamber of Commerce, Oshkosh Chamber of Commerce, Rhinelander
Chamber of Commerce, Marathon County Planning Department, Florence
County Board Chairman, Shawano County Board Chairman, Oneida County
Chairman, Mayor of the City of Shawano, Mayor of Antigo, Mayor of City
of Rhinelander, and the Villas County Chairman.  Comments also were
provided by a Wisconsin State Senator and Wisconsin State
Representative.  

  SEQ CHAPTER \h \r 1 Comment:  One commenter stated his belief that the
FCP Community and EPA failed to make a finding regarding areas which may
be affected by the proposed redesignation and thus failed to provide
appropriate notice to potentially affected areas. 

Response:  The commenter states that under proposed EPA regulations, a
source locating within 62 miles of a Class I area would be required to
provide notice to Class I federal and non-federal land managers within
several states and possibly nationally as well. The CAA requires States
or Tribes who wish to redesignate to consult with local and substate
general purpose governments in the area covered by the proposed
redesignation [52.21(g)(2)(v)(emphasis added)] and to provide a 30 day
advance notice of a public hearing to “other states, Indian Governing
Bodies, and Federal Land Managers whose lands may be affected by the
proposed redesignation.” See 40 CFR 52.21(g)(2)(ii).  The CAA and its
implementing regulations do not require either a tribe or EPA to make a
finding on what areas may be affected by a proposed redesignation. 
Neither the statute nor its implementing regulations define the
“affected area” of a Class I redesignation, much less define an
“affected area” to constitute the area within 62 miles from any
Class I area.  The lands covered by the proposed redesignation lie
wholly within Forest County, Wisconsin, and are comprised wholly of
reservation lands held in federal trust.   There is no additional
requirement in the CAA or in its implementing regulations that either
the FCP Community or EPA provide nationwide notice of a proposed
affected area, nor that EPA make a finding of a proposed affected area,
prior to proposing Class I redesignation.  In addition and as discussed
in previous sections, the FCP Community has met the requirements for
consultation and notification for public hearings as set out in the CAA.
 

  SEQ CHAPTER \h \r 1 Comment: The redesignation process for tribal
lands “should follow the original intent of Congress.” 

Response:  EPA agrees.

B.  Lands Suitable for Redesignation

Comment:  Several commenters, including the State of Michigan, asserted
that the lands proposed by the FCP Community for redesignation are too
small to allow effective air quality management and that therefore the
FCP Community’s request should be denied.

Response:  EPA disagrees.  The authority to redesignate a reservation is
not limited by any requirement that the reservation be a certain size. 
CAA Section 164(c).  However, when dispute resolution is triggered under
CAA Section 164(e), EPA “must consider the extent to which the lands
involved are too small to allow effective air quality management or have
Air Quality Related Values.”  Arizona v. EPA, 151 F.3d at 1209,
construing CAA section 164(e).  Thus EPA recognizes that this language
requires EPA to consider the size of a reservation in resolving a
dispute.

EPA believes it can evaluate the size of the lands in the proposed
redesignation area based upon the Agency's experience in the
Yavapai-Apache redesignation and other air quality planning
requirements.  EPA also notes that it is expected to use caution in
reversing redesignation requests in resolving disputes.  
“Redesignation of the Yavapai-Apache Reservation to a PSD Class I
Area; State of Arizona; Dispute Resolution, [hereafter “Yavapai
Dispute Resolution”],” 61 Fed.Reg. 56450, 56454-56455, (citing CAA
Legislative History, vol. 3 at 326) (November 1, 1996).    

Consistent with that, in the Yavapai-Apache redesignation dispute, EPA
rejected a state’s claim that reservation lands consisting of five
noncontiguous parcels totaling 632 acres, with the smallest having
3.7594 (less than four) acres should be disapproved.  EPA found that the
areas in question “were not too small to allow effective air quality
management or to have air quality related values.”  Arizona v. EPA,
151 F.3d at 1210 (citing EPA finding with approval).  

In its decision to grant the Class I redesignation request for the
Yavapai-Apache reservation, EPA examined whether it would be difficult
to perform a PSD air quality modeling analysis that assessed the impacts
of a proposed source in such a situation. The EPA concluded that, based
on the modeling tools available at that time, it would be relatively
simple and practicable for a proposed source to project its impact on
the Class I area parcels and evaluate the analysis.  See Yavapai Dispute
Resolution, 61 Fed. Reg. at 56457-56458.  Moreover, current air quality
planning and management tools have become increasingly sophisticated and
refined and apply to a variety of area sizes and configurations, ranging
from a single facility to large metropolitan areas.  For example, EPA,
in coordination with states has established nonattainment areas in
states for the purpose of implementing nonattainment planning
requirements for the lead National Ambient Air Quality Standards (NAAQS)
that encompass areas of only a few square kilometers.  See e.g., 40 CFR
81.310 and 40 CFR 81.311.  Conversely, there is an ozone transport
region under the CAA for the purpose of ozone nonattainment planning
that spans from Maine to northern Virginia.  See section 184(a) of the
CAA. Thus, EPA is reluctant to establish rigid criteria regarding the
geographic size, geographic orientation, or population size of a Class I
area that would automatically disqualify certain tribes (or states) from
exercising the authority conferred under section 164(c) to redesignate
lands within the Reservation.  Arizona v. EPA, 151 F.3d at 1210.  

The FCP Community lands are similar to the lands in Yavapai in
containing noncontiguous parcels of various sizes.  However, the lands
proposed for redesignation by the FCP Community are many times larger,
with a total acreage in excess of 10,000 acres, compared with the 632
acres in Yavapai.  The smallest FCP Community parcel proposed for
redesignation is 80 acres, which is more than twenty times larger than
the 3.7594 acre parcel in Yavapai.  EPA recognizes the limits of fact
matching, and does not believe that comparing acreage is necessarily
dispositive in all cases.  Nevertheless, it believes that based on both
the result and the rationale in Arizona v. EPA, it has no basis for
disapproving the redesignation based on size.  EPA concludes that the
size of the FCP Community lands is not too small to allow effective air
quality management or to have AQRVs. 

  SEQ CHAPTER \h \r 1 Comment:  Several commenters stated that lands
subject to redesignation are limited to reservation lands, and claimed
that the area proposed for redesignation does not meet that requirement.

Response:  Section 164(c) of the CAA provides that “Lands within the
exterior boundaries of reservations of federally recognized Indian
tribes may be redesignated. . . .”  42 U.S.C. § 7474(c).  The PSD
regulations define “Indian Reservation” as “any federally
recognized reservation established by Treaty, Agreement, executive
order, or act of Congress.”  See 40 CFR Section 52.21(b)(27). 

 

In response to comments raised during the public comment period, EPA
sought further information from both the FCP Community and the Bureau of
Indian Affairs regarding the status of lands proposed by the FCP
Community for redesignation.  By letter of February 24, 1998, the FCP
Community provided documents describing the parcels subject to the
proposed redesignation. This information provided the following
historical background.  

On August 6, 1987, the Senate enacted Senate Bill 1602 providing that
the trust lands purchased pursuant to 38 Stat. 102 are “hereby
declared to be the reservation of the Forest County Potawatomi Community
of Wisconsin.” The majority of the land set aside for the FCP
Community is located in Forest County, Wisconsin, and although there are
FCP Community tribal lands located outside Forest County, these parcels
are not included in the current redesignation proposal.

As referenced above, on March 19, 1998, EPA sent a written request for
an opinion from the Department of Interior (DOI) on the legal status of
the parcels of land at issue in the FCP Community’s proposed
redesignation.  EPA’s letter requested that DOI provide a written
determination “to ensure that all the parcels submitted for
redesignation meet the requirements of Section 164 of the CAA.” 
Enclosed with EPA’s letter was a map compiled by S. Funk, dated
12/13/1994, which had been submitted in the FCP redesignation request. 
By letter of April 16, 1998, from Robert Jaeger, Superintendent of the
Bureau of Indian Affairs (BIA) Great Lakes Agency, to David Kee,
Director of EPA Region 5's Air and Radiation Division, BIA stated as
follows:

All of those lands identified on that [S. Funk] map as tribal trust meet
the criteria of Section 164(c) of the CAA as so stated.  The parcels
noted as tribal trust have all been designated reservation land by
proclamation of the Assistant Secretary.

EPA therefore concludes that all of the lands included in the Tribe’s
redesignation submittal are lands encompassed within the FCP Community
reservation and which are held in trust for this tribe.

  SEQ CHAPTER \h \r 1 Comment:  Many commenters stated that Class I
designation is limited to national parks, monuments, wilderness areas,
land areas exceeding 5,000 acres in size, or lands meeting a threshold
“uniqueness or pristine” characterization. 

Response:  EPA disagrees.  The limitation that national parks,
monuments, and wilderness areas of lands must be 5,000 acres in size or
more only applies to mandatory Federal Class I areas and the Clean Air
Act automatically set aside these areas as Class I.  Moreover, the Act
specifically allowed a state or tribe to redesignate its lands to Class
I without prescribing a minimum size threshold.

  SEQ CHAPTER \h \r 1 Comment:  One commenter asserted that the FCP
Community must justify its selection of each parcel proposed for Class
I, and specify why others were not proposed.

  SEQ CHAPTER \h \r 1 Response:  Pursuant to Section 164(c) of the CAA,
42 U.S.C. § 7474(c), the appropriate Indian governing body of a
federally recognized tribe may redesignate lands within the exterior
boundaries of its reservation.  The statute and regulations governing a
tribe or state’s proposed redesignation do not require the tribe or
state to justify why lands not included in the proposal to redesignate
have been excluded.

Comment:  The FCP Community commented that the Class I redesignation
request should not be limited to specific parcels, but rather all lands
within the exterior boundaries of the FCP Community’s reservation
should be redesignated to Class I and any trust lands FCP requires in
the future should automatically be redesignated as Class I without
having to follow the redesignation process in 40 CFR 52.21(g).  

Response:  EPA disagrees.  EPA believes that a state or tribe is
required to submit a new redesignation request and follow all of the
procedural steps to redesignate additional parcels not covered by a
previous request where, as here, a Tribe has requested redesignation of
specified parcels, and not its entire reservation.  In addition, EPA
would be required to follow the public notice and comment procedures set
out by Congress in section 164(b)(2) of the CAA to review the new
request prior to making its determination whether to grant the request. 
Therefore, any additional lands which are placed into trust for the FCP
Community would require the FCP Community to submit a new redesignation
request.

Comment:  The FCP Community commented that three of the listed parcels,
numbers 8, 26 and 27, have been incorrectly identified either in the
description of lands provided in the Tribe’s letter of February 24,
1998, or in EPA’s list of parcels proposed for redesignation published
in the December 18, 2006 proposed rulemaking.  

Response:   The lands are, however, correctly identified on the December
13, 1994, S. Funk map provided by the Tribe with its redesignation
request.  This map was specifically reviewed by the Bureau of Indian
Affairs, Minneapolis District office, which certified that the lands
marked for proposed redesignation are lands held in trust for the Tribe.
 Letter from Robert Jaeger, Superintendent, Bureau of Indian Affairs to
David Kee, Director, Region 5 Air and Radiation Division on April 16,
1998.  This map has been available for public notices and comment during
the pendancy of this rulemaking.  Accordingly, EPA has corrected the
legal description of parcel numbers 8, 26, and 27 in the list of lands
redesignated to Class I pursuant to this action.

C.  EPA’s Role in Evaluating Class I Redesignations

Comment:  Several commenters argued that Class I redesignation would
unfairly burden the economy or tax base of the area surrounding the
reservation and that EPA should have an independent role in either
examining substantive claims made about economic impacts and
“balancing” the request against such impacts, or EPA should perform
an independent economic impact or technical analysis of a Class I
redesignation request.  

Response:  EPA disagrees.  The CAA does not provide EPA with a role for
weighing competing economic claims or independently modeling technical
data in the course of evaluating a request for Class I redesignation,
nor does EPA believe that it is required to speculate about the economic
or tax impact of Class I redesignation as part of its decision in
whether to grant or deny a request for Class I redesignation. 

 

Additionally, under the existing PSD Class II designation, new major
sources or major modifications in the area are already subject to the
PSD program, and Class I status does not affect which sources would be
subject to PSD.  For that reason, no new permits and no new substantive
requirements would apply as a result of a redesignation of reservation
lands.  Major stationary sources proposing to locate in any PSD area,
regardless of whether they are Class II or Class I, must still conduct
the same type of analyses and use the best available control technology.
 PSD permit applicants already are required to perform a modeling
analysis to ensure that the Class II increments are protected, which
means they are required to gather the necessary data and conduct studies
on air quality for the Class II analysis.  A change from Class II to
Class I designation only affects the level of maximum allowable
increases over baseline concentration.   Complying with Class I
requirements may require adding extra receptor points to a model to
analyze the effect of potential emissions on the Class I area and ensure
that the Class I increments are also protected, but the cost of this
additional component of an increments analysis should be relatively
small.  Since every major source locating in a Class II area is already
required to utilize BACT air pollution controls, proximity to a Class I
area generally would not affect the level of control required. Thus, as
a general rule, redesignation should not impose additional control costs
on a source.

 

However, in its responses to public comments following its public
hearing, the FCP Community addressed the impact of Class I redesignation
on projected cumulative growth of several existing area industries.  In
its own Response to Comments document, the FCP Community concluded that:

“Even if all fifteen of these projects are developed at the same time,
the cumulative impact on the reservation will only be approximately 60
percent of the allowable Class I increments.  Stated once again, the
redesignation will primarily affect only very large industrial projects
located within approximately 10 km of the reservation.  Multiple large
projects can still be developed when the distances from the reservation
are on the order of 50 km or greater. [Emphasis in original].”

The FCP Community conducted additional analysis, submitted to EPA with
their comments on the proposed FIP on April 27, 2007, demonstrating that
management of the more protective air quality standard of a Class I area
does not preclude economic growth.  For example, many prosperous
communities are in Class II areas located adjacent to Class I areas. 
Such areas include: Tucson, Arizona, and seven Class I areas either
within or adjacent to the Los Angeles metropolitan area.  See Footnote 4
above.

Comment: The State of Michigan commented that EPA has not proved that
the proposed Class I redesignation would not result in an impact of $100
million or more on the economy of Michigan.

Response:  EPA does not need to make such a finding.  This action is not
a "significant regulatory action" under the terms of Executive Order
(EO) 12866 (58 Fed. Reg. 51735, October 4, 1993) and is therefore not
subject to review under the EO, which would include an analysis of
whether the proposed action would have such an economic impact. 
However, as part of its application package for Class I redesignation,
the FCP Community prepared an analysis of the potential costs and
benefits associated with this action on the affected region (Forest
County and those counties bordering Forest County).  This analysis
directly supports a finding that the impact of the proposed
redesignation would not result in an adverse annual impact to the
economy of $100 million or more. See EPA Memorandum dated October 25,
2004 in the public docket for this action.

As discussed in greater detail in the memorandum, the FCP Community’s
analysis identifies those economic sectors with the largest employment
in the area.  These are industry, manufacturing and trade, which
together account for 46% of the jobs in the affected area.  To evaluate
the effect of Class I redesignation on economic expansion and future
industrial plant development in the affected area, the FCP Community
prepared an independent air dispersion modeling analysis to determine
the air quality impacts on the Class I area from various new projects. 
These included a 250-ton-per-day paper mill, three different types of
power plants, and a mining project.

The modeling and screening results analyzed indicate that the proposed
Class I redesignation should not have major effects on economic
expansion and industrial development in the region.  The redesignation
could restrict the siting of large paper mills and large coal-fired
powered plants to at least 10 km from the reservation, and would limit
the development of multiple projects that would have an unacceptable
cumulative effect on the Class I increments, but none of the known
proposed developments in the region would be adversely affected.

Comment:  Several commenters alleged that EPA is unable to fairly
evaluate a tribal request for redesignation because of the Agency’s
trust responsibility to Indian tribes.  

Response:  EPA disagrees.  In considering the FCP Community’s
redesignation request, EPA believes that it has performed all of its
responsibilities as required by the statute.  In carrying out its
responsibilities, EPA has acted in accordance with its policies of
working directly with the FCP Community on a government-to-government
basis and acknowledging that the FCP Community has primary
responsibility for making decisions that will affect the reservation
environment.  Since there is no separate trust responsibility
requirement in the CAA, which is a statute of general application and
not specifically aimed at protecting Indian tribes, EPA has fulfilled
its trust responsibility by performing its responsibilities under the
CAA before approving the redesignation.

Comment:  Some commenters argue against the redesignation because they
believe that the economic impact of Class I redesignation would affect
residential, agricultural, and small businesses and small business
growth in the area or the State of Wisconsin.   

Response:  EPA disagrees.  First, as stated above, The CAA gives EPA
only a very limited role in reviewing a redesignation request.  As a
general rule, EPA can “disapprove the redesignation of any area only
if [it] finds, after notice and opportunity for public hearing, that
such redesignation does not meet the procedural requirements” in  CAA
section 164(b) and 40 CFR 52.21.  “Once these procedural requirements
are met, EPA must approve the request for redesignation.”  Arizona v.
EPA  151 F3d at 1208.   EPA cannot “re-weigh the effects of a proposed
redesignation or second-guess a tribe’s decision to redesignate its
reservation lands.”  Id. at 1212. 

   

Second, analyses included in the FCP Community’s Technical Report show
that only large stationary sources proposing to locate in close
proximity to the Reservation would be affected by the redesignation and
regardless of whether they are in a Class II or a Class I area, such
major sources are already required to obtain an air quality permit,
conduct modeling analyses, and use the best available technology to
control emissions under the PSD program. in terms of other businesses,
the redesignation will not affect mobile emission sources such as cars
because no vehicle inspection and maintenance (smog-check) programs
would be required.  In addition, redesignation would not limit the home
use of wood-burning stoves, nor would it create restrictions on
controlled forest burning, or require dirt roads to be paved to reduce
dust and particulates.  Thus, home and small business owners in nearby
communities should not be affected by a Class I designation of
Reservation lands.  Furthermore and as explained above, economic
impacts, including impacts on minor sources, are not within the scope of
EPA’s review when evaluating a redesignation request.  

Comment:  Many commenters asserted that it is inappropriate for EPA to
consider the Forest County Potawatomi redesignation, or any
redesignation request, until EPA promulgates final rules to define lands
suitable for redesignation, provide guidance on EPA’s evaluation of
redesignation requests, and provide regulations for implementation of
non-federal Class I areas.  

Response: EPA disagrees.  CAA Section 164 (c) authorizes a tribe to
redesignate lands within the exterior boundaries and 40 C.F.R. 52.21
provides regulations for implementing that authority.  There is no need
for EPA to develop additional regulations or issue guidance.  Moreover,
the CAA gives EPA only a very limited role in reviewing a redesignation
request.  As a general rule, EPA can “disapprove the redesignation of
any area only if [it] finds, after notice and opportunity for public
hearing, that such redesignation does not meet the procedural
requirements” in  CAA section 164(b) and 40 CFR 52.21.  “Once these
procedural requirements are met, EPA must approve the request for
redesignation.”  Arizona v. EPA, 151 F3d at 1208.   EPA cannot
“re-weigh the effects of a proposed redesignation or second-guess a
tribe’s decision to redesignate its reservation lands.”  Id. at
1212. Thus, EPA cannot deny a redesignation requests based on pending
regulatory actions.   

  SEQ CHAPTER \h \r 1 Comment:  One commenter argued that EPA should
require the same level of documentation for tribal and state Class I
redesignations as the Agency requires when evaluating a state request to
go from non-attainment to attainment status because both are actions to
“upgrade the designation.” 

Response:  Regulations for changing a designation from non-attainment to
attainment status are found at CAA Section 107(d)(3)(E).  This section
contains five criteria that have to be met before an area can be
redesignated from nonattainment to attainment.  In addition, states are
required to submit a maintenance plan under Section 175(A), for any area
requested for redesignation from nonattainment to attainment.  The
maintenance plan shall contain measures to ensure such maintenance for
al least 10 years after the redesignation.  These regulations and
criteria are not the same as those governing the process for a tribe or
state to request a PSD redesignation, which are found at Section 164. 
The implementing regulations for a State or Tribal redesignation of a
PSD classification are found in 40 CFR 52.21(g)(4).  These two actions
are regulated separately under the CAA, and have different standards and
requirements.

D.  Impact of Dispute Resolution on Redesignation

Comment:  The State of Michigan commented that for EPA to impose the
terms of the FCP Community-Wisconsin Memorandum of Agreement (FCP
Community-Wisconsin MOA) on the state of Michigan would be
unconstitutional because it would subject Michigan citizens to a federal
land manager, tribal land manager or a scientific panel pursuant to an
“unconfirmed administrative process” and thus would be in violation
of due process clause and would violate Michigan’s sovereignty.

Response:  This action does not impose the terms of the FCP
Community-Wisconsin MOA on Michigan.  

Comment:  EPA has no authority to waive the Class I increment or define
the Class I increment as applying within a radius of 10 miles of the
reservation because the NSR Workshop Manual states: “If a proposed
major source or major modification may affect a Class I area, the
Federal regulations require the reviewing authority to provide written
notification of any such proposed source to the Federal Land Manager
(and the DOI and USDA officials delegated permit review responsibility).
 The meaning of the term “may affect” is interpreted by EPA policy
to include all major sources or major modifications which propose to
locate within 100 kilometers (km) of a Class I area.”

Response:   The commenter is mistaken in two respects.  First, the NSR
Manual was never finalized and was never intended to establish final
agency or authoritative interpretations of EPA regulations. 72 Fed. Reg.
31372, 31379-31380 (June 6, 2007).  Thus, it does not establish any
regulatory requirement that the proposed redesignation would violate. 

The second reason the comment is mistaken is because, as explained more
fully in the notice announcing resolution of the dispute between
Wisconsin and the Tribe over the redesignation, a dispute under CAA §
164(e) can be resolved by adopting the terms of the agreement between
the parties to the dispute.  The statute provides that where a Governor
or tribal ruling body “request[s] the Administrator to enter into
negotiations with the parties involved to resolve [a] dispute” over a
redesignation, “the results of agreements” reached by the parties
“shall become part of the applicable plan.”   

The State requested EPA to resolve a dispute with the Tribe over the
effects of the redesignation. In that process, the State of Wisconsin
and the FCP Community entered into a Memorandum of Agreement for
implementation of the proposed Class I area in Wisconsin.  Those
provisions have been summarized by EPA as follows:

[T]he agreement between the FCP Community and Wisconsin subjects all
major sources in Wisconsin located within a ten (10) mile radius of any
redesignated Tribal land to performing an increment analysis and to
meeting consumption requirements applicable to a Class I area.  Major
sources located outside of ten (10) miles are subject to increment
analysis and consumption requirements applicable to any redesignated
Tribal land as if it were a Class II area.  Also under the agreement,
all major sources within sixty-two (62) miles are subject to an analysis
of their impact on air quality related values (AQRVs) of the
redesignated Tribal lands to determine if they will have an adverse
impact on these AQRVs.  

71 Fed. Reg. 75696.  As these special provisions differ from
Wisconsin’s currently approved SIP for the PSD program, for this
portion of the FCP Community-Wisconsin MOA to become enforceable will
require revision of the Wisconsin SIP, which otherwise would not
recognize a limitation of the area in which the Class I increment
analysis must be conducted.

EPA takes the position that it generally will not interfere with the
agreements reached between Tribes and States through the CAA’s 164(e)
dispute resolution process.  However, to the extent that the agreement
reached under the terms of the MOA allows for restricting the
requirements normally associated with Class I areas as these apply to
sources located outside a 10-mile radius of the redesignated reservation
lands, EPA takes the position that a revision of the Wisconsin SIP will
be necessary to apply this provision to potential sources located
outside the boundaries of the redesignated parcels.  

Comment:  The FCP Community-Wisconsin MOA should encompass all Wisconsin
major sources (Forest County Potawatomi 2007; Michigan 2007).

Response:  EPA takes the position that it generally will not interfere
with the agreements reached between tribes and states through the
CAA’s 164(e) dispute resolution process.  

The FCP Community-Wisconsin MOA currently does not list any specific
sources, rather the agreement sets out a process that the parties will
use to address potential impacts to the Class I area from certain major
sources.  Should the parties wish to modify the agreement to address
specific (or all) major sources, they may do so.  

Comment:  EPA has an obligation to model the impact of the proposed
Class I area on Michigan.  Additionally, since FCP modeling showed that
sources outside 10 miles wouldn’t impact the proposed class I area,
EPA can’t impose a Class I increment on sources in Michigan which are
farther out than 10 miles.

Response:  EPA does not agree.  The CAA gives EPA only a very limited
role in reviewing a redesignation request.  As a general rule, EPA can
“disapprove the redesignation of any area only if [it] finds, after
notice and opportunity for public hearing, that such redesignation does
not meet the procedural requirements” in  CAA section 164(b) and 40
CFR 52.21.  “Once these procedural requirements are met, EPA must
approve the request for redesignation.”  Arizona v. EPA, 151 F3d at
1208.   EPA cannot “re-weigh the effects of a proposed redesignation
or second-guess a tribe’s decision to redesignate its reservation
lands.”  Id. at 1212.  Accordingly, there is no requirement that EPA
perform any additional modeling in an attempt to “second-guess” the
Tribe’s redesignation request.

Where a neighboring state or tribe disagrees with the proposed
redesignation of an area, sections 164(e) provides a narrow exception to
that general rule of limited EPA review, but even this slightly enlarged
authority does not encompass the type of substantive review the
requestor is seeking. Examining these two provisions together, EPA
believes that where there is a dispute, it must first consider whether
to resolve the dispute by disapproving the redesignation, based on the
factors identified in 164(e).  If EPA resolves the dispute in favor of
the party requesting redesignation, the dispute is terminated, and the
only remaining question is whether the Tribe met the procedural
requirements of 164(b)(2).  Because that inquiry involves only
procedural adequacy, when EPA conducts that second inquiry, it cannot
consider any information relating to any matter other than procedure,
even if that information was considered in the dispute resolution. 
Accordingly, where, as here, the state and tribe are unable to reach an
agreement, EPA does not have the authority under Section 164(e) to
impose substantive conditions on the state (such as those the state
objects to in its first comment in this section). 

Comment:  EPA should resolve the Michigan-Forest County Potawatomi
dispute in favor of the tribe because of Michigan’s delay and/or
refusal to participate in dispute resolution and because the lands
proposed for redesignation have AQRVs.

Response:  As discussed above, the CAA gives EPA only a limited role in
reviewing redesignation requests, even where a dispute is triggered
under CAA Section 164(e).  Neither bad behavior, nor the presence of
AQRVs, are criteria which EPA considers in reviewing a redesignation
request or resolving a dispute.

Comment:  EPA should incorporate full text of WI/FCP MOA into a TIP/FIP.

Response:  The terms of the agreement are not appropriate for inclusion
in a FIP because they do not apply to the effects of the Class I
Redesignation on the reservation lands reclassified to Class I.  Rather,
the agreement establishes certain special provisions regarding the
effects of the Class I redesignation on potential sources outside the
redesignated area.  Those provisions have been summarized by EPA as
follows:

[T]he agreement between the FCP Community and Wisconsin subjects all
major sources in Wisconsin located within a ten (10) mile radius of any
redesignated Tribal land to performing an increment analysis and to
meeting consumption requirements applicable to a class I area.  Major
sources located outside of ten (10) miles are subject to increment
analysis and consumption requirements applicable to any redesignated
Tribal land as if it were a class II area.  Also under the agreement,
all major sources within sixty-two (62) miles are subject to an analysis
of their impact on air quality related values (AQRVs) of the
redesignated Tribal lands to determine if they will have an adverse
impact on these AQRVs.  

71 Fed. Reg. 75696.  For this portion of the WI-FCP Community MOA to
become enforceable, as these special provisions differ from
Wisconsin’s currently approved State Implementation Plan (SIP) for the
PSD program, will require revision of the Wisconsin SIP.  This SIP
otherwise would not recognize a limitation of the area in which the
Class I increment analysis must be conducted.

Comment:  The State of Wisconsin should retain authority for
implementation of any MOA.

Response:  Following this rulemaking granting Class I status to FCP
Community reservation lands, the States of Wisconsin and Michigan will
remain, for their respective lands, the permitting authorities for
sources located outside the FPC Community reservation.  EPA will remain
the federal permitting authority for proposed sources locating within
the FCP Community reservation boundaries until the FCP Community applies
for and receives delegation of this authority.  With respect to
implementation of the FCP Community-Wisconsin MOA, EPA takes the
position that it generally will not interfere with the agreements
reached between tribes and states through the CAA’s 164(e) dispute
resolution process.  The FCP Community-Wisconsin MOA does not alter the
State’s authority to implement the Wisconsin CAA program.  

E.  Appropriate Mechanism for Codifying Class I Area

Comment:  The Use of a FIP to codify a tribal class I area is
inappropriate because the CAA only provides for use of Tribal
Implementation Plans to implement CAA programs in Indian country, a
position several commenters argue is supported by the 9th Circuit’s
Arizona v. EPA decision.

Response:  EPA disagrees.  Section 164 of the CAA, affords states and
tribes the right to request that EPA redesignate lands under their
control.  If all procedural requirements are met, EPA must approve this
request.  

Before the FCP Community submitted this request for redesignation from
Class II to Class I the Yavapai-Apache Tribe of Arizona submitted such a
request, and on October 2, 1996, EPA approved the request. The State of
Arizona, within which the Yavapai-Apache lands were located, had raised
objections to the redesignation and requested to enter into section
164(e) dispute negotiations with the Yavapai-Apache Tribe. EPA held a
meeting with the parties, but ultimately no agreement was reached. EPA
was forced to resolve the dispute, and did so by granting the
redesignation request and codifying the redesignation in a FIP. Yavapai
Redesignation, 61 Fed. Reg. 56461 and Yavapai Dispute Resolution, 61
Fed. Reg. 56450. The State of Arizona continued to dispute the approval
of the reservation to Class I and filed a suit before the United States
Court of Appeals for the Ninth Circuit.  The Ninth Circuit's decision
stated, among other things, that EPA had not abused its discretion by
approving the Tribe’s redesignation request but that EPA should have
codified the Class I area in a TIP rather than a FIP, and remanded the
redesignation back to the EPA regional office so that EPA could follow
the appropriate procedures for promulgating the Class I area as a TIP.

   

On February 12, 1998, however, EPA promulgated a final rule under
section 301 of the CAA entitled, “Indian Tribes: Air Quality Planning
and Management.” 63 Fed. Reg. 7254 (Feb. 12, 1998). This rule,
generally referred to as the “Tribal Authority Rule” or “TAR,”
discusses those provisions of the CAA for which it is appropriate to
treat Indian Tribes in the same manner as States and establishes the
requirements that Indian Tribes must meet if they choose to seek such
treatment.  The EPA also concluded with this rule that certain
provisions of the CAA should not be applied to Tribes in exactly the
same manner in which they were applied to States. One of those
provisions was CAA 110(c)(1), which provides the Administrator with the
authority to promulgate a FIP within 2 years of finding that a State
plan is insufficient. 63 Fed. Reg. at 7265. EPA reasoned that tribes,
unlike states, “in general are in the early stages of developing air
planning and implementation expertise” because the specific authority
for tribes to establish air programs was first expressly addressed in
1990. Id. at 7264-7265. Because tribes were only recent participants in
the process, EPA determined it would be inappropriate to hold them to
the same deadlines and Federal oversight as the states. Id. at 7265.  
EPA noted, however, that it was “not relieved of its general
obligation under the CAA to ensure the protection of air quality
throughout the nation, including throughout Indian country.” Id.  EPA
concluded that the Agency could “act to protect the air quality
pursuant to its ’gap-filling’ authority under the CAA as a whole”
and that “section 301(d)(4) provides EPA with discretionary authority,
in cases where it has determined that treatment of Tribes as identical
to states is ’inappropriate or administratively infeasible,’ to
provide for direct administration through other regulatory means.” Id.


Under that authority, EPA adopted 40 CFR 49.11, which established the
framework for adoption of FIP provisions for Indian Country: “[The
Administrator] [s]hall promulgate without unreasonable delay such
Federal implementation plan provisions as are necessary or appropriate
to protect air quality, consistent with the provisions of section 304(a)
(sic 301(a)) and 301(d)(4), if a tribe does not submit a tribal
implementation plan meeting the completeness criteria of 40 CFR 51,
Appendix V, or does not receive EPA approval of a submitted tribal
implementation plan.” 40 CFR 49.11(a). The intent of this provision
was to recognize that tribes may not initially have the capability to
implement their own delegated CAA programs and that the TAR does not
relieve EPA of its general obligation under the CAA to protect air
quality throughout the nation, including in Indian country. See 63 Fed.
Reg. 7265.    Therefore, the TAR established two possible routes for the
codification of a Class I redesignation on Tribal lands: (1) A TIP, if
one has been developed by the Tribe and approved by EPA; and (2) A FIP,
if a TIP did not exist and a FIP was necessary to protect air quality.

For that reason, and consistent with the approach detailed in the TAR,
the FCP Community sent a letter to Francis X. Lyons, Regional
Administrator of EPA Region 5, requesting that EPA promulgate the
requested redesignation of the proposed Class I area parcels in a FIP. 
In this letter, the FCP Community asked EPA to promulgate the Class I
area redesignation into a FIP, as opposed to utilizing a TIP, because
the FCP Community was continuing to build its capacity and
infrastructure to run its air program and was not yet ready to submit
its own TIP.  On August 23, 1999, EPA sent a letter to the FCP Community
agreeing that a FIP would be an appropriate option for implementing the
Class I area should EPA grant the FCP Community’s request.  On
December 18, 2006, EPA published a supplemental proposal seeking comment
on the proposed codification of the FCP Community redesignation in a
FIP.  71 Fed. Reg. 75694 (December 18, 2006).  In that proposal, EPA
expressed its view that, consistent with the TAR, until such time as the
FCP Community develops a TIP and has it approved, EPA retains the
authority to promulgate the redesignation approval in a FIP.

  

The PSD program is implemented in Wisconsin under an EPA approved SIP
which excludes all of Indian country within the state.  In the December
18, 2006 proposal, EPA explained:

Wisconsin initially implemented the Federal PSD program under a
delegation of authority from EPA.  Wisconsin subsequently submitted a
PSD rule and program which EPA approved for all sources in Wisconsin
except for sources located in tribal lands and other sources that
require permits issued by the EPA.  See 64 Fed. Reg. 28748 (May 27,
1999).  The current EPA regulations addressing the PSD program in
Wisconsin are found at 40 CFR 52.2581.  

71 Fed. Reg. 75694, 75698.  Therefore, EPA’s December 18, 2006
proposal to codify the Forest County Potawatomi Class I area is an
amendment to an existing FIP for Wisconsin Indian country, rather than
the promulgation of a new FIP.

    

For those reasons, EPA does not agree with any suggestion that
promulgation of a FIP cannot be the mechanism for implementing a
redesignation of tribal lands as Class I.  As discussed previously in
this section, the FCP Community has formally requested EPA approval of
the Tribe’s request that EPA redesignate certain reservation lands and
has demonstrated that it has met the necessary procedural requirements. 
EPA’s promulgation of a FIP, at the Tribe’s express request because
it is not yet ready to develop its own TIP, does not supplant the Indian
governing body’s role in making the decision to request EPA approval
of the redesignation.

  

Comment:  The use of a FIP is inappropriate because section 164(c) of
the CAA states that only the appropriate Indian governing body may
redesignate reservation lands, which, the commenter suggests, leaves no
role for EPA.  

Response:  The commenter is mistaken.  Section 164 of the CAA sets out
the requirements for non-federal land redesignations and clearly
specifies that the decision to redesignate will be made by the
appropriate State or Indian governing body following certain procedural
steps, discussed in Section IV.A of the rulemaking, and that EPA makes
the decision whether to approve the redesignation.   The Tribe has
requested the redesignation and EPA has approved it.  That is fully
consistent with CAA section 164(b)(2). 

Comment:  One state commenter, citing 71 Fed. Reg. 75698, asserts that a
FIP is inappropriate in this case because it is not “necessary” to
protect the air quality of the lands proposed for redesignation because
these lands are already protected as Class II areas under the CAA.  

Response:  EPA does not agree.  As the FCP Community’s request for
redesignation makes clear, the FCP Community is seeking greater
protection for these lands than is presently provided under their Class
II classification.  Section 164(c) of the CAA provides that States and
Tribes may redesignate lands of their choosing where they meet the
procedural requirements for redesignation.  

Comment:  A state commenter argues that the use of a FIP is
inappropriate because the Tribal Air Rule (TAR) addresses only “tribal
air quality programs” and Class I redesignation is not such a program.
 

Response: EPA disagrees.  40 CFR 49.11 states in pertinent part that
“[The Administrator] [s]hall promulgate without unreasonable delay
such Federal implementation plan provisions as are necessary or
appropriate to protect air quality. . . if a Tribe does not submit a
tribal implementation plan. . . .”  (emphasis added).  Where, as here,
the FCP Community has declined to submit a TIP, a FIP is an appropriate
mechanism to protect the air quality of the redesignated Class I lands 
.

Comment:  Promulgation of any rule, including 49.11 of the TAR, to the
degree it provides that a TIP may substitute for a FIP is “in excess
of the EPA’s CAA authority.”  

Response:  EPA disagrees.  Please see the first response in section E
addressing the requirement of a TIP versus a FIP.

Comment: EPA received several comments on language to be used in the
implementation plan.  The FCP Community states that EPA has used out of
date language in the proposed FIP and therefore any FIP should use the
current language for 40 CFR 52.2581.  

Response:  EPA agrees.  EPA’s proposed language in the December 18,
2006 rulemaking stated in pertinent part the following modification to
the FIP for the PSD program in Wisconsin:

(e) Regulations for the prevention of the significant deterioration of
air quality.  The provisions of § 52.21(b) through (w) are hereby
incorporated and made a part of the applicable State plan for the State
of Wisconsin for sources wishing to locate in Indian country; and
sources constructed under permits issued by EPA, except as specified in
paragraph (f) of this section.

(f) Forest County Potawatomi Community reservation lands 80 acres and
over in size and located in Forest County are designated as a Class I
area for the purposes of prevention of significant deterioration of air
quality.  The individual parcels listed below all consist of a
description from the Fourth Principal Meridian. . . .

(8) Section 2 of T36N R13E… 

(26) N ½ of Section 22 of T35N R16E…

(27) SE ¼ of Section 22 of T35N R16E…

The current language for 40 CFR 52.2581 provides:

(e) Regulations for the prevention of significant deterioration of air
quality.  The provisions of  § 52.21 except paragraph (a)(1) are hereby
incorporated and made a part of the applicable State plan for the State
of Wisconsin for sources wishing to locate in Indian country;  and
sources constructed under permits issued by EPA.

EPA agrees the current language should be the starting point to any
modification of this provision.



Comment: The FCP Community stated that EPA’s proposed FIP language
“creates ambiguity regarding whether the requirements of 40 CFR 52.21
apply to the FCP Community’s Reservation.”

Response:  EPA intends that the requirements of 40 CFR 52.21 apply to
the parcels redesignated as Class I, and has modified the proposed FIP
language accordingly to remove the phrase “except as specified in
paragraph (f) of this section.”  The revised rulemaking text is as
follows:

(e) Regulations for the prevention of significant deterioration of air
quality.  The provisions of § 52.21 except paragraph (a)(1) are hereby
incorporated and made a part of the applicable State plan for the State
of Wisconsin for sources wishing to locate in Indian country; and
sources constructed under permits issued by EPA.

(f) Forest County Potawatomi Community reservation lands 80 acres and
over in size and located in Forest County are designated as a Class I
area for the purposes of prevention of significant deterioration of air
quality.  The individual parcels listed below all consist of a
description from the Fourth Principal Meridian. . . . .

Comment:  A SIP cannot be used in conjunction with a FIP to redesignate
lands to Class I .

Response:  EPA disagrees.  EPA takes the position that it generally will
not interfere with the agreements reached between tribes and states
through the CAA’s 164(e) dispute resolution process.  However, to the
extent that the agreement reached under the terms of the FCP
Community-Wisconsin MOA allows for restricting the requirements normally
associated with Class I areas as these apply to sources located outside
a 10-mile radius of the redesignated reservation lands, EPA takes the
position that a revision of the Wisconsin SIP will be necessary to apply
this provision to potential sources located outside boundaries of the
redesignated parcels.  

Comment:  If the Tribe doesn’t have the capacity to apply for
authority for a TIP, then the Tribe doesn’t have the capacity to be a
Class I manager, citing 301(d)(2)(c),which provides that “the Indian
tribe [be] reasonably capable in the judgment of the Administrator, of
carrying out the functions to be exercised.”

Response:  EPA disagrees.  With respect to the requirements for
submittal of a Class I redesignation request, there is no provision in
either Section 164 of the CAA or in 40 C.F.R. 52.21(g) that a tribe (or
state) demonstrate capacity to implement an implementation plan as part
of making a request to redesignate lands.  As explained above, EPA
adopted 40 CFR 49.11, which established the framework for adoption of
FIP provisions for Indian Country: “[The Administrator] [s]hall
promulgate without unreasonable delay such Federal implementation plan
provisions as are necessary or appropriate to protect air quality,
consistent with the provisions of section 304(a) (sic 301(a)) and
301(d)(4), if a tribe does not submit a tribal implementation plan
meeting the completeness criteria of 40 CFR 51, Appendix V, or does not
receive EPA approval of a submitted tribal implementation plan.” 40
CFR 49.11(a). The intent of this provision was to recognize that tribes
may not initially have the capability to implement their own delegated
CAA programs and that the TAR does not relieve EPA of its general
obligation under the CAA to protect air quality throughout the nation,
including in Indian country. See 63 Fed. Reg. at 7265.    Therefore, the
TAR established two possible routes for the codification of a Class I
redesignation on Tribal lands: (1) A TIP, if one has been developed by
the Tribe and approved by EPA; and (2) a FIP, if a TIP did not exist and
a FIP was necessary to protect air quality.  

Comment:  One state commenter asserts that a FIP is inappropriate in
this case because it is not needed to protect the air quality of the
lands proposed for redesignation because these lands are already
protected as Class II areas under the CAA.  

Response:  EPA does not agree.  As the FCP Community’s request for
redesignation makes clear, the FCP Community is seeking greater
protection for these lands than is presently provided under their Class
II classification.  Section 164(c) of the CAA provides that States and
Tribes may redesignate lands of their choosing where they meet the
procedural requirements for redesignation.  

F.  Air Program Implementation in Indian Country/Role of Tribes in
Protecting Air Quality

Comment:  The Tribe should not be granted Class I status because current
state regulations already provide sufficient air quality protection for
the reservation lands and Class I redesignation interferes with State
sovereignty and state air program administration.

Response:  EPA’s authorization of State air programs does not extend
to federally recognized Indian reservations, which are excluded from
state SIP approvals.  CAA section 164(c) expressly provides that Tribes
are responsible for redesignating reservations, and that tribes can
redesignate their lands when they conclude that the redesignation is
appropriate to protect Reservation air quality.  See TAR, 63 Fed. Reg.
at 7254.  It is Congress, through the CAA, that has provided Tribes (and
States) with the authority to redesignate certain lands and to implement
programs under CAA authorities. 

EPA has, as discussed above, only limited authority to disapprove a
redesignation request.  The comment thus provides no basis for EPA to
disapprove the redesignation.  The CAA states that “air pollution
prevention. . .and air pollution control at the source is the primary
responsibility of States and local governments. . .” and that “each
State shall have the primary responsibility for assuring air quality
within the entire geographic area comprising such State. . . .” 42
U.S.C. Section 7401(a)(3) and 7407(a).  States, however, are not the
exclusive regulating entity under the CAA. 

 

In the 1990 amendments to the CAA, Congress amended the CAA to add
sections 110(o) and 301(d), which allows Tribes to administer many CAA
programs in the same manner as States. See 59 Fed. Reg. 43956.  EPA
furthered this congressional purpose when it promulgated regulations for
implementation of CAA programs by Tribes.  See 63 Fed. Reg. at 7254. 
These amendments reflect Congressional recognition that Tribes should be
primarily responsible for environmental regulations and decisions that
impact reservation environments. 

  SEQ CHAPTER \h \r 1 The CAA specifically provides that tribes and
states may redesignate lands as they deem appropriate.  This recognizes
the primary role these governmental entities have in directing the
environmental quality of their respective lands.  

In its Technical Report, the FCP Community described many reasons why
they believe the existing protection offered by Class II status is not
adequate to protect their reservation environment.  The redesignation
proposal describes the importance of the Class I redesignation in
protecting vegetation, wildlife and water resources, and visual air
quality, and states the Tribe’s concern about adverse impacts to these
resources.  Specifically, the Tribe notes that

“The PSD program and Class I redesignation only limit the increase of
the criteria pollutants, such as sulfur dioxide and PM10.  However,
other “non-criteria” pollutants that are “air toxics” or
“Hazardous Air Pollutants” can have important health effects. 
Emissions of these air toxics commonly occur at criteria pollutant
emitting sources. . . . Since the Class I redesignation will limit the
allowable increases of the criteria pollutants for which increments have
been established, it may also therefore limit the air quality increases
of toxic air pollutants associated with large PSD emission sources. 
Therefore, the redesignation will better protect health from air toxic
effects than the existing Class II status.”  

Technical Report, at 40-41.  The Technical Report also notes that 

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 

Atmospheric deposition represents an important if not domina[n]t[]
mechanism by which toxic chemicals enter the ecosystems in the Great
Lakes area.

If toxics are taken in by animals, they are soluble in fat cells, and
can accumulate as they move up the food chain (bioaccumulation).

There is a t[h]reat to the health of our children emanating from
exposure to persistent toxic substances, even at very low levels.

Since 1950 at least 16 species of wildlife in the Great lakes region
have been [a]ffected by reproductive problems or declining populations. 
In every case, high concentrations of toxics were found in the
animals[‘] tissue. . . . The emissions of air toxics are not directly
regulated under the PSD program.  However, by limiting the increases in
criteria air pollutant concentrations caused by development of new large
PSD sources, the redesignation to Class I may help limit the increase in
air concentrations of toxic pollutants associated with these sources. 
Therefore, the effects of redesignation will be beneficial for
controlling the increase in toxic air pollutant levels.

Technical Report, at 44.  In sum, the FCP Community believes it will
better be able to protect its reservation environment under a Class I
designation.  

EPA also notes that Congress generally limited EPA's authority to
disapprove the proposed redesignation of any area to circumstances where
the redesignation does not meet procedural requirements.  See section
164(b)(2) of the CAA.  Thus, so long as the applicable procedures are
met, EPA may not deny a proposed redesignation solely on grounds that
surrounding communities feel a higher level of air quality protection
for the reservation is unnecessary. 

Comment:    SEQ CHAPTER \h \r 1 MDEQ commented

“The State of Michigan regulates toxic emissions and minor sources
more rigorously than the CAA.  This is a serious issue when processes
producing toxic emissions locate on reservation land or land held in
trust for the Tribe by the federal government.  Unlike Michigan, the
federal government does not have a minor source permit program which can
address toxic emissions.  Because of this, MDEQ believes that the
environment and public health can only be protected if state air quality
rules apply to sources locating on Tribal lands.”   

Response:  EPA disagrees.  Control over the use of reservation
resources, including air, is a fundamental aspect of Indian sovereignty.
 The Clean Air Act explicitly provides that a tribe may request
redesignation, and gives EPA only limited authority to disapprove a
redesignation request.  This concept was discussed at length during
congressional debate over the adoption of section 164(e) of the CAA,
when Congressman Rogers, Chairman of the House Subcommittee on Health
and the Environment, and one of the conferees admonished that EPA's
review of Tribal redesignation in resolving intergovernmental disputes
should be exercised with utmost caution and that EPA should reverse a
Tribal determination only under the most serious circumstances:

The concept of Indian sovereignty over reservation lands is a critical
one, not only to Native Americans, but to the Government of the United
States.  A fundamental incident of that sovereignty is control over the
use of their air resources.  Some statutes, I imagine, have encroached
upon Indian sovereignty, eroding treaty rights negotiated at an earlier
time.  This is not such a bill, for the Administrator should reverse the
determination made by an Indian governing body to reclassify its land,
only under the most serious circumstances.  See 1977 CAA Legislative
History, vol. 3 at 326.

Likewise, both Federal and Agency Tribal policies direct EPA to respect
Tribal sovereignty.  For example, on January 24, 1983, President Reagan
issued a Federal Indian Policy, reaffirming and calling for
implementation of President Nixon's 1970 national policy of
self-determination for Indian Tribes as well as the ensuing 1975 Indian
Self-Determination and Education Assistance Act, 25 U.S.C. 450, et seq. 
The Policy Statement issued by President Reagan stressed two related
themes:  (1) that the Federal government will pursue the principle of
Indian “self-government” and (2) that it will work directly with
Tribal governments on a “government-to-government” basis.  An April
29, 1994 Presidential Memorandum issued by President Clinton reiterated
that the rights of sovereign Tribal governments must be fully respected.
 See 59 Fed. Reg. 22951 (May 4, 1994).

EPA's Tribal policies are based on the principle that Tribal Governments
must be recognized as sovereign entities with primary authority and
responsibility for the reservation populace.  See November 8, 1984
“EPA Policy for the Administration of Environmental Programs on Indian
Reservations.”  This policy states that EPA recognizes Tribal
Governments as sovereign entities with primary authority and
responsibility for the reservation populace.  Accordingly, EPA will work
directly with Tribal Governments as the independent authority for
reservation affairs, and not as the political subdivisions of States or
other governmental units.  In keeping with the principal of Indian
self-government, the Agency will view Tribal Governments as the
appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their
environments, and the health and welfare of the reservation populace. 
Just as EPA's deliberations and activities have traditionally involved
interests and/or participation of State Governments, EPA will look
directly to Tribal Governments to play this lead role for matters
affecting reservation environments.	

This policy has been was reaffirmed by subsequent Administrators,
including, most recently, Administrator Johnson Administrator Carol M.
Browner in a Memorandum issued on September 26, 2005March 14, 1994.  See
also State of Washingon, Department of Ecology v. U.S. EPA, 752 F.2d
1465, 1471-72 & n.5 (9th Cir. 1985).  EPA’s 1984 Indian Policy
specifically recognizes that until tribal governments have the capacity
to assume full responsibility for delegable programs, EPA retains
responsibility for managing federal environmental programs within the
reservation boundaries of federally recognized tribes.  The only
exception is where a State has an express grant of jurisdiction from
Congress sufficient to support delegation to the State government or can
otherwise demonstrate authority; a position that continues to be
affirmed by federal case law.  In this present jurisdictional scheme,
therefore, state programs, including minor source permitting, do not
apply to Indian Country, because these areas are by definition outside
the scope of state jurisdiction absence an express grant of jurisdiction
from Congress. 

In its recent rules which specify those provisions of the CAA for which
tribes may be treated as states, EPA clearly stated its commitment to
further Congress’s intent to grant approved tribes authority over all
air resources within the exterior boundaries of a reservation.  See TAR,
63 Fed. Reg. at 7254.  Pursuant to these regulations, Tribes can
establish regulatory air programs to suit the needs of their
constituents.  Tribes may also promulgate air regulations under their
own tribal authorities.  In any case, EPA consistently has taken the
position that absent express congressional intent or other express
authorization, states generally do not have jurisdiction to implement
federal environmental programs in Indian Country.  

Comment:  Class I redesignation will add unnecessary layers of
additional regulation to the existing state and federal regulatory
requirements and it would give the Tribe jurisdiction over state air
permits outside the reservation.

Response:  EPA does not agree.  Redesignation of the FCP Community lands
to Class I will not require the Tribe to develop any air quality
regulations.  Because northeastern Wisconsin is a designated Class II
area and is an attainment area, PSD requirements already apply to
sources there.  The regulations currently in place under Wisconsin’s
PSD program already require the owner/operator of proposed major
stationary sources locating in PSD areas to submit a permit application
containing an analysis of their air quality impacts and to install
“best available control technology” to control emissions.  See
sections 165(a) and 169(3) of the CAA.  The air quality analysis must
show that the proposed source will not cause or contribute to a
violation of an applicable PSD increment or a NAAQS, as demonstrated by
air quality modeling.  See 40 CFR 52.21(c) and (d).  After notice and
public hearing for a proposed permit, the permitting authority reviews
the permit application and determines whether the PSD permit
requirements have been met. 

 

Thus, and following this rulemaking granting Class I status to FCP
Community reservation lands, the States of Wisconsin and Michigan will
remain, for their respective lands, the permitting authorities for
sources located outside the FCPC Community reservation.  EPA will remain
the federal permitting authority for proposed sources locating within
the FCP Community reservation boundaries until the FCP Community applies
for and receives delegation of this authority.  Until Wisconsin amends
its SIP to specify how the redesignation of the Reservation as a Class I
area will affect sources in Wisconsin, such sources will treat the
Reservation identically to the way they would treat any other Class I
area.   Sources in Michigan will treat the Reservation as a Class I area
as they would any other Class I area under the FIP that currently
applies to Michigan, and which will not be altered by this action.

  SEQ CHAPTER \h \r 1 Comment:  The proposed redesignation should not be
considered until the FCP Community establishes a tribal air quality
management program.

Response:  The establishment of a delegated air program under the CAA is
not a prerequisite for redesignation by a tribe.   EPA will remain the
permitting authority for proposed sources locating within the
reservation boundaries until the FCP Community applies for and receives
delegation of this authority.   

Comment:  Redesignation is unnecessary because it will not improve the
air quality of reservation lands and broad atmospheric changes are
really the cause of air quality degradation.

Response:  EPA disagrees.    SEQ CHAPTER \h \r 1 The intent of the PSD
program is not improvement of air quality, but the prevention of further
significant deterioration of the existing air quality.  The CAA gives
both states and tribes the ability to redesignate land if they meet
certain procedural requirements.  

  SEQ CHAPTER \h \r 1 Comment:  Several  commenters were concerned that
the current regulations do not provide sufficient standards that
differentiate between Class I and Class II increments and how these
potentially impact major and minor sources.

Response:  EPA disagrees.  40 CFR 52.21(c) sets out the ambient air
increments for Class I, II, and III areas respectively.  A new PSD size
source or PSD modification is required to follow the procedures listed
in 40 CFR 52.21 (j) through (s), as part of its PSD permit application. 
The PSD permit program does not apply to minor sources.

Comment:    SEQ CHAPTER \h \r 1 The proposed redesignation should be
denied because it might result in overlapping jurisdictions with
conflicting regulations should other nearby tribes also pursue Class I
status, and it would interfere with the State’s ability to manage air
quality.

Response: EPA disagrees.  It would be inappropriate to deny the FCP
request based on speculation about the future actions of other nearby
tribes or the potential effects that may result from overlapping
jurisdictions and conflicting regulations.  The Clean Air Act
specifically provides that any federally recognized tribe may
redesignate its reservation lands as its governing body deems is
appropriate.  EPA must evaluate each such request on a case-by-case
basis, as set forth in Section 164 of the Act and the implementing
regulations at 40 CFR 52.21(g).  Section 164(e) provides a mechanism for
dispute resolution should actual conflicts over redesignation or
permitting arise.  See, e.g. Nance, 645 F.2d at 711; Arizona v. EPA, 151
F.3d at 1209.

Comment:    SEQ CHAPTER \h \r 1 Some commenters fear that the
redesignation will have a broad effect either directly or by encouraging
other tribes to seek redesignation. 

Response: The CAA does not limit how many tribes or states may seek
Class I designation of qualified lands, nor does the Act place a limit
on the number of Class I areas that may be designated.  Any
redesignation request, by either a state or tribe will have to consider
the area of impact in its technical analysis supporting the
redesignation request.  The CAA does not require a state or tribe to
project potential future redesignations or to speculate about their
potential.  Any future proposed redesignation will be reviewed on a
fact-specific basis according to the applicable regulations. 

Comment:    SEQ CHAPTER \h \r 1 How would jurisdictional disputes
stemming from multiple Class I areas be resolved?  

Response: No Tribe or State can seek to redesignate lands outside its
own boundaries.  Therefore, there are few, if any, cases where two
tribes would seek to redesignate an overlapping area. Permit disputes
between two neighboring jurisdictions – either tribe vs. tribe, tribe
vs. state, or state vs. state – would be resolved through the dispute
resolution mechanism of Section 164(e) of the CAA.  See, e.g. Nance, 645
F.2d at 711;  Arizona v. EPA, 151 F.3d at 1209.

Comment:  The  SEQ CHAPTER \h \r 1  redesignation of tribal lands would
impose costly open-ended regulations on the State, forcing the State to
implement and enforce a federally-mandated policy. 

Response:  EPA disagrees.  Any additional administrative resources which
would be required as a result of a Class I designation should not be
substantial.  In its June 29, 1995 Federal Register notice proposing to
approve the FCP Community’s request for redesignation, EPA stated 

Through submission of the request for redesignation, the Tribal
government has elected to adopt an option allowed them under Section 164
of the act.  The redesignation being proposed for approval in this
action may bind State, local, and Tribal governments to perform certain
actions and also may ultimately lead to the private sector being
required to perform certain duties.  However, USEPA has also determined
that his action does not include a mandate that may result in estimated
costs of $100 million or more to State, local, or Tribal governments in
the aggregate or to the private sector.  60 Fed. Reg. at 33781.  

This analysis was reaffirmed in EPA’s December 18, 2006 proposal (71
Fed. Reg. 75694). 

In addition and as stated previously, because northeastern Wisconsin is
a designated Class II area and is an attainment area, PSD requirements
already apply to sources there.  The regulations currently in place
under Wisconsin’s PSD program already require the owner/operator of
proposed major stationary sources locating in PSD areas to submit a
permit application containing an analysis of their air quality impacts
and to install “best available control technology” to control
emissions.  See sections 165(a) and 169(3) of the CAA.  The air quality
analysis must show that the proposed source will not cause or contribute
to a violation of an applicable PSD increment or a NAAQS, as
demonstrated by air quality modeling.  See 40 CFR 52.21(c) and (d). 
After notice and public hearing for a proposed permit, the permitting
authority reviews the permit application and determines whether the PSD
permit requirements have been met. 

 

Thus and following this rulemaking granting Class I status to FCP
Community reservation lands, the States of Wisconsin and Michigan will
remain, for their respective lands, the permitting authorities for
sources located outside the FPC Community reservation.  EPA will remain
the federal permitting authority for proposed sources locating within
the FCP Community reservation boundaries until the FCP Community applies
for and receives delegation of this authority.  Until Wisconsin amends
its SIP to specify how the redesignation of the Reservation as a Class I
area will affect sources in Wisconsin, such sources will treat the
Reservation identically to the way they would treat any other Class I
area.   Sources in Michigan will treat the Reservation as a Class I area
as they would any other Class I area under the FIP that currently
applies to Michigan, and which will not be altered by this action.

  SEQ CHAPTER \h \r 1 Comment:  Class I redesignation would impose the
same requirements on northern Wisconsin as if the area had been
designated as non-attainment.  

Response:  The requirements for areas designated nonattainment are far
more stringent and restrictive than the requirements for Class I areas.
For example, the requirements imposed in Class I areas apply only to
major, stationary sources of air pollution, whereas nonattainment areas
often impose restrictions on small stationary sources and mobile
pollution sources, such as vehicles.  The primary objective of the PSD
program is to prevent air quality in attainment areas from deteriorating
to the point that they fail to meet the NAAQS and fall into
nonattainment, thus requiring harsher air pollution control measures to
clean them up.  For more information on the attainment and nonattainment
area requirements, see 40 CFR 51.166 and 40 CFR 51.165 respectively.

G.  Air Quality Related Values of Redesignated Lands

Comment: Several commenters objected that: (1) the Tribe should have
included a list of AQRVs in their 1995 application for redesignation,
(2) the area did not have air quality related values suitable or
appropriate for protection, and (3) that each parcel should be evaluated
as to whether AQRVs apply. 

 

Response:  EPA does not agree with these comments.  The Act does not
define AQRVs or identify specific AQRVs other than visibility.  See
CAA§165(d)(3).

  

Neither Section 164(b) of the CAA nor EPA's implementing regulations
governing redesignation require a state or tribe requesting a
redesignation to demonstrate or establish that the affected lands have
AQRVs, and Congress did not make AQRVs a prerequisite for redesignation
of non-federal Class I areas. It is therefore unnecessary for EPA to
determine what AQRVs the lands at issue might possess in order for the
Agency to act on, including granting, the redesignation request. See
Yavapai Dispute Resolution, 61 Fed. Reg. at 56458-56459.  The Tribe,
nevertheless, has identified air quality related values and its
agreement with Wisconsin specifies how those AQRVs will be protected. 

Comment:  The Tribe is the appropriate land manager for the Class I
area.

Response:  Pursuant to the FPC Community-Wisconsin MOA, the tribe will
perform the functions of the land manager for the Class I area. 

Comment:  The analysis required by Michigan under its Air Toxics program
would satisfy any AQRV analysis that would be required for the proposed
Class I area. 

Response:  Following the rulemaking, sources in Michigan will treat the
Reservation as a Class I area as they would any other Class I area under
the FIP that currently applies to Michigan, and which will not be
altered by this action.  Class I redesignation is a federal action which
is not affected by state air program requirements.

Impact of Class Redesignation on Minor Sources

  SEQ CHAPTER \h \r 1 Comment:  Some  commenters expressed their belief
that redesignation to Class I would impact not only major PSD sources,
but would also restrict minor sources, as well as residential,
agricultural, timber and small business growth in northern Wisconsin.

Response:  Under section 164(c)(2) of the CAA, EPA’s review of the
redesignation proposal is limited to ensuring that the FCP Community
followed the prescribed statutory requirements.  For this reason, EPA
concludes that comments regarding the possible economic impact of the
redesignation or the merits of the Tribe’s request do not provide any
basis for EPA to disapprove the redesignation.  In addition, and as
discussed previously, the PSD permitting program only requires PSD major
sources and sources undertaking a major modification to address the
potential impacts upon the PSD increments.  Minor sources are not
subject to the requirements of the PSD permitting program, of which the
PSD increment analysis is a part.  In addition, the FCP Community
Technical Report states that industrial growth, over a 10 year period,
would not be impacted if the area were to be redesignated as Class I. 

I. Other Miscellaneous Comments

Comment:  The Tribe should have analyzed the impact of the Class I
redesignation request on the proposed Crandon mine project.

Response:  EPA does not agree.  The now defunct Crandon mine project was
originally proposed as a synthetic minor air pollution construction
project.  Synthetic minor and minor sources are not required to analyze
their impacts on PSD increment for Class I nor Class II.  

 

  SEQ CHAPTER \h \r 1 Comment: EPA should address public comments it has
received on other proposed rulemakings relating to Class I
redesignations and/or implementation in this response to comments
document on EPA’s decision to grant the FCP Community’s Class I
request.  

Response:  EPA does not agree.  Comments submitted in response to the
notice and comment opportunities provided for proposed rules fall
outside the scope of EPA’s approval of this redesignation.  EPA will
address such comments in the context of the final rulemaking on these
proposed rules, as appropriate.

  SEQ CHAPTER \h \r 1 Comment:  The proposed redesignation imposes Class
I designation on states, counties, and towns without their
representation. 

Response: EPA disagrees.  Redesignation of Tribal lands to Class I does
not change the PSD classification of the towns, counties, and State
lands in the surrounding area. The proposed Class I redesignation of FCP
Community reservation lands will change the PSD designation of only
those reservation lands.

  SEQ CHAPTER \h \r 1 Comment:  The proposed redesignation would violate
the Unfunded Mandates Reform Act if it were to be evaluated in the
context of potential redesignations in all 50 states. 

Response: The proposed redesignation covers one reservation, located in
one state.  Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
P.L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector.  Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with “Federal mandates” that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.  Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements.  Section 205 allows EPA to adopt an alternative other than
the least costly, most cost-effective or least burdensome alternative if
EPA publishes with the final rule an explanation why that alternative
was not adopted.  The Agency’s decision to approve the proposed
redesignation is not a regulation or rule within the meaning of UMRA. 
Neither the final rulemaking, nor EPA’s resolution of the
intergovernmental dispute, are subject to the requirements of sections
202 and 205 of UMRA because they do not contain Federal mandates that
may result in expenditures of $100 million or more for State, local, and
Tribal governments, in the aggregate, or the private sector in any one
year.  In no event does UMRA require EPA to conduct an analysis of
unsubmitted and unknown numbers of hypothetical nation-wide Class I
redesignations prior to EPA’s consideration of the proposed FCP
Community redesignation request.

Comment:    SEQ CHAPTER \h \r 1 Several commenters expressed their
belief that the redesignation process is increasing tensions between the
States and Tribes and inciting conflicts between Indians and non-Native
Americans.

Response:  Based on comments received by EPA during the public comment
period, it appears that many commenters’ concerns stem from incomplete
information regarding the scope of the PSD program and the protections
available for non-Federal Class I areas under the program.  EPA believes
the best way to reduce community tension over the proposed redesignation
is to increase public understanding about the PSD program and the facts
specific to the FCP Community’s redesignation proposal.  EPA has
attempted to provide this information by providing two public
information meetings which were held prior to the public hearings on
August 12, 1997 in Carter, Wisconsin and August 13, 1997 in Rhinelander,
Wisconsin, as well as making available fact sheets on the redesignation
in conjunction with the 1997 and 2007 public hearings.  

  SEQ CHAPTER \h \r 1 Comment:  Diesel fumes from buses and smoking in
the Tribe’s casinos has become a pollution problem.

Response: Diesel buses are regulated under Title II of the CAA.  The PSD
permit program does not provide authority to control emissions coming
from diesel buses or smoking. 

  SEQ CHAPTER \h \r 1 Comment:  One commenter was concerned that aerial
spraying to stem potato disease would be precluded if the Class I
redesignation were granted.

Response:  Agricultural aerial spraying does not fall under the 40 CFR
52.21 definition of stationary source, “any building, structure,
facility, or installation which emits or may emit any air pollutant
subject to regulation under the Act.”  Only new major PSD sources or
new major modifications are required to obtain a PSD permit.

Comment:  Several commenters were concerned that Redesignation to Class
I would threaten the growth and impose high costs on the wood-processing
industry, including manufacture of wood pellets, on which Forest County
depends.

Response:  If a source’s potential to emit is below the PSD threshold
emission levels, a source is not required to conduct an air impact
analysis that addresses Class I areas.  Whether or not a source is
subject to the PSD program requirements will not be affected by one or
more tribal redesignations.

Comment:  One commenter expressed concern that gasoline retailers near
the Class I area would be required to install expensive vapor recovery
equipment.

Response:  See the response to the comment above.  Gasoline retailers
are not normally of sufficient size to require a PSD permit.  Only major
stationary sources are required to have an assessment of the impacts of
potential emissions on a Class I area.

Comment:  One  commenter was concerned that manufacturers who will not
be affected by the FCP redesignation proposal will later be impacted
should other tribes redesignate.  

Response:  EPA disagrees, please see response in Section H.

Comment:  One commenter speculated that the FCP Community was seeking
redesignation because they want to deny a mining permit for an Exxon
mine and conduct their own mining project in the future.  Other
commenters speculated that the FCP community was requesting
redesignation to block unnamed off reservation projects.  

EPA disagrees.  Under section 164(c)(2) of the CAA, EPA’s review of
the redesignation proposal is limited to ensuring that the FCP Community
followed the prescribed statutory requirements.  For this reason, EPA
concludes that comments regarding the possible economic impact of the
redesignation or the merits of the Tribe’s request do not provide any
basis for EPA to disapprove the redesignation.  

Comment:  One commenter wishes to incorporate all of the briefs filed in
opposition to the Yavapai-Apache redesignation into his public comments
on the FCP Community proposed redesignation.  Other commenters also
expressed their belief regarding the similarity between the proposed FCP
redesignation and that of the Yavapai-Apache.  

Response: The arguments raised in opposition to EPA’s approval of the
Yavapai-Apache redesignation proposal are numerous and fact-specific. 
The facts presented by the FCP Community’s proposal to redesignate are
not identical to those of the Yavapai-Apache case, and the comments do
not specify which of the many arguments raised in these briefs may apply
to the FCP redesignation proposal.  EPA refers the commenters to the 9th
Circuit decision upholding the Agency’s redesignation of
Yavapai-Apache reservation lands, in which the arguments raised in these
briefs were addressed by the Court, to see the similarities, if any,
between the FCP and the Yavapai-Apache redesignations.  See Arizona v.
EPA, 151 F.3d  at 1205..

Comment:  Two commenters were concerned that the proposed redesignation
does not address indoor air quality in casinos, specifically cigarette
smoking.  

Response:  The scope of the PSD program does not address indoor air
quality.

Comment:  Several  commenters argued that because there have been
allegations of wrongdoing by certain EPA staff involved in the approval
of tribal program eligibility under the Clean Water Act several years
ago, that EPA could not evaluate the redesignation request in a neutral
way. 

  

Response:  The allegations referenced in these comments involved three
treatment as state eligibility determinations under the Clean Water Act
made by Region 5 over a decade ago, which were promptly investigated and
all allegations were addressed.  The Clean Air FCP Class I rulemaking is
a separate action from Clean Water Act tribal program eligibility
determinations.  EPA commits to act in a lawful and impartial manner in
handling rulemaking actions.  The circumstances of any other action have
no bearing on the current rulemaking.  EPA’s record for its
determination on the proposed redesignation has been and remains
available for public review in the docket for this rulemaking.

Comment:  One commenter noted that the EPA should “supply a study of
the adverse economic effects which resulted from the termination of the
Buena Vista Power Plant project in Virginia, because of a Class I
designation.”   The commenters also requested that EPA provide
information to the public regarding the impact of other tribal
redesignations.

Response:  As explained elsewhere, neither EPA nor a tribe requesting
redesignation is required to conduct an economic analysis of the
redesignation’s potential impact, and EPA cannot consider economic
impact in a decision to approve or disapprove a redesignation. Thus,
this comment is mistaken.  

To date four Indian tribes have been redesignated to Class I.  These are
(with the date of their redesignation to Class I) as follows: Northern
Cheyenne Tribe, MT (1977); Flathead Indian Reservation, MT (1982); Fort
Peck Indian Reservation, MT (1984); and Spokane Indian Reservation, WA
(1991).  The Yavapai-Apache Reservation redesignation, AZ (1996), was
remanded back to EPA by the 9th Circuit in its decision in Arizona v.
EPA.

EPA’s historical experience with other Tribal Class I areas indicates
that no projects in Virginia have been denied because of a Tribal Class
I designation.  Four Indian tribes have sought and obtained
redesignation of reservation land to Class I.  The reservations
designated Clas I are located in EPA Regions 8 and 10, within varying
proximities to urban centers.  In Region 10, the Spokane Tribe has
submitted comments in the past on proposed PSD permits issued either by
EPA or the State of Washington.  EPA is unaware that any source in
Region 10 has ever been denied a permit, or has decided not to construct
because of comments received or proximity to the Spokane Tribe.  In
Region 8, the Northern Chyeyenene have commented on PSD permits.  In one
instance, a utitility was issued a permit that the Northern Cheyenne
believed would violate the Class I PSD increment.  After modifications
were made to the permit, the Tribe felt that the Class I redesignation
increments were being violated and requested dispute negotiations under
Section 164(e) of the CAA.  Subsequently, the permit was modified to
require that the utility fund visibility monitoring.

Additionally, FCP provided information in their comments on EPA’s 2007
FIP proposal, to show the continuing economic viability and “great
economic vitality” of Class I areas in the Midwest. See Footnote 4
above.

 

Comment:  EPA should implement procedural guidelines lines such as those
established in the March 19, 1998, memorandum from Robert Perciasepe and
Jonathan Cannon to Assistant Administrators/Regional Administrators,
“Adoption of the Recommendations from the EPA Workgroup on Tribal
Eligibility Determinations” prior to completing rulemaking on the
proposed redesignation. 

Response:  EPA Region 5, like all other EPA regional offices, has
adopted the guidelines established in the above-cited memorandum and has
developed procedures, where necessary, to further implement the
guidelines established in the memorandum and other subsequent guidance. 
The redesignation request, however, is not a “treatment as state”
eligibility determination, which the guidance referenced by the
commenters is intended to address.  EPA has followed all statutory and
regulatory requirements in its consideration of the FCP Community’s
redesignation request.  EPA’s extensive record for this rulemaking,
including the public hearings, has been and continues to be available
for public review in the docket for this rulemaking.

 Attorney General v. New Mexico, 909 P.2d 716 (N.M. 1995) addresses the
review of revenue and rate design orders concerning a rate application
filed by a telephone exchange carrier.  Baum v. Earl Millikin, 359 F.2d
811 (7th Cir. 1966), addresses the interpretation of a “satisfactory
explanation of a loss of assets. . . within meaning of Bankruptcy
Act,” citing Section 14 of the Bankruptcy Act, 11 U.S.C. § 32(c) (7),
359 F.2d 811, 814.  Gilbert v. Nat’l Transportation safety Board, 80
F.3d 364 (9th Cir. 1996), addresses the National Transportation Safety
Board’s dismissal of a pilot’s appeal from a Federal Aviation
Administration suspension of his pilot’s license.  St. Paul at Chase
Corp. v. Manufacturers Life Ins. Co., 278 A.2d 12 (MD App. 1971)
addresses interpretation of a building construction financing contract
(in which case the Court noted, among other things, “. . .
satisfactory does not mean perfect.  It does not mean absolute.  It does
not mean to the last nut and bolt.”  278 A.2d at 29).  

 FCP Technical Report at 56.

 FCP Technical Report at 55.  Supplemental information submitted by the
FCP Community in their 2007 comments on the proposed FIP provided
additional information to show that economic development did not slow or
decrease near Class I areas.

 Jeff Crawford, “Forest County Potawatomi Community, Comments
Regarding U.S. EPA’s Proposed Federal Implementation Plan Under the
CAA for CertainTrust Lands. . . ,” April 2007, at 15.

 Letter from Brenda Thelen to Governor John Engler, January 26, 1995;
Letter from Roland Harmes, Director MDEQ, to Brenda Thelen,
Vice-Chairperson of FCP Community, March 1, 1995 (confirming receipt of
public hearing notice by Marquette and Crystal Falls offices).

 This distance, and a commenter’s argument that an even greater
distance may be encompassed, has its origins in EPA Proposed Rule for
Prevention of Significant Deterioration and Nonattainment New Source
Review, 61 Fed. Reg. 38249, 38282-38295 (July 23, 1996).  This proposed
rule has proposed a guideline of 100 kilometers (62 miles) to inform
notification to federal land managers.  This regulation has not been
adopted by EPA.

 See Letter from David Ullrich (signed by Robert Springer) to Philip
Shopodock, February 26, 1998; and Letter from David Kee (signed by Steve
Rothblatt) to Herbert Nelson, Acting Area Director, Bureau of Indian
Affairs, Minneapolis Area Office, March 19, 1998.  

 Letter from Christine Hansen to Barbara Wester, February 24, 1998.

 Revival of Tribal Constitutions and Bylaws, Pub.L. No. 100-581, 102
Stat. 2938 at 2945-46 (1988).  

 Letter from Robert Jaeger to David Kee, April 16, 1998.

 Letter from Russell J. Harding, MDEQ, to Carlton Nash, EPA, September
15, 1997 (Comment 45); see also Brian Brady, MDEQ, “DEQ Presentation
Before EPA Regarding Forest County Potawatomi Redesignation,”written
comments, August 8, 1997.

 A PSD increment is the maximum allowable increase in concentration that
is allowed to occur above the baseline concentration of a pollutant
after the date that the PSD increment regulations become effective (the
baseline date).  Unacceptable deterioration is said to occur when the
amount of new pollution would exceed the PSD increments.

 Additionally, EPA is in receipt of a December 15, 2000, letter from
the National Park Service and Fish and Wildlife Service to USEPA, which
states, “From a historical perspective (from 1978 through 2000), the
NPS and FWS have reviewed a combined total of 677 PSD permits (815 total
NSR permits).  Of these 677 PSD permits, we essentially agreed with the
state permitting authorities on 221 of them and submitted no formal
comments, other than to say we agreed.  We recommended permit denial on
20 due to either unacceptable impacts on Class I areas (e.g., no
proposed mitigation of predicted adverse impacts) or lack of any Class I
area impact analyses provided with the permit application.  Of these, we
subsequently formally appealed seven.  For each of the seven appealed
permits, we ultimately reach a negotiated settlement, withdrew our
objection, and the project went forward.  Therefore, over the last 23
years of reviewing PSD permits, we are not aware of any project that was
not built solely because of NPS or FWS AQRV concerns.”

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This language is duplicated in the comment below that I recommend
deleting.

