[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Proposed Rules]
[Pages 25049-25054]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10106]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R10-OAR-2012-0557; FRL-9910-30-Region 10]


Approval and Promulgation of Implementation Plans; Swinomish 
Indian Tribal Community; Tribal Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a Tribal implementation plan 
(TIP) submitted by the Swinomish Indian Tribal Community (SITC or the 
Tribe). The TIP was submitted to the EPA on June 28, 2012, and 
supplementary submittals were received on September 24, 2013, November 
18, 2013, and January 28, 2014. The TIP establishes regulations for 
open burning that will apply to all persons within the exterior 
boundaries of the Swinomish Reservation (the Reservation). The EPA 
approved the SITC for treatment in the same manner as a State (TAS) to 
regulate open burning on the Swinomish Reservation under the Clean Air 
Act (CAA or the Act) on February 16, 2010. This action proposes to 
federally approve the TIP. If the EPA finalizes this approval, the 
provisions of the TIP would become federally enforceable. Upon the 
effective date of a final action to approve the TIP, the SITC's open 
burning TIP would replace the Federal Implementation Plan (FIP) 
provisions regulating open burning within the exterior boundaries of 
the Swinomish Reservation.

DATES: Comments must be received on or before June 2, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2012-0557, by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. EMail: vaupel.claudia@epa.gov.
    C. Mail: Claudia Vergnani Vaupel, U.S. EPA Region 10, Office of 
Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101.
    D. Hand Delivery: U.S. EPA Region 10 Mailroom, 9th Floor, 1200 
Sixth Avenue, Seattle, Washington 98101. Attention: Claudia Vergnani 
Vaupel, Office of Air, Waste, and Toxics (AWT-107). Such deliveries are 
only accepted during normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2012-0557. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties

[[Page 25050]]

and cannot contact you for clarification, the EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about the EPA's public docket visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
www.regulations.gov or in hard copy during normal business hours at the 
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, 
Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Claudia Vergnani Vaupel at (206) 553-
6121, vaupel.claudia@epa.gov, or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA. 
Information is organized as follows:

Table of Contents

I. Background for This Proposed Action
II. CAA Requirements and the Role of Indian Tribes
    A. What is the Clean Air Act and its relationship to Indian 
Tribes?
    B. What is an implementation plan?
    C. How do Tribal implementation plans compare to State 
implementation plans?
III. Tribal Implementation Plan Requirements
IV. Evaluation of the SITC TIP
    A. What air quality goals does the SITC TIP address?
    B. Has the SITC obtained a determination from the EPA that it is 
eligible for TAS for purposes of the TIP?
    C. Has the SITC submitted to the EPA a TIP that is approvable as 
satisfying the requirements of the Act and relevant regulations?
    D. How would the SITC administer the TIP?
    E. What requirements does the SITC TIP contain?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background for This Proposed Action

    The EPA is proposing to approve a TIP submitted by the SITC for 
approval under section 110 of the CAA. The TIP regulates open burning 
practices and establishes a Tribal regulatory program applicable to all 
persons within the exterior boundaries of the Reservation under the CAA 
to maintain or improve ambient air quality related to open burning. The 
Swinomish TIP for open burning was formally submitted to the EPA on 
June 28, 2012, and the EPA received supplementary submittals on 
September 24, 2013, November 18, 2013, and January 28, 2014.\1\
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    \1\ The EPA is taking no action on the provisions identified in 
the TIP submission, Part I, ``The following provisions are not part 
of the TIP being submitted to EPA for approval''.
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    If the EPA finalizes approval of the TIP, the SITC TIP for open 
burning would replace the currently effective open burning provisions 
in the FIP for the Swinomish Reservation (found in 40 CFR 49.10960(g)). 
The EPA promulgated the FIP to protect air quality on 39 Indian 
reservations in Idaho, Oregon, and Washington, including the Swinomish 
Reservation. The EPA intended that these rules would be implemented by 
the EPA, or a delegated Tribal authority, until replaced by TIPs (67 FR 
51802, March 18, 2002).

II. CAA Requirements and the Role of Indian Tribes

A. What is the Clean Air Act and its relationship to Indian Tribes?

    The Clean Air Act (Act) was originally passed in 1970 and has been 
the subject of substantial amendments, most recently in 1990. Among 
other things, the Act: Requires the EPA to establish National Ambient 
Air Quality Standards (NAAQS) for certain pollutants; requires the EPA 
to develop programs to address specific air quality problems; 
establishes the EPA's enforcement authority; and provides for air 
quality research. As part of the 1990 amendments, Congress added 
section 301(d) to the Act authorizing the EPA to treat eligible Indian 
Tribes in the same manner as States (TAS) and directing the EPA to 
promulgate regulations specifying those provisions of the Act for which 
TAS is appropriate. In February of 1998, the EPA implemented this 
requirement by promulgating the Tribal Authority Rule (TAR) (63 FR 
7254, February 12, 1998, codified at 40 CFR part 49). The EPA included 
relevant provisions relating to implementation plans among the 
provisions for which TAS is appropriate (exceptions are identified in 
40 CFR 49.4).
    Under the provisions of the Act and the EPA's regulations, Indian 
Tribes must demonstrate that they meet the eligibility criteria in 
section 301(d) of the Act and the TAR in order to be treated in the 
same manner as States. The eligibility criteria are: (1) The Indian 
Tribe is federally-recognized; (2) the Indian Tribe has a governing 
body carrying out substantial governmental duties and powers; (3) the 
functions the Indian Tribe is applying to carry out pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation (or other areas within the Indian Tribe's 
jurisdiction); and, (4) the Indian Tribe is reasonably expected to be 
capable of performing the functions the Indian Tribe is applying to 
carry out in a manner consistent with the terms and purposes of the Act 
and all applicable regulations.

B. What is an implementation plan?

    An implementation plan is a set of programs and regulations 
developed by the appropriate regulatory agency to assure healthy air 
quality through the attainment and maintenance of the NAAQS. These 
plans can be developed by States, eligible Indian Tribes, or the EPA, 
depending on the entity with jurisdiction and the EPA's approval in a 
particular area. For States, such plans, once approved by the EPA, are 
referred to as State implementation plans or SIPs. Similarly, for 
eligible Indian Tribes these plans, once approved, are called Tribal 
implementation plans or TIPs. Occasionally, the EPA will develop an 
implementation plan for a specific area or source. This is referred to 
as a Federal implementation plan or a FIP. Once final approval becomes 
effective as published in the Federal Register, the provisions of an 
implementation plan become federally enforceable. An applicable 
implementation plan may be comprised of both TIPs and FIPs and/or SIPs 
and FIPs.
    The contents of a typical implementation plan may fall into three 
categories: (1) Agency-adopted control measures, which consist of 
rules, regulations or source-specific requirements (e.g., orders, 
consent decrees or permits); (2) agency-submitted ``non-regulatory'' 
components (e.g., attainment plans, rate of progress plans, emission 
inventories, transportation control measures, statutes demonstrating 
legal authority, monitoring programs); and (3) additional requirements 
promulgated by the EPA (in the absence of a commensurate agency 
provision) to satisfy a mandatory Clean Air Act section 110 or part D 
requirement. The implementation plan is a living document which can be 
revised by the State or eligible Indian Tribe as necessary to address 
air pollution problems. Accordingly, the EPA from time to time must 
take action on implementation plan revisions which

[[Page 25051]]

may contain new and/or revised regulations that will become part of the 
implementation plan.
    Upon submittal to the EPA, the Agency reviews implementation plans 
for conformance with Federal policies and regulations. If the 
implementation plan conforms, the State's or eligible Indian Tribe's 
regulations become federally enforceable upon the EPA's approval. The 
codification is usually accomplished by first announcing the EPA's 
findings in the Federal Register through a proposed rulemaking action, 
with an appropriate public comment period. After evaluating comments 
received on the proposal, a final rulemaking action will be published 
by the EPA, which will incorporate the implementation plan, if 
approved, into the Code of Federal Regulations (CFR).

C. How do Tribal implementation plans compare to State implementation 
plans?

    The Act requires each State to develop, adopt, and submit an 
implementation plan for the EPA's approval into the SIP. Several 
sections of title I of the Act provide structured schedules and 
mandatory requirements for SIP preparation and contents. These are 
further developed in 40 CFR part 51. The SIP program reflects each 
State's particular needs and air quality issues. At a minimum, SIPs 
must meet minimum Federal standards. If a State fails to submit an 
approvable SIP within the schedules provided in the Act, sanctions can 
be imposed on the State, and if the State still does not submit an 
approvable implementation plan, the EPA is required to develop and 
enforce a FIP to implement the applicable Act requirements for that 
State.
    Sections 110 and 301(d) of the Act and the EPA's implementing 
regulation at 40 CFR part 49 provide for Tribal implementation of 
various Act programs including TIPs. Eligible Indian Tribes can choose 
to implement certain Act programs by developing and adopting a TIP and 
submitting the TIP to the EPA for approval. TIPs: (1) Are optional; (2) 
may be modular; (3) have flexible submission schedules; and (4) may 
allow for joint Tribal and EPA management as appropriate.
1. Optional
    The Act requires each State to develop, adopt and submit a proposed 
SIP for the EPA's approval. Unlike States, Indian Tribes are not 
required to adopt an implementation plan. In the TAR, the EPA 
recognized that not all Indian Tribes will have the need or the desire 
for an air pollution control program, and the EPA specifically 
determined that it was not appropriate to treat Indian Tribes in the 
same manner as States for purposes of mandatory plan submittal and 
implementation deadlines. See 40 CFR 49.4.
2. Modular
    The TAR offers eligible Indian Tribes the flexibility to include in 
a TIP only those implementation plan elements that address their 
specific air quality needs and that they have the capacity to manage. 
Under this modular approach, the TIP elements the eligible Indian Tribe 
adopts must be ``reasonably severable'' from the package of elements 
that can be included in a whole TIP. As provided in the TAR, 
``reasonably severable'' means that the parts or elements selected for 
the TIP are not necessarily connected to or interdependent on parts not 
included in the TIP, and are consistent with applicable Act and 
regulatory requirements. TIPs are fundamentally different than SIPs 
because, while the Act requires States to prepare an implementation 
plan that meets all of the requirements of section 110 of the Act, an 
Indian Tribe may adopt TIP provisions that address only some elements 
of section 110.
3. Have Flexible Submission Schedules
    Neither the Act nor the TAR requires Indian Tribes to develop TIPs. 
Therefore, unlike States, Indian Tribes are not required to meet the 
implementation plan submission deadlines or attainment dates specified 
in the Act. Indian Tribes can establish their own schedules and 
priorities for developing TIP elements (e.g., regulations to limit 
emissions of a specific air pollutant) and submitting the TIP to the 
EPA for approval. Indian Tribes will not face sanctions for failing to 
submit or for submitting incomplete or deficient implementation plans. 
See 40 CFR 49.4.
4. Allow for Joint Tribal and EPA Management
    Consistent with the Act and the TAR, eligible Indian Tribes can 
revise a TIP to include appropriate new programs or return programs to 
the EPA for Federal implementation as necessary or appropriate based on 
changes in Tribal need or capacity. The EPA may regulate emission 
sources that the Indian Tribe chooses not to include in a TIP if the 
EPA determines such regulation is necessary or appropriate to 
adequately protect air quality. This type of joint management is 
expected to result in a program fully protective of Tribal air 
resources.

III. Tribal Implementation Plan Requirements

    For an Indian Tribe to receive the EPA's approval of a TIP, the 
Indian Tribe must, among other things: (1) Obtain a determination from 
the EPA that the Indian Tribe is eligible for TAS for purposes of the 
TIP; and (2) submit to the EPA a TIP that satisfies the requirements of 
the Act and relevant regulations that apply to the plan elements and 
functions for which the Indian Tribe seeks approval.
1. Determination of Eligibility for TAS for Purposes of the TIP
    To be found eligible for TAS for the purpose of carrying out an 
implementation plan under the Act, an Indian Tribe must meet the 
requirements of section 301(d) of the Act and 40 CFR 49.6:

     The Indian Tribe must be federally recognized;
     The Indian Tribe must have a governing body carrying 
out substantial governmental duties and powers over a defined area;
     The functions to be exercised by the Indian Tribe must 
pertain to the management and protection of air resources within the 
exterior boundaries of the Indian Tribe's reservation or other areas 
within the Indian Tribe's jurisdiction;
     The Indian Tribe must be reasonably expected to be 
capable, in the EPA Regional Administrator's judgment, of carrying 
out the functions to be exercised in a manner consistent with the 
terms and purposes of the Act and all applicable regulations.
2. Submission of an Approvable TIP
    Implementation plans are governed by section 110 of the CAA. Under 
sections 110(o) and 301(d) of the CAA and the TAR (40 CFR 49.9(h)), any 
TIP submitted to the EPA shall generally be reviewed in accordance with 
the provisions for review of State implementation plans set forth in 
CAA section 110. Thus, the TIP must include not only the substantive 
rules by which the Indian Tribe proposes to help achieve the air 
quality goals of the CAA, but also provide assurances that the Indian 
Tribe will have adequate personnel, funding, and authority to 
administer the plan, as required by CAA section 110(a)(2)(E), and 
requirements governing conflicts of interest as required by CAA section 
128.\2\
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    \2\ See section 110(a)(2)(E) of the Act, which requires all 
implementation plans to contain the requirements described in 
section 128 of the Act. Tribal implementation plans must comply with 
section 128 as neither section 110(a)(2)(E) nor section 128 of the 
Act are listed in the TAR as provisions that are inapplicable to 
Indian Tribes seeking TIP approval under the Act. See 40 CFR 49.4. 
The EPA explicitly contemplated the applicability of CAA section 128 
in the preamble to the proposed TAR. See 59 FR 43964, August 25, 
1994.

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[[Page 25052]]

    Under CAA section 128, implementation plans must contain 
requirements that (1) any ``board or body'' that approves permits or 
enforcement orders have at least a majority of members who represent 
the public interest and do not derive any significant portion of their 
income from persons subject to the permits or orders, and (2) conflicts 
of interest are disclosed. The EPA does not intend to read CAA section 
128 to limit an Indian Tribe's flexibility in creating a regulatory 
infrastructure that ensures an adequate separation between the 
regulator and the regulated entity (59 FR 43964, August 25, 1994).
    The following technical elements may be included in a TIP:

     A list of regulated pollutants affected by the plan;
     Locations of affected sources and the air quality 
designation (i.e., attainment, unclassifiable, nonattainment) of the 
source location;
     Projected estimates of changes in current actual 
emissions from affected sources;
     Modeling information (i.e., input and output data, 
justification of models used, data and assumptions used);
     Documentation that the plan contains emission 
limitations, work practice standards, and recordkeeping/reporting 
requirements;
     Regulations.

    The TAR allows Indian Tribes to develop, adopt, and submit an 
implementation plan for approval as a TIP in a modular fashion, so it 
may not be necessary that a plan meet all of the requirements 
identified above to be approvable.

IV. Evaluation of the SITC TIP

A. What air quality goals does the SITC TIP address?

    The SITC TIP for open burning provides a regulatory structure to 
protect air quality from the impacts of open burning within the 
boundaries of the Swinomish Reservation. The SITC TIP is comprised of 
two parts. Part I is the ``Swinomish Tribal Implementation Plan for 
Open Burning'', describing the Tribe's open burning program, including 
requirements on conflicts of interest (per CAA section 128), public 
notification and public hearings (per 40 CFR 51.285 and 51.102) and 
demonstrating available resources (per 40 CFR 51.280). Part II of the 
TIP is the ``Clean Air Act,'' chapter 2 of title 19 of the Swinomish 
Tribal Code (STC). Part II includes regulations governing open burning 
practices within the boundaries of the Swinomish Reservation.
    In general, the TIP establishes:

    1. A tribally-operated permitting program to authorize open 
burning under specified parameters;
    2. standards for open burning;
    3. a list of prohibited materials that may not be burned;
    4. the circumstances under which the Tribe may call a burn ban 
during periods of impaired air quality or high fire danger;
    5. a permitting fee system; and
    6. a system of enforcement, including authority to perform 
inspections and issue enforcement orders, and a process for appeals.

B. Has the SITC obtained a determination from the EPA that it is 
eligible for TAS for purposes of the TIP?

    On February 16, 2010, the EPA determined that the SITC had 
demonstrated that it was eligible for TAS for the purpose of 
implementing a TIP to regulate open burning on the Swinomish 
Reservation under section 110 of the CAA. The SITC's eligibility 
application submitted January 6, 2009, addressed the requirements of 
section 301(d) of the Act and 40 CFR 49.6. The EPA found that the SITC 
satisfied those requirements and notified the SITC of its TAS 
eligibility determination to implement an open burning TIP. See letter 
dated February 16, 2010, from Michelle Pirzadeh, Acting Regional 
Administrator, EPA Region 10, to the Honorable M. Brian Cladoosby, 
Tribal Chairperson, Swinomish Indian Tribal Community, included in the 
docket for this action.

C. Has the SITC submitted to the EPA a TIP that is approvable as 
satisfying the requirements of the Act and relevant regulations?

    In accordance with CAA section 110(a), the SITC submittal includes 
documentation that the Tribe issued a public notice soliciting comments 
on its proposed TIP on December 21, 2012, and held a public hearing on 
January 26, 2012, with no public comments received. The Swinomish 
Indian Senate adopted the TIP for open burning on March 6, 2012, and 
the ordinance that amended chapter 2 of title 19 of the STC was 
approved by the Superintendent of the Puget Sound Agency of the Bureau 
of Indian Affairs on March 9, 2012--the effective date of chapter 2 of 
title 19 of the STC. The SITC formally submitted the TIP to the EPA on 
June 28, 2012, and the EPA received supplementary submittals on 
September 24, 2013, November 18, 2013, and January 28, 2014.\3\
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    \3\ The SITC made four TIP submissions which included more than 
one version of certain components of the TIP. The EPA is taking 
action on the most recent versions of these components as detailed 
in the docket for this action.
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D. How would the SITC administer the TIP?

    As noted above, CAA section 110(a)(2)(E) requires an implementation 
plan to provide assurances that the Indian Tribe will have adequate 
personnel, funding, and authority to administer the plan. Under CAA 
section 128, implementation plans must contain requirements governing 
conflicts of interest.
    The SITC TIP will be administered and enforced by the air program 
staff within the Swinomish Office of Planning and Community Development 
(the Planning Department or the Department). Under the SITC TIP, the 
air program staff is responsible for issuing open burning permits, 
declaring burn bans, conducting inspections, issuing enforcement 
orders, and publishing public notices and conducting hearings.
    The SITC TIP describes the resources necessary to implement the TIP 
for open burning. These include staff time, supplies for equipment 
maintenance, travel, training, and indirect costs. The TIP describes 
anticipating funding from the EPA as part of the SITC's section 105 air 
program grant and seeking funding from other sources as needed, 
including, but not limited to, additional support through the Tribal 
budget process. The TIP also establishes permit fees.
    In accordance with CAA section 128, the SITC TIP requires any board 
or individual exercising approval authority over permits or enforcement 
orders issued pursuant to the TIP to: (1) Have at least a majority of 
members who represent the public interest and do not derive any 
significant portion of their income from persons subject to permits or 
enforcement orders (provided, however, that elected officials or 
employees of the Tribe who receive income from the Tribe for the 
performance of their official duties may exercise approval authority 
over permits or enforcement orders issued to the Tribe); and (2) shall 
adequately disclose any potential conflicts of interest. Any such 
disclosures will be in writing to the Planning Commission (a Swinomish 
Tribal Senate committee that provides policy and guidance) and will 
become a part of the record of the permit or enforcement order.

E. What requirements does the SITC TIP contain?

    The SITC TIP open burning regulations apply to open burns conducted 
within the Reservation,

[[Page 25053]]

except for burns conducted for tribally-recognized cultural or 
spiritual purposes. An open burn permit is required for any person who 
commences an open burn that is four or more feet in diameter or three 
or more feet in height. The regulations prohibit the burning of certain 
materials, including, but not limited to, structures, garbage, dead 
animals, junked motor vehicles, tires or rubber materials, plastics, 
tar, petroleum products, paints, paper products other than what is 
necessary to start a fire, lumber or timbers treated with 
preservatives, construction debris or demolition waste, pesticides, 
herbicides, fertilizers, or other chemicals, insulated wire, batteries, 
light bulbs, materials containing mercury, asbestos or asbestos-
containing materials, pathogenic waste, hazardous waste, any material 
other than natural vegetation that normally emits dense smoke or 
noxious fumes when burned, any material from a site other than the 
parcel number upon which the open burn is conducted, or fireworks or 
associated packaging other than those permitted under STC title 15, 
chapter 2.
    The TIP also authorizes the Planning Department to call burn bans 
in the case of impaired air quality or the high risk of fire. The 
Department shall declare a burn ban based on impaired air quality when 
pollutant concentrations are measured or predicted within the 
Reservation to: (1) Exceed 75% of the currently effective NAAQS for 
PM2.5 or PM10; or (2) exceed any other of the 
currently effective NAAQS.
    Notice of burn bans will be issued with signs near access roads, 
and on the open burning hotline. Burn bans apply to all open burning on 
the Reservation with the exception of burns for cooking, recreational 
or heating purposes, or an open burn conducted for tribally-recognized 
cultural or spiritual purposes. If a burn begins prior to the ban being 
issued and its cessation would cause greater emissions than allowing it 
to continue, the Planning Department may authorize the open burn to 
continue. The Department may also use its discretion to ban all open 
burning on the Reservation based on the severity of air quality 
conditions or risk of fire danger. This includes fires for cooking, 
recreational or heating purposes, with the exception of fires in homes 
that use woodstoves as a primary source of heat.
    The TIP establishes requirements and procedures for obtaining an 
open burn permit on land within the exterior boundaries of the 
Swinomish Reservation. A complete permit application must be submitted 
and a permit obtained at least three working days prior to the date of 
the open burn. The Planning Department may issue an open burn permit if 
after review it is determined that the open burn will not cause adverse 
air quality or endanger the public. Issued permits will contain 
standard permit conditions and may contain additional permit 
conditions. These permit conditions establish parameters for open 
burning designed to protect air quality. There are also special 
permitting provisions for training fires and agricultural burning. The 
TIP establishes a fee system for open burning and special use permits.
    The TIP includes provisions to be followed by the Tribe in 
enforcing the open burning TIP. The Planning Department is authorized 
to conduct inspections to ensure compliance with the open burning 
conditions. If violations are found, a permit may be revoked and/or an 
enforcement order may be issued requiring the responsible party to 
cease and abate the violating activity, and/or pay a civil penalty and/
or damages. Notices of violations will cite specific details of the 
violation, including applicable permit conditions. The director of the 
Planning Department must disclose any conflicts of interest with regard 
to persons issued a permit or subject to an enforcement order.
    The TIP also identifies a system for appeals. Any person whose 
permit application is denied or to whom the Department issues an 
enforcement order may appeal the decision to the Planning Commission, 
Swinomish Tribal Senate, and Swinomish Tribal Court in accordance with 
the appeals process described in STC 19-04.560 through 19-04.600.
    The EPA is proposing to approve the provisions of title 19, chapter 
2 of the STC into the Swinomish TIP as part of today's proposed action 
(with the exception of the operating permits, nuisance, and carbon 
emission fee provisions that were not included in the Tribe's 
submittal). We note that approval of any Tribal enforcement-related 
authorities (e.g., enforcement, penalties, damages, hearings, appeals) 
into the TIP would have no effect on the EPA's independent authorities 
under sections 113 and 114 of the Act. Any enforcement of the TIP's 
requirements brought by the EPA would proceed under the EPA's 
independent authorities under the Clean Air Act provisions noted above.
    If the EPA issues a final approval of the TIP, the SITC TIP for 
open burning would replace the currently effective open burning 
provisions in the FIP for the Swinomish Reservation (found at 40 CFR 
49.10960(g)). All other provisions of the FIP for the Swinomish 
Reservation will be unaffected by this action.
    The EPA has the authority, under the Act, to enforce the 
requirements in an approved TIP. The EPA will work cooperatively with 
the Indian Tribe in exercising its enforcement authority. The EPA 
recognizes that, in certain circumstances, eligible Indian Tribes have 
limited criminal enforcement authority. The TAR specifically provides 
that such limitations on an Indian Tribe's criminal enforcement 
authority do not prevent a TIP from being approved. Where 
implementation of the TIP requires criminal enforcement authority, and 
to the extent an Indian Tribe is precluded from asserting such 
authority, the Federal government has primary criminal enforcement 
responsibility. A memorandum of agreement between an Indian Tribe and 
the EPA is an appropriate way to address circumstances in which the 
Indian Tribe is incapable of exercising applicable enforcement 
requirements as described in 40 CFR 49.7(a)(6) and 40 CFR 49.8. In 
2010, the Tribe and the EPA entered into a memorandum of agreement that 
addresses the process by which the Tribe will provide potential 
investigative leads to the EPA and/or other appropriate Federal 
entities in an appropriate and timely manner.

V. Proposed Action

    Under CAA sections 110(o), 110(k)(3) and 301(d), the EPA is 
proposing to approve the TIP that was submitted by the SITC on June 28, 
2012, and the supplementary submittals received on September 24, 2013, 
November 18, 2013, and January 28, 2014, for regulating open burning 
within the exterior boundaries of the Swinomish Reservation. The SITC 
TIP includes regulations governing prohibited materials, burn bans, 
open burning permit requirements and fees, and provisions related to 
enforcement of the TIP. Although the EPA is proposing to approve the 
regulations discussed above, the EPA is not proposing to incorporate by 
reference into the CFR the enforcement-related authorities for the 
reasons discussed in section IV. If the EPA takes final action to 
approve this TIP, the SITC TIP for open burning will apply to all 
persons within the exterior boundaries of the Reservation and will 
replace the existing open burning provisions in the FIP for the 
Swinomish Reservation (49.10956(g) and 49.10960(g)).

[[Page 25054]]

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve laws of an eligible Indian 
Tribe as meeting Federal requirements and imposes no additional 
requirements beyond those imposed by Tribal law. Accordingly, the 
Administrator certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). Because 
this rule proposes to approve pre-existing requirements under Tribal 
law and does not impose any additional enforceable duty beyond that 
required by Tribal law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires the 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.'' The EPA has 
concluded that this proposed rule will have Tribal implications in that 
it will have substantial direct effects on the SITC. However, it will 
neither impose substantial direct compliance costs on Tribal 
governments, nor preempt Tribal law. The EPA is proposing to approve 
the SITC's TIP at the request of the Tribe. Tribal law will not be 
preempted as the SITC incorporated the TIP into Tribal law on March 9, 
2012. The Tribe has applied for, and fully supports, the proposed 
approval of the TIP. If it is finally approved, the TIP will become 
federally enforceable.
    The EPA worked with Tribal air program staff early in the process 
of developing the TIP to allow for meaningful and timely input into its 
development. To administer an approved TIP, Indian Tribes must be 
determined eligible (40 CFR part 49) for TAS for the purpose of 
administering a TIP. During the TAS eligibility process, the Tribe and 
the EPA worked together to ensure that the appropriate information was 
submitted to the EPA. The SITC and the EPA also worked together 
throughout the process of development and Tribal adoption of the TIP.
    This action also does not have Federalism implications because it 
does 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, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to approve a TIP covering areas 
within the exterior boundaries of the SITC Reservation, and does not 
alter the relationship or the distribution of power and 
responsibilities between States and the Federal government established 
in the Clean Air Act. This proposed rule does not provide the EPA with 
the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under Executive Order 
12898, ``Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations'' (59 FR 7629, February 16, 
1994). This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) do not 
apply to this proposed rule. In reviewing TIP submissions, the EPA's 
role is to approve an eligible Indian Tribe's submission, provided that 
it meets the criteria of the Clean Air Act. In this context, in the 
absence of a prior existing requirement for the Indian Tribe to use 
voluntary consensus standards (VCS), the EPA has no authority to 
disapprove a TIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for the EPA, when it reviews a TIP 
submission, to use VCS in place of a TIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the NTTAA do not apply.
    This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501, et seq.).

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

List of Subjects in 40 CFR Part 49

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: April 21, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-10106 Filed 5-1-14; 8:45 am]
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