[Federal Register Volume 84, Number 138 (Thursday, July 18, 2019)]
[Rules and Regulations]
[Pages 34306-34313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15221]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 52

[EPA-R10-OAR-2017-0347; FRL-9996-67-Region 10]


Indian Country: Air Quality Planning and Management; Federal 
Implementation Plan for the Kalispel Indian Community of the Kalispel 
Reservation, Washington; Redesignation to a PSD Class I Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this final rule, the Environmental Protection Agency (EPA) 
is approving the May 11, 2017 proposal by the Kalispel Indian Community 
of the Kalispel Reservation (herein referred to as the Kalispel Tribe 
of Indians or Kalispel Tribe) to redesignate lands within the exterior 
boundaries of the Kalispel Indian Reservation located in the State of 
Washington to Class I under the Clean Air Act (Act or CAA) program for 
the prevention of significant deterioration (PSD) of air quality. 
Redesignation to Class I will result in lowering the allowable 
increases in ambient concentrations of particulate matter (PM), sulfur 
dioxide (SO2), and nitrogen oxides (NOX) on the 
Kalispel Indian Reservation. Concurrently, the EPA is codifying the 
redesignation through a revision to the Federal Implementation Plan 
(FIP) currently in place for the Kalispel Indian Reservation. This FIP 
will be implemented by the EPA unless or until it is replaced by a 
Tribal Implementation Plan (TIP).

DATES: This final rule is effective on August 19, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R10-OAR-2017-0347. All documents in the docket are listed on 
the https://www.regulations.gov website.

FOR FURTHER INFORMATION CONTACT: Sandra Brozusky at (206) 553-5317, or 
brozusky.sandra@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
V. Statutory Authority

I. Background

    Title 1, part C of the CAA contains the PSD program. The intent of 
this part is to prevent deterioration of existing air quality in areas 
having relatively clean air, i.e. areas meeting the National Ambient 
Air Quality Standards (NAAQS). The Act provides for three 
classifications applicable to all lands of the United States: Class I, 
Class II, and Class III. Associated with each classification are 
increments which represent the increase in air pollutant concentrations 
that would be considered significant. PSD Class I allows the least 
amount of deterioration of existing air quality. PSD Class II allows a 
moderate amount of deterioration, while PSD Class III allows the 
greatest amount of deterioration. Under the 1977 Amendments to the 
Clean Air Act, all areas of the country that met the NAAQS were 
initially designated as Class II, except for certain international 
parks, wilderness areas, national memorial parks and national parks, 
which were designated as Class I along with any other areas previously 
designated Class I. The Act allows states and Indian governing bodies 
to redesignate areas under their jurisdiction to PSD Class I or PSD 
Class III ``to accommodate the social, economic, and environmental 
needs and desires of the local population.'' Arizona v. EPA, 151 F.3d 
1205, 1208 (9th Cir. 1998).
    On May 11, 2017, the Kalispel Tribe submitted to the EPA an 
official proposal to redesignate the original Kalispel Reservation from 
Class II to Class I. The original Kalispel Reservation was established 
by Executive Order No. 1904, signed by President Woodrow Wilson on 
March 23, 1914. A copy of this Executive Order is included in the 
docket for this action. The Kalispel Tribe submitted a supplement to 
the official proposal on July 13, 2017. The Kalispel Reservation is 
located in the State of Washington. The Kalispel Tribe's proposal and 
supplement included an analysis of the impacts of the redesignation 
within and outside of the proposed Class I area, documentation of the 
delivery and publication of appropriate notices, a record of the public 
hearing held on April 10, 2017, and comments received by the Kalispel 
Tribe on the proposed redesignation. EPA proposed to approve the 
Kalispel Tribe's proposal to redesignate the original Kalispel 
Reservation to a Class I area on October 31, 2018. (83 FR 54691). An 
explanation of the requirements for a redesignation and how the 
Kalispel Tribe complied with those requirements was provided in the 
notice of proposed rulemaking and will not be restated here.
    The public comment period for this proposed action was open October 
31, 2019 through December 14, 2018 and reopened February 5, 2019 
through February 20, 2019. EPA held a public hearing on the proposed 
action on December 6, 2018 in Newport, Washington. During this hearing, 
16 members of the public provided verbal comments. Of the 16 verbal 
commenters, 15 supported EPA's proposed approval of the Kalispel 
Tribe's redesignation, while one commenter expressed interest in 
establishing air quality monitoring stations in Pend Oreille County. 
This comment was determined to be unrelated to this action and no 
further discussion is provided below. Documentation of these comments 
is included in the docket for this action.

II. Response to Comments

    EPA received comments from 164 parties on the proposed approval of 
the Kalispel Tribe redesignation request. Of the 164, 137 commenters 
supported EPA's proposed action, while 17 opposed EPA's proposed 
action. The remaining ten comments were either unrelated to EPA's 
proposed approval of the Kalispel Tribe's redesignation request or did 
not recommend EPA take a position on the redesignation request. In 
particular, several commenters expressed opposition to the proposed 
construction of a silicon smelter in Newport, Washington. However, the 
potential silicon smelter is unrelated to EPA's proposed approval of 
the Kalispel Tribe's redesignation request. In addition, one commenter 
provided information on the air quality monitoring needs in Pend 
Oreille County, but did not connect this information with EPA's 
proposed approval of the Kalispel Tribe's request. EPA has considered 
all the relevant comments received. Within this section, we have 
summarized the adverse comments and provided our responses.

[[Page 34307]]

A full copy of comments received is available in the docket for this 
final action.

A. Economic Impacts of Redesignation

    Several commenters argued that EPA should deny the Kalispel Tribe's 
proposal because redesignating the Kalispel Tribe's original 
reservation to Class I under the CAA PSD program would hinder economic 
development in the area. As stated in the proposal, the CAA establishes 
a narrow role for EPA in reviewing a state or tribe's proposal to 
redesignate certain areas as either Class I or Class III. Section 
164(b)(2) of the CAA states, ``The Administrator may disapprove the 
redesignation of any area only if he finds, after notice and 
opportunity for public hearing, that such redesignation does not meet 
the procedural requirements of [Section 164 of the CAA] or is 
inconsistent with the requirements of [Section 162(a) of the CAA] 
(listing mandatory Class I areas).''
    Similarly, the United States Court of Appeals for the Ninth Circuit 
recognized that when Congress amended Section 164 of the CAA in 1977, 
Congress intended to ``eliminat[e] the authority which EPA had to 
override a local government's classification of any area on the ground 
that the local government improperly weighed energy, environment, and 
other factors.'' Arizona, 151 F.3d at 1211 (citing H.R. Rep. No. 95-
294, at 7-8). The Ninth Circuit also made clear that once the 
procedural requirements of Section 164 of the CAA and 40 CFR 52.21 are 
met, the EPA must approve the request for redesignation. Id. at 1208, 
1211. The Seventh Circuit has similarly acknowledged that EPA has 
``little discretion'' when reviewing redesignation requests, provided 
the procedural requirements have been met. Michigan v. EPA, 581 F.3d 
524, 526 (7th Cir. 2009) (citing Arizona, 151 F.3d at 1208).
    Therefore, as described in the statutory text, EPA's role in acting 
on a state or tribe's proposal is to determine whether the procedural 
requirements in Section 164 of the CAA and implementing regulations at 
40 CFR 52.21(g) have been met, not to assess the prudence of a state or 
tribe's proposal based on economic considerations or other factors. 
Moreover, neither the CAA, nor 40 CFR 52.21(g) require a state or tribe 
requesting redesignation to demonstrate that the redesignation will 
have no adverse economic, social, or energy effects. As stated in the 
proposal, EPA found no procedural defects in the Kalispel Tribe's 
proposed redesignation. Therefore, consistent with the constraints of 
Section 164 of the CAA and 40 CFR 52.21(g), EPA has determined that 
approval of the redesignation is appropriate.

B. Consultation With Elected Leadership of Local and Other Substate 
Governments in the Area Covered by the Proposed Redesignation

    Several commenters argued that the regulations governing the 
process for seeking redesignation mandated that the Kalispel Tribe 
consult with county-level governments surrounding or near the Kalispel 
Reservation. The regulation at 40 CFR 52.21(g)(2)(v) provides that 
``the State has proposed the redesignation after consultation with the 
elected leadership of local and other substate general purpose 
governments in the area covered by the proposed redesignation.'' The 
regulation at 40 CFR 52.21(g)(4)(i) provides that lands within the 
exterior boundaries of Indian Reservations may be redesignated if the 
Indian Governing Body has followed procedures equivalent to those 
required of a State under 40 CFR 52.21(g)(2).
    The Kalispel Tribe's proposal makes clear that the area covered by 
the proposed redesignation is the original reservation established by 
Executive Order No. 1904, signed by President Woodrow Wilson on March 
23, 1914. The Kalispel Business Council is the exclusive governing 
authority in the Kalispel Reservation. Therefore, the Kalispel Tribe 
satisfied this requirement. The area ``covered'' by the redesignation 
is separate and distinct from the areas that may be ``affected'' by the 
redesignation. Importantly, the consultation requirement in 40 CFR 
52.21(g)(2)(v) is limited only to the areas ``covered'' by the 
redesignation and does not extend to the areas potentially ``affected'' 
by the redesignation. As stated in the proposal, there is no 
consultation requirement for areas that may be affected by the proposed 
redesignation. By extension, the Kalispel Tribe was not required to 
consult with county-level governments in Washington or Idaho prior to 
proposing the redesignation. EPA's evaluation of the Kalispel Tribe's 
compliance with the procedural requirements at 40 CFR 52.21(g)(2)(v) 
and 40 CFR 52.21(g)(4)(i) is consistent with the regulatory text.
    One commenter stated that because the Kalispel Reservation is 
located within Pend Oreille County, Pend Oreille County constitutes a 
local or substate government in the Kalispel Reservation as 
contemplated by 40 CFR 52.21(g)(2)(v) and 40 CFR 52.21(g)(4)(i). The 
commenter further stated that EPA's interpretation of 40 CFR 
52.21(g)(2)(v), as described in the proposal, undercuts its purpose.
    We decline to accept the commenter's interpretation of 40 CFR 
52.21(g)(2)(v) to require tribes to consult with substate governments 
whose boundaries encompass an Indian Reservation. If there existed 
municipalities or counties within the Kalispel Reservation and the 
Kalispel Business Council proposed to redesignate lands in those 
municipalities or counties, then the regulations at 40 CFR 
52.21(g)(2)(v) and 40 CFR 52.21(g)(4)(i) would require the Kalispel 
Business Council to consult with the elected leadership of those 
municipalities or counties. Here, the Kalispel Business Council is the 
only governing body with jurisdiction within the Kalispel Reservation. 
This constitutes an equivalent requirement as that mandated of a state 
in 40 CFR 52.21(g)(2)(v). Accordingly, this interpretation maintains 
fidelity to the plain language and purpose of 40 CFR 52.21(g)(4)(i) and 
(g)(2)(v) and ensures that local and substate governments in the area 
covered by the redesignation will be consulted prior to a state or 
tribe proposing redesignation.

C. Inadequate Notice

    Three commenters argued that the Kalispel Tribe failed to provide 
required notice to certain county-level governments potentially 
impacted by the proposed redesignation. However, EPA does not interpret 
40 CFR 52.21(g) or 51.102 as requiring the Kalispel Tribe to provide 
direct notice of the proposed redesignation to each of these counties 
individually. As explained in the proposal, and incorporated herein, 
the Kalispel Tribe satisfied the notification requirements of Section 
164 of the CAA and implementing regulations at 40 CFR 52.21(g). The 
Tribe published a notice of the April 10, 2017, public hearing in the 
Newport Miner on March 8, 2017, and again on March 15, 2017, as 
required by 40 CFR 52.21(g)(2)(i). Also, the Tribe directly notified 
other states, Indian governing bodies, and federal land managers at 
least 30 days prior to the public hearing as required by 40 CFR 
52.21(g)(2)(ii).
    As stated above, the Tribe was not required by Section 164 of the 
CAA, nor the regulations at 40 CFR 52.21(g), to make a finding on what 
areas may be affected by the proposed redesignation or provide direct 
notice to such governments in such areas. Nevertheless, on March 6, 
2017, the Tribe sent several Pend Oreille County; City of Newport, 
Washington; Pend Oreille Public Utility District; and Washington 
Department of Ecology officials a courtesy notice of the Tribe's

[[Page 34308]]

intent to propose redesignation, as well as the date, time, and 
location of the public hearing and the availability of the Kalispel 
Tribe's February 2017 Class I Redesignation Technical Report 
(``Technical Report''). Therefore, the Tribe satisfied the notice 
requirements of the CAA and regulations.

D. Provide 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

    Several commenters argued that the Kalispel Tribe's Technical 
Report (Document No. EPA-R10-OAR-2017-0347-0013 in the Docket) failed 
to provide a satisfactory description and analysis of the economic, 
social, and energy effects of the proposed redesignation, as required 
by 40 CFR 52.21(g)(2)(iii). In particular, several commenters stated 
that the economic analysis provided in the Technical Report 
inappropriately included data from Spokane County and Stevens County. 
The commenters argued that the economic situation of Pend Oreille 
County exclusively was more dire than the regional analysis depicted in 
the Technical Report and that not all workers living in Pend Oreille 
County can commute to Spokane.
    The statute and regulations do not establish a standard for a 
``satisfactory description and analysis of the health, environmental, 
economic, social, and energy effects of the proposed redesignation. . . 
.'' 42 U.S.C. 7474(b)(1)(A). The Ninth Circuit's evaluation of a 
similar criticism of the adequacy of a tribe's analysis is informative. 
The court stated, ``Congress has established a narrow role for EPA in 
reviewing State or Tribal requests for redesignation'' and that 
``Congress limited EPA's authority to disapprove redesignation requests 
to a procedural level.'' Arizona, 151 F.3d at 1211. Reviewing a 
challenge to a redesignation, which included the question of whether 
the Tribe's analysis was ``satisfactory,'' the Court found that EPA 
``reasonabl[y] interpret[ed]'' the statutory requirements when the 
agency concluded that a `` `satisfactory description and analysis' is a 
relatively low threshold.'' Id.
    The court also explained that the CAA ``does not assign any weight 
to these individual effects and does not suggest that one effect should 
be given priority over another'' and that Congress did not intend for 
EPA to ``re-weigh[ ] the effects of a proposed redesignation or second-
guess[ ] a Tribe's decision to redesignate its reservation lands.'' 
Arizona, 151 F.3d at 1211-12. Our review of the Technical Report was 
informed, in part, by the Ninth Circuit's analysis of Section 
164(b)(1)(A) of the CAA and we concluded that the analysis was 
satisfactory. Further, as detailed below, the commenters did not 
provide information that called into question the factual foundation of 
the Technical Report.
    Specifically, our review of the Technical Report indicated that the 
Tribe's analysis of the economic impacts of redesignation on Pend 
Oreille, Stevens, and Spokane Counties was reasonable. In particular, 
the Technical Report includes a supplemental report as Appendix B 
entitled ``The Economic Impact of Redesignation of the Kalispel Indian 
Reservation as a Class I Area under the Clean Air Act's Prevention of 
Significant Deterioration Program.'' This report included a section 
entitled ``Defining the Economic Area in Which the Kalispel Tribe is 
Embedded,'' which explains the Tribe's rationale for defining the 
Kalispel Reservation Economic Area.
    According to this section, the economic analysis included Spokane 
County and Stevens County because of the economic connections between 
Pend Oreille County and Stevens County with Spokane County. Pend 
Oreille County, Spokane County, and Stevens County are located in the 
Spokane Metropolitan Statistical Area, which is defined by the U.S. 
Bureau of Economic Analysis based on measured connections between those 
counties. The section also included data on commuting patterns that 
indicated 24% of workers in Pend Oreille County commute to Spokane 
County for work. Commenters did not provide any data to refute these 
commuting patterns or the economic connections between the counties. 
Indeed, the propriety of the Tribe's inclusion of Stevens County in the 
analysis is reinforced by the fact that the Stevens County 
Commissioners commented on EPA's proposed rulemaking, highlighting the 
potential economic impacts of redesignation on residents of Stevens 
County.
    The regulation at 40 CFR 52.21(g)(2)(iii) required the Tribe to 
analyze the economic effects of the proposed redesignation. The 
regulation does not specify the scope of the analysis. Given the 
potential for the redesignation to impact pollution sources in Stevens 
County and Spokane County and the economic linkages between those 
counties, the Tribe was not unreasonable in analyzing the economic 
impact of redesignation on all three counties collectively. Moreover, 
based on the numerous substantive comments the Tribe received regarding 
the economic situation in Pend Oreille County, the Technical Report 
appears to have aided the public in providing comments on the Tribe's 
proposed redesignation.
    In addition to the comments regarding the Tribe's economic impacts 
analysis, one commenter noted that the Technical Report incorrectly 
accounts for emissions from Ponderay Newsprint Company's facility 
located less than two miles south of Usk, Washington and inaccurately 
suggests that Ponderay Newsprint Company's facility accounts for all 
PM10 emissions in the County. However, the Technical 
Report's description of emissions sources and levels in the area near 
the Kalispel Reservation is satisfactory.
    Specifically, the Technical Report includes a narrative discussion 
of the sources of emissions in Pend Oreille County and summarized these 
emissions in Table 13 and Table 14 in the Technical Report. Contrary to 
the commenter's assertions, the narrative description in the Technical 
Report makes clear that a sawmill operated by Vaagen Brothers Lumber, 
Inc. and a locomotive repair facility operated by Pend Oreille Valley 
Railroad produce particulate emissions in the County, but that 
information on the precise emissions from these sources was not 
publicly available. The Tribe also noted in its discussion of emissions 
sources that the Tribe could not ascertain the status of the air 
quality permit for Ponderay Newsprint Company's facility. In the 
alternative, the Tribe obtained emissions estimates for Ponderay 
Newsprint Company's facility from the Washington Department of 
Ecology's Title V Program Review Final Report dated September 22, 2014 
and provided these estimates in Table 14. Given that the Washington 
Department of Ecology is the permitting authority for Ponderay 
Newsprint Company's facility, the Tribe's reliance on these figures is 
reasonable. The Tribe's decision not to provide an estimate of 
emissions from other point sources of particulate matter in Table 13 in 
the absence of a credible source of emissions data was similarly 
reasonable.
    As well as the comments regarding the emissions data presented in 
the Tribe's Technical Report, three commenters argued that the 
Technical Report was not satisfactory because it did not include an 
analysis of the current consumption of the PSD increment for 
particulate matter with a diameter less than 10 micrometers 
(PM10). The commenters contend that the absence of this 
analysis renders the entire Technical Report materially

[[Page 34309]]

deficient. We disagree. As stated above, the Kalispel Tribe was 
required to provide the public, at least 30 days in advance of the 
public meeting, 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. The Kalispel Tribe did so. The Kalispel Tribe 
provided the Technical Report over 30 days in advance of the April 10, 
2017, public hearing. As discussed in the proposal, EPA assessed the 
report and determined that it contains a thorough description of the 
health, environmental, economic, social, and energy effects of the 
proposed redesignation.
    EPA's assessment is consistent with the limited role assigned to 
EPA in this endeavor. The Ninth Circuit has recognized that ``Congress 
has established a narrow role for EPA in reviewing State or Tribal 
requests for redesignation'' and that ``Congress limited EPA's 
authority to disapprove redesignation requests to a procedural level.'' 
Arizona v. EPA, 151 F.3d at 1211. Reviewing a challenge to a 
redesignation, which included the question of whether the Tribe's 
analysis was ``satisfactory,'' the Court found that EPA ``reasonabl[y] 
interpret[ed]'' the statutory requirements when the agency concluded 
that a `` `satisfactory description and analysis' is a relatively low 
threshold.'' Id. Consistent with that direction, given the thorough 
description and analysis included in the report, it is reasonable for 
us to conclude that the Kalispel Tribe has cleared this low threshold. 
Indeed, the Tribe's Technical Report exceeded the minimum requirements 
in several respects, as discussed below.
    Similar to the commenters here, the petitioners in Arizona v. EPA 
argued that the Yavapai-Apache Tribe's description and analysis of the 
potential effects of redesignation was inadequate. Arizona v. EPA, 151 
F.3d at 1212. The Court noted in Arizona v. EPA that the Tribe's report 
``failed to detail what specific effect, if any, redesignation could 
have on local sources already in existence . . . .'' Id. at 1209. The 
Court nevertheless upheld EPA's approval of the redesignation request 
on the grounds that the CAA does not mandate a detailed assessment of 
the impacts of redesignation on existing sources. Id. at 1211-12. The 
Court stated that ``it cannot be said that EPA abused its discretion in 
concluding that the Tribe was not required, as a prerequisite to 
redesignation, to go further in its Plan by (1) explicitly balancing 
the different effects of redesignation; (2) identifying air quality 
related values; (3) evaluating the extent to which Class I status might 
discourage particular industrial development and expansion; or (4) 
pointing to off-site sources which might be impacted by the 
redesignation, including the Phoenix Cement Plant.'' Id. at 1212.
    Contrary to the commenters' assertions, the Technical Report at 
Section 4.1 and Appendix C make clear that the proposed Class I 
redesignation would reduce the allowable increases above baseline 
concentration in particulate matter emissions currently allowed under 
the PSD increment for Class II areas. That is the nature of the Class I 
PSD redesignation. The commenters are correct that increases in 
emissions of PM10 since the minor source baseline date was 
triggered consume increment, while decreases in emissions make 
increment available for future consumption. The emissions increases and 
decreases contributing to increment consumption fluctuate over time. 
Moreover, increment consumption is both time- and location-specific--
two sources can both consume 100% of the increment if their impact 
occurs at different locations or different times. An analysis of 
increment consumption at a fixed point in time, as the commenters 
request, would not change the overall analysis given these 
fluctuations.\1\
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    \1\ We also note that if the State or EPA determines that an 
applicable increment is being violated, then the State or EPA is 
obligated to promulgate a revised implementation plan to correct the 
violation. However, neither the CAA nor the implementing regulations 
prescribe how the regulatory authority must act to reduce emissions 
or what sources the regulatory authority must control. In addition, 
interested parties will have an opportunity to comment on any plan 
revisions the State or EPA proposes to correct the increment 
violation prior to the revisions taking effect.
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    While determining the current PM10 increment consumption 
in the area in and around the Kalispel Reservation would have provided 
the public with a snap-shot of the current situation, this 
determination is not an indispensable component of the description and 
analysis of the potential impacts of redesignation, as the commenter 
suggests. Given the temporal and spatial nature of the increments, an 
analysis of potential impacts would need to include numerous 
assumptions about future emissions changes and the emissions from 
future projects. EPA does not interpret the requirement of Section 164 
of the CAA and 40 CFR 52.21(g) to provide a ``satisfactory description 
and analysis'' of potential impacts as requiring such a highly 
technical and speculative analysis as a prerequisite to obtaining Class 
I PSD redesignation. As stated above, the Ninth Circuit made clear in 
Arizona v. EPA that Section 164 of the CAA does not require a detailed 
assessment of the impacts of redesignation on existing sources. Id. at 
1211-12.
    Furthermore, the Tribe did provide an assessment of the impact of 
redesignation on two hypothetical energy projects sited near the 
Kalispel Reservation. As part of these assessments, the Kalispel Tribe 
modeled the PM2.5, SO2, and NOX 
increment consumption from both hypothetical projects. The assessments 
modeled consumption of PM2.5 increments which are lower than 
the corresponding PM10 increments as a conservative worst-
case scenario. The Kalispel Tribe's assessments of the two hypothetical 
scenarios provide a meaningful analysis of the economic and energy 
impacts of the proposed redesignation that added value to the public 
hearing process.
    Finally, several commenters argued that the Tribe's Technical 
Report inaccurately determined that the forest products industry was 
declining in the area surrounding the reservation and that economic 
growth in the area is more likely to be driven by sectors other than 
manufacturing. However, these commenters provided minimal empirical 
data to refute the Tribe's analysis. Therefore, the Tribe was not 
unreasonable to structure its analysis of the economic and social 
impacts of the redesignation around the predicted economic makeup of 
the region surrounding the Kalispel Reservation. The Tribe provided a 
satisfactory 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 as required by Section 164 of the CAA and 40 CFR 
52.21(g)(2)(iii).

E. EPA Should Require the Kalispel Tribe To Redesignate Its Entire 
Reservation, Not Just a Portion of the Reservation

    One commenter argued that EPA should require the Kalispel Tribe to 
include its entire reservation in the redesignation proposal, rather 
than just the original reservation. First, neither the CAA nor the 
regulations at 40 CFR 52.21(g)(4) prohibit a tribe from proposing 
redesignation of a portion of its reservation. Section 164(c) of the 
CAA and 40 CFR 52.21(g)(4) state that lands within the exterior 
boundaries of Indian Reservations may be redesignated only by the 
appropriate Indian Governing Body. It is reasonable for EPA to read 
these sections as not

[[Page 34310]]

prohibiting a Tribe from proposing to redesignate only a portion of its 
reservation, as there is no statutory text indicating that if any part 
of a Tribe's reservation is redesignated then all of the reservation 
land must be redesignated.
    Contrary to the commenter's statements, EPA's approvals of prior 
redesignation proposals from other Indian governing bodies is 
consistent with this interpretation. Indeed, EPA approved the Forest 
County Potowatomi Community's proposal to redesignate only those 
parcels in the Community's land that equaled or exceeded 80 acres in 
size. See, 73 FR 23086, 23101 (April 29, 2008). The commenter 
references EPA's action in approving the Yavapai-Apache Tribal 
Council's proposal to redesignate the Tribe's entire reservation as 
support that the CAA requires tribes to propose redesignation of their 
entire reservations, rather than just a portion of their reservations. 
61 FR 56450 (Nov. 1, 1996). However, the action cited by the commenter 
differs materially from the current action regarding the Kalispel 
Tribe's proposal. Namely, in the action cited by the commenter, the EPA 
was required to resolve a dispute between the Governor of Arizona and 
the Yavapai-Apache Tribe under Section 164(e) of the CAA. 61 FR 56450, 
56452. When this dispute resolution procedure is invoked, Section 
164(e) of the CAA requires EPA to consider the extent to which the 
lands involved in the redesignation are of sufficient size to allow 
effective air quality management or have air quality related values of 
such an area.
    Here, no state has requested EPA resolve any dispute under the 
authority of section 164(e), and authority to invoke dispute resolution 
is limited to just states and Indian tribes by the statutory text of 
section 164(e). Therefore, under Section 164(b) of the CAA, EPA lacks 
authority to consider whether the lands the Kalispel Tribe has proposed 
for redesignation are of sufficient size. As stated above, the EPA may 
disapprove the Kalispel Tribe's request only if the Tribe failed to 
follow the procedural requirements in Section 164 of the CAA and 40 CFR 
52.21(g).

F. Regulatory Flexibility Act

    One commenter argued that EPA was required by the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 601-612, to include in the notice of 
proposed rulemaking an initial regulatory flexibility analysis. In the 
notice of proposed rulemaking, the Regional Administrator for EPA 
Region 10 certified pursuant to Section 605 of the RFA that the 
proposed rule, if finalized, would not have a significant economic 
impact on a substantial number of small entities. The commenter argues 
that the Regional Administrator's certification was improper because 
approval of the Kalispel Tribe's redesignation proposal impacts small 
entities located near the reservation.
    We disagree. The Regional Administrator's certification was proper 
because EPA's approval of the redesignation does not impose any direct 
regulatory burden on any small entities. The Regulatory Flexibility Act 
imposes no obligation for EPA to conduct a small entity impact analysis 
of effects on entities which EPA does not regulate. As stated in the 
proposal, the PSD program already exists on the Reservation and the 
surrounding area. This action merely approves a Tribe's request to 
redesignate a portion of its reservation to a Class I area under the 
PSD program and does not impose any direct regulatory obligations on 
any sources within or surrounding the Reservation. The State of 
Washington Department of Ecology administers the PSD Program on the 
lands surrounding the Kalispel Reservation. While the redesignation may 
impact the State of Washington's planning and permitting decisions, 
this indirect impact does not constitute direct regulation of small 
entities. See Michigan v. EPA, 213 F.3d 663, 689 (D.C. Cir. 2000), see 
also Am. Trucking Associations, Inc. v. EPA, 175 F.3d 1027, 1044 (D.C. 
Cir. 1999).
    EPA administers the PSD program on the Kalispel Reservation. Even 
accepting that approving the Kalispel Tribe's proposal constitutes 
direct regulation of small entities within the Reservation, there are 
no permitted stationary sources of emissions within the exterior 
boundaries of the original Kalispel Reservation. Whether any PSD 
permits or minor source permits will be issued after the redesignation 
is speculative, so any effect of the redesignation on any EPA 
permitting decision is similarly speculative. Therefore, there is 
insufficient information to conclude that there would be a significant 
economic impact on a substantial number of small entities located 
within the Reservation. Accordingly, the Regional Administrator's 
certification was proper.\2\
---------------------------------------------------------------------------

    \2\ We also note that this Final Rule amends the FIP for the 
Kalispel Indian Community for Kalispel Reservation, Washington. 
codified at 40 CFR 49.10191-49.10220. On April 8, 2005, EPA 
promulgated this FIP, as well as FIPs for other federally recognized 
Indian tribes in Washington, Oregon, and Idaho. These FIPs are 
collectively called the Federal Air Rules for Reservations 
(``FARR''). See 40 CFR part 49, subpart M and 70 FR 18074. In that 
rulemaking EPA certified that the promulgation of the FARR would not 
have a significant economic impact on a substantial number of small 
entities. 70 FR 18074, 18091-92. Therefore, the Regional 
Administrator's certification for today's revision to one of the 
FIPs in the FARR is consistent with the EPA's prior determinations 
on the impacts of the FARR on small entities.
---------------------------------------------------------------------------

G. Other Specific Questions or Comments

    Summary: One commenter states that the Clean Air Act did not intend 
to redesignate areas of land under 5,000 acres.
    Response: EPA disagrees. In Section 162(a) of the CAA, Congress 
initially classified certain areas as Class I under the PSD program, 
and prohibited redesignation of these areas. Specifically, this section 
states that all international parks, national wilderness areas which 
exceed 5,000 acres in size, national memorial parks which exceed 5,000 
acres in size, and national parks which exceed six thousand acres in 
size will be classified as Class I. The 5,000-acre threshold is 
expressly associated with national wilderness areas and national 
memorial parks and identifies those areas that are mandatory Class I 
areas that ``may not be redesignated.'' 42 U.S.C. 7472(a). The 
statutory text does not establish a size limitation for all Class I 
areas. Lands of the type identified in Section 162(a) of the CAA that 
are below the associated size limits are Class II areas by default. 
Section 164 of the CAA explicitly authorizes states and Indian tribes 
to redesignate areas as Class I and does not prescribe a size. Neither 
Section 162 nor Section 164 of the CAA restrict a tribe or state from 
proposing to redesignate portions of a reservation or state land under 
5,000 acres.
    Summary: One commenter asserts that a fair and open public hearing 
held by the Kalispel Tribe never occurred due to the hearing examiner 
instructing a participant to stop speaking, which discouraged other 
participants from speaking.
    Response: EPA disagrees. In order to allow all participants an 
opportunity to speak during a public hearing, it is common and 
appropriate for a hearing examiner or officer to establish a time 
limit. EPA reviewed this hearing transcript (Document No. EPA-R10-OAR-
2017-0347-0029 in the Docket) and determined that the hearing examiner 
established a three-minute time limit at the beginning of the hearing 
and enforced this limit during the hearing. Time-limits can be abrupt 
in nature, however even with the established time limit, the transcript 
appears to contain full dialogue from participants. All speakers were 
subject to the same time limit and members of

[[Page 34311]]

the public also had the opportunity to submit written comments to the 
Tribe.
    Summary: One commenter asks what effect this designation will have 
on agricultural field, forest slash, and forest health burning in their 
community.
    Response: We note at the outset that the commenter does not 
recommend the EPA take a different action than proposed. Therefore, EPA 
provides the following response for informational purposes only. 
Emissions increases from the open burning of agricultural field 
residues or forest slash, and forest health burning after the minor 
source baseline date may consume the available PSD increment or may 
expand the increment if such emissions decrease. However, the emissions 
from these open burning activities are transitory and occur for short 
durations and at different locations each year. When such emissions are 
included in increment consumption calculations, we would expect the 
consumption at any location from such emissions to be small due to the 
transitory nature of the emissions. Thus, it is unlikely that the 
redesignation of the Kalispel Indian Reservation to PSD Class I will 
have an impact on current or future open burning activities.
    Summary: One commenter asserts that Boundary County, Idaho is 
downwind from the Tribal Reservation and the commenter requests that 
all lands in Boundary County be excluded from the Class I 
redesignation.
    Response: This final action only applies to the area within the 
external boundaries of the original Kalispel Tribe reservation, as 
identified in the proposed rule. Boundary County, Idaho will not be 
redesignated to a Class I area as part of this action.
    Summary: Numerous commenters expressed support for EPA's proposed 
approval of the Kalispel Tribe's redesignation request and encouraged 
EPA to finalize the approval.
    Response: We have considered these comments, acknowledge the 
support, and agree that finalizing approval of the Kalispel Tribe's 
redesignation request is appropriate.

III. Final Action

    The EPA's review has not found any procedural deficiencies 
associated with the Kalispel Tribe's proposal. Accordingly, pursuant to 
section 164 of the CAA and 40 CFR 52.21(g), the redesignation is hereby 
approved. The EPA is codifying the redesignation through a revision to 
the FIP currently in place for the Kalispel Indian Reservation. See 40 
CFR 49.10191-49.10220. This FIP will be implemented by the EPA unless 
or until it is replaced by a TIP. To ensure transparency, the EPA is 
also making a clarifying revision to the Washington State 
Implementation Plan at 40 CFR part 52, subpart WW, which would inform 
any party interested in Washington's significant deterioration of air 
quality provisions that the Kalispel Reservation is a Class I area for 
purposes of prevention of significant deterioration of air quality.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of the Executive Order (E.O.) 12866 (58 FR 51735, October 4, 
1993) and is therefore not subject to review under the E.O., and was 
not submitted to the Office of Management and Budget (OMB) for review.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
We are not proposing to promulgate any new paperwork requirements 
(e.g., monitoring, reporting, record keeping) as part of this action. 
The regulation at 40 CFR 49.10198 incorporates by reference the Federal 
PSD program promulgated at 40 CFR 52.21. The OMB has previously 
approved the information collection requirements contained in the 
existing regulations (40 CFR 52.21) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0003, EPA ICR number 1230.32.

D. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedures Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For the purposes of assessing the impacts of this final action on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise that is independently owned and operated and 
is not dominant in its field. I certify that this action will not have 
a significant economic impact on a substantial number of small entities 
under the RFA. As stated in Section II, this action will not impose any 
new requirements on small entities. This action will redesignate to 
Class I only those lands within the exterior boundaries of the Kalispel 
Indian Reservation under the CAA's PSD program. The PSD permitting 
requirements already apply on the Reservation as well as the 
surrounding area. In addition, the PSD permitting requirements only 
apply to the construction of new major stationary sources or major 
modifications to existing major stationary sources. Therefore, the EPA 
does not anticipate this action having a significant economic impact on 
a substantial number of small entities.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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. This action does not contain any 
unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector. Nor does this action create additional requirements 
beyond those already applicable under the existing PSD permitting 
requirements.

F. Executive Order 13132: Federalism

    This action does not have Federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. This 
action does not change the relationship between the states and the EPA 
regarding implementation of the PSD permitting

[[Page 34312]]

requirements in the area. The EPA administers the PSD permitting 
requirements within the Kalispel Reservation. The States of Washington 
and Idaho administer the permitting requirements in the nearby areas.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on Federally-recognized 
tribal governments, nor preempt tribal law. The EPA is finalizing this 
action in response to the Kalispel Tribe's proposal to redesignate the 
Kalispel Reservation from a Class II to a Class I area. Major 
stationary sources proposed to be constructed within the boundaries of 
the Kalispel Reservation will be required to demonstrate that the 
source does not contribute to an exceedance of the lower PSD increments 
for Class I areas. Nonetheless, pursuant to the EPA Policy on 
Consultation and Coordination with Indian Tribes, the EPA consulted 
with tribal officials early in the process of developing this proposed 
action so that they could have meaningful and timely input into its 
development. The Kalispel Tribe submitted its proposal on May 11, 2017. 
Subsequent to receiving the submission, the EPA communicated and 
corresponded with the Tribe numerous times throughout the review 
process.

H. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. Redesignation of the Kalispel 
Indian Reservation to Class I from Class II will reduce the allowable 
increase in ambient concentrations of various types of pollutants. The 
reduction of allowable increases in these pollutants can only be 
expected to better protect the health of tribal members, members of the 
surrounding communities, and especially children and asthmatics. See 78 
FR 3086 (regarding the specific human health consequences of exposure 
to elevated levels of coarse and fine particles); 82 FR 34792 
(regarding the specific human health consequences of exposure to 
elevated levels of nitrogen dioxide); 75 FR 35520 (regarding the 
specific human health consequences of exposure to elevated levels of 
sulfur dioxide).

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This action does not involve technical standards. This action 
merely redesignates the Kalispel Reservation as a Class I area for the 
purposes of the PSD permitting requirements.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
Prior to this proposal, the EPA reviewed population centers within and 
around the Kalispel Indian Reservation to identify areas with 
environmental justice concerns. The results of this review are included 
in the docket for this action.
    Redesignating the Kalispel Indian Reservation will not have an 
adverse human health or environmental effect on residents within the 
Reservation or in the surrounding community. On the contrary, by 
lowering the applicable PSD increments, the redesignation will be more 
protective of air quality. The following pollutants are subject to the 
increment requirement: Fine Particulate Matter (PM2.5), 
PM10, SO2, and Nitrogen Dioxide (NO2). 
Exposure to these pollutants is known to have a causal relationship 
with adverse health effects, such as premature mortality 
(PM2.5, PM10, SO2), exacerbation of 
asthma (NO2 and SO2), and other respiratory 
effects (NO2 and SO2). See 78 FR 3086, 82 FR 
34792, and 75 FR 35520. Therefore, a reduction of the allowable 
concentrations of these pollutants in this area lowers the risk to the 
surrounding communities of adverse health effects.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

M. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 16, 2019. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements (See section 307(b)(2)).

V. Statutory Authority

    The statutory authority for this proposed action is provided by 
sections 110, 301 and 164 of the CAA as amended (42 U.S.C. 7410, 7601, 
and 7474) and 40 CFR part 52.

List of Subjects

40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Indians, Incorporation by reference, 
Intergovernmental relations, Particulate matter, Reporting and 
recordkeeping requirements.

 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: July 5, 2019.
Chris Hladick,
Regional Administrator, Region 10.

    For the reasons stated in the preamble, 40 CFR parts 49 and 52 are 
amended as follows:

[[Page 34313]]

PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

0
1. The authority citation for Part 49 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart M--Implementation Plans for Tribes--Region X

0
2. Revise Sec.  49.10198 to read as follows:


Sec.  49.10198   Permits to construct.

    (a) Permits to construct are required for new major stationary 
sources and major modifications to existing stationary sources pursuant 
to 40 CFR 52.21.
    (b) In accordance with section 164 of the Clean Air Act and the 
provisions of 40 CFR 52.21(g), the original Kalispel Reservation, as 
established by Executive Order No. 1904, signed by President Woodrow 
Wilson on March 23, 1914, is designated as a Class I area for the 
purposes of prevention of significant deterioration of air quality.

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
3. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart WW--Washington

0
4. Amend Sec.  52.2497 by adding paragraph (d) to read as follows:


Sec.  52.2497  Significant deterioration of air quality.

* * * * *
    (d) The regulations at 40 CFR 49.10191 through 49.10220 contain the 
Federal Implementation Plan for the Kalispel Indian Community of the 
Kalispel Reservation, Washington. The regulation at 40 CFR 49.10198(b) 
designates the original Kalispel Reservation, as established by 
Executive Order No. 1904, signed by President Woodrow Wilson on March 
23, 1914, as a Class I area for purposes of prevention of significant 
deterioration of air quality.

[FR Doc. 2019-15221 Filed 7-17-19; 8:45 am]
 BILLING CODE 6560-50-P


