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

Table of Contents Page A. General Comments 2 B. Resources Available to Implement the Rules 9 C. Economic Effects 11 D. Public Participation 13 E. EPA's Authority under the Clean Air Act 15 F. EPA Assuming State Authority 18 G. Tribe Control Over Reservation Lands and Non Indians 23 H. Comments that Apply to More Than One Rule 23 I. Section 49.122 Partial Delegation of Administrative Authority to a Tribe 26 J. Section 49.123 General Provisions 30 K. Section 49.124 Rule for Limiting Visible Emissions 35 L. Section 49.125 Rule for Limiting the Emissions of Particulate Matter 36 M. Section 49.126 Rule for Limiting Fugitive Particulate Matter Emissions 38 N. Section 49.127 Rule for Woodwaste Burners 40 O. Section 49.128 Rule for Limiting Particulate Matter Emissions from Wood Products Industry Sources 41 P. Section 49.130 Rule for Limiting Sulfur in Fuels 41 Q. Section 49.131 General Rule for Open Burning 42 R. Section 49.132 Rule for General Open Burning Permits 48 S. Section 49.133 Rule for Agricultural Burning Permits 48 T. Section 49.134 Forestry and Silvicultural Burning Permits 49 U. Section 49.135 Rule for Emissions Detrimental to Public Health or Welfare 50 V. Section 49.136 Rule for Emissions Detrimental to Persons, Property, Cultural or Traditional Resources 52 W. Section 49.137 Rule for Air Pollution Episodes 53 X. Section 49.138 Rule for the Registration of Air Pollution Sources and the Reporting of Emissions 55 Y. Section 49.139 Rule for Non Title V Operating Permits 56 Z. Section 49.11105 Classification of Regions for Episode Plan 57 2 A. General Comments 1. Comment: Several citizens, Tribes, and State and local governments expressed general support for the rules. Commenters believed these rules are needed to protect air quality on reservations, to fill the regulatory gap, and to level the playing field between sources on and off reservations. Commenters specifically supported the flexibility afforded by the modular approach of the rules, the general approach used by the Environmental Protection Agency ( EPA) to develop the rules, the ability for Tribes to build capacity through partnering with EPA to implement the rules, and the consultation process.

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

Response: Comments are noted.

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

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

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

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

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

Response: Comments are noted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As EPA has stated elsewhere, States generally lack the authority to regulate air quality in Indian country. See Alaska v. Native Village of Venetie Tribal Government, 522 U. S. 520, 527 fn. 1 ( 1998) (" Generally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian Tribe inhabiting it, and not with the States."), California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216 and n. 18 ( 1987); see also HRI v. EPA, 198 F. 3d 1224, 1242 ( 10th Cir. 2000); see also discussion in EPA's final rule for the Federal operating permits program, 64 FR 8251  8255 ( February 19, 1999). In addition, EPA's authority to issue operating permits to major stationary sources located in Indian country under Title V of the Act, pursuant to regulations at 40 CFR Part 71, was affirmed in State of Michigan v. EPA, 268 F. 3d 1075 ( D. C. Cir. 2001). Furthermore, EPA interprets the CAA as establishing unitary management of reservation air resources and as a delegation of Federal authority to eligible Tribes to implement the CAA over all sources within reservations, including non Indian sources on fee lands. Accordingly, even if a State could demonstrate authority over non Indian sources on fee lands, EPA believes that the CAA generally provides the Agency the discretion to Federally implement the CAA over all reservation sources in order to ensure an efficient and effective transition to Tribal CAA programs and to avoid the administratively undesirable checkerboarding 20 of reservation air quality management based on land ownership. EPA believes that Congress intended that EPA take a territorial view of implementing air programs within reservations. EPA believes that air quality planning for a checkerboarded area would be more difficult and that it would be inefficient if a State were to exercise regulation over piecemeal tracts of land within a reservation, possibly with similar reservation sources being subject to different substantive requirements. EPA's approach provides for coherent and consistent environmental regulation within reservations. Therefore, we are not changing the applicability of the rule to " enrolled Tribal members on the reservation" or to " Tribal trust properties and Tribal members." The final rules apply to any person who owns or operates an air pollution source within the exterior boundaries of an Indian reservation in Idaho, Oregon, or Washington, as set forth in 40 CFR part 49, subpart M.

EPA disagrees with comments that the State has authority to implement the CAA within reservation boundaries. When promulgating the final rule for how EPA will issue operating permits to major stationary sources in Indian country pursuant to Title V of the CAA, EPA disagreed with similar comments that some States may have authority over non Indian activities on fee lands in Indian country. EPA wrote " in the context of regulating air pollution, States generally will not have jurisdiction over these lands." 64 FR 8247, 8252 ( February 19, 1999). When reviewing implementation plans and other air programs submitted by States and local air agencies for EPA approval, EPA has clearly limited the programs it is approving as not extending into Indian country where a State had not demonstrated authority over Indian country sources. See Clean Air Act Full Approval of Operating Permits Program in Washington, Direct Final Rule, 66 FR 16, 21 ( January 2, 2001); Approval and Promulgation of Implementation Plans; Idaho, Designation of Areas for Air Quality Planning Purposes; Idaho, Final Rule, 68 FR 2217, 2219  2220 ( January 16, 2003); Approval and Promulgation of State Implementation Plans; Washington, Final Rule, 63 FR 5270 ( February 2, 1998); Clean Air Act Approval of Revisions to Operating Permits Program in Oregon, Direct Final Rule, 67 FR 39630  39632 ( June 10, 2002); and Approval and Promulgation of Implementation Plans; Oregon, Direct Final Rule, 68 FR 2891, 2901 ( January 22, 2003). Even where the EPA approval did not expressly address Indian country, EPA has clarified that its past approvals of State programs as not extending to Indian country unless EPA has explicitly approved the State program in such area. See 64 FR 8253. EPA believes that when exercising its authority to establish implementation plans for these Indian reservations, it is consistent with the CAA to cover all areas and sources not covered by approved State or Tribal programs.

EPA also disagrees that its limited approvals of State programs are insufficient to support Federal jurisdiction in light of the court's opinion in State of Michigan v. EPA. In that decision, the court ruled that EPA cannot indefinitely assume that a Title V source is located in Indian country, and cannot indefinitely assume regulation of the facility if the Agency merely believes the Indian country status is in question. The court noted that the litigants did not contest EPA's authority to implement the CAA in " Indian country", which is defined to include all lands within the exterior boundaries of an Indian reservation. Therefore, the commenters have misinterpreted that decision as applying to fee owned lands within reservations because those commenters incorrectly question 21 the Indian country status of such lands. EPA's position, based on its interpretation of the CAA and consistent with Federal Indian law and the decision in State of Michigan v. EPA, is that all lands within the exterior boundaries of an Indian reservation are Indian country subject to EPA's authority under section 301 of the CAA.

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

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

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

EPA also concluded that the CAA authorizes EPA to protect air quality throughout Indian country, including on fee lands, until a Tribe is approved for TAS and Tribal programs are approved. See 63 FR 7262; 59 FR 43960 43961 ( citing to CAA sections 101( b)( 1), 301( a), and 301( d)); see also Federal Operating Permits Program, Final Rule, 64 FR 8251 8254. EPA decided that in areas of Indian country where no part 70 program has been explicitly approved by 1 In the preamble to the final TAR, EPA explained that it believed it was inappropriate to treat Tribes in the same manner as States with respect to section 110( c) of the CAA, that directs EPA to promulgate a FIP within two years after EPA finds a State has failed to submit a complete State plan or within two years after EPA disapproval of a State plan. Although EPA is not required to promulgate a FIP within the two year period for Tribes, EPA promulgated 40 CFR 49.11( a) to clarify that EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected Tribal areas within a reasonable time. See 63 FR 7264 7265.

22 EPA, a gap exists in air quality requirements under the CAA that EPA is authorized to fill. 1 Therefore, in this FARR rulemaking, EPA is exercising its authority under sections 301( a) and 301( d)( 4) of the CAA and 40 CFR 49.11( a) to promulgate FIPs in order to remedy an existing regulatory gap under the CAA with respect to Indian reservations located in Idaho, Oregon, and Washington.

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

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

G. Tribal Control Over Reservation Lands and Non Indians 1. Comment: Many of the comments submitted about the proposed rules were concerned that EPA was authorizing Tribal governments to regulate reservation environments and the activities of nonmembers of the Tribe on privately owned land within the reservation. Many commenters noted that the majority of people living on reservations in the Pacific Northwest are non Tribal members. The commenters believed that such rules would be unconstitutional, noting that non 23 Tribal citizens have no voice or representation in Tribal government, and are not able to vote in Tribal elections. Commenters also were concerned that Tribes were not capable of successfully administering environmental programs.

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

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

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

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

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

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

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

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

Response: After careful consideration of the comments that the visible emission limits and fugitive particulate matter requirements be made applicable to single family residences or residential buildings with four or fewer dwelling units, agricultural activities, and public roads owned or maintained by any Federal, Tribal, State, or local government, EPA has decided to retain these exemptions. We recognize that some of these source categories have the potential to be areas of concern. We do not have sufficient information at this time, however, to determine that they are a significant problem on the 39 Indian reservations in Idaho, Oregon, and 25 Washington. This rulemaking is a first step to fill the regulatory gap on Indian reservations in Idaho, Oregon, and Washington. As we have noted elsewhere, in the future we may promulgate additional rules if we determine that additional rules are necessary or appropriate.

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

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

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

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

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

6. Comment: One State air agency requested that the three burning permit rules ( § § 49.132, 26 49.133, and 49.134) be revised to require that a copy of each permit be provided to IDEQ.

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

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

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

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

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

In its comments on the proposed delegation provision at § 49.122, one State air agency stated that it supported delegation of provisions of the FARR to Tribes, but requested that the State, affected stakeholders, and local communities be given an opportunity to participate, or at least comment on, any proposed delegation agreement. Another local government also requested an opportunity to comment on proposed delegation agreements. The State also requested that, prior to delegation, EPA require the a Tribe to demonstrate that they have sufficient resources to ensure that the terms and conditions of the agreement can be met. The State also asked EPA to describe the specific Federal functions that EPA contemplates to be subject to delegation under 27 the proposed regulation. Finally, the State asked what effect a delegation agreement with the Nez Perce Tribe may have on the Clearwater Airshed Intergovernmental Group.

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

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

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

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

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

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

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

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

Consistent with the proposal, this final rule does not list the rules or Federal functions that may be delegated. For some portions of the FARR, EPA expects to initially retain full administration of the program without administratively delegating any aspects to Tribes so that we can gain experience with the process for implementation and become familiar with the regulated community. For example, EPA wants to gain experience with implementing the rule for non Title V operating permits at § 49.139 under Federal administrative procedures. A number of rules are not subject to delegation because they are self implementing standards that are to be met by the regulated community, such as § 49.125 ( Rule for limiting the emissions of particulate matter). On the Nez Perce and Umatilla Indian Reservations, where EPA is promulgating burning permit programs, EPA expects to establish delegation agreements with the Tribes to provide local handling of permitting and implementation needs. Currently, EPA and the Nez Perce Tribe have established an intergovernmental agreement with the ISDA and the IDEQ that provides for a coordinated management of agricultural burning activities in the Clearwater Airshed; if necessary, the agreement will be modified to reflect the role of these rules.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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