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Administrator v. United States Environmental Protection Agency

August 10, 1998

ADMINISTRATOR, STATE OF ARIZONA, AND JANE HULL, GOVERNOR, PETITIONERS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; YAVAPAI-APACHE TRIBE, RESPONDENTS. AND ARIZONA CHAMBER OF COMMERCE; AND THE TOWN OF CLARKDALE, PETITIONERS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; YAVAPAI-APACHE TRIBE, RESPONDENTS.



Before: Alfred T. Goodwin, Harry Pregerson, and Warren J. Ferguson, Circuit Judges.

The opinion of the court was delivered by: Goodwin, Circuit Judge:

FOR PUBLICATION

61 Fed. Reg. 56,461 (Nov. 1, 1996) 61 Fed. Reg. 56,450 (Nov. 1, 1996)

Petitions for Review of the Final Agency Action of the Environmental Protection Agency

Argued and Submitted May 12, 1998 San Francisco, California

Opinion by Judge Goodwin; Partial Concurrence and Partial Dissent by Judge Ferguson

SUMMARY

The Petitioners seek to overturn the Environmental Protection Agency's ("EPA") approval of the request by the Yavapai-Apache Tribal Council ("the Tribe") to redesignate its land as a non-Federal "Class I" area under the Clean Air Act's ("CAA") program for Prevention of Significant Deterioration ("PSD"). The "Class I" redesignation allows the Tribe to lower the allowable increases in ambient concentrations of particulate matter, sulphur dioxide, and nitrogen dioxide on the Tribe's land. EPA approved the redesignation after determining that the lands the Tribe sought to redesignate were Indian reservations within the meaning of the Act and that the Tribe fully met the procedural requirements detailed in 42 U.S.C. S 7474(b).

The Petitioners contend that EPA abused its discretion in approving the redesignation because four of the five parcels redesignated are not actually Indian reservations as the term is used in 42 U.S.C. S 7474(c). The Petitioners further assert that EPA abused its discretion in approving the redesignation because the Tribe failed to meet the procedural requirements outlined in S 7474(b). Specifically, the Petitioners complain that the Tribe's analysis of the health, environmental, economic, social and energy effects of the proposed redesignation was inadequate. We have jurisdiction to review this case under 42 U.S.C. S 7607(b). We affirm in part and we reverse and remand in part.

I.

In 1977, Congress amended the Clean Air Act ("CAA") to provide for a Prevention of Significant Deterioration ("PSD") program which would apply to "clean areas"--those areas which meet the national ambient air quality standards (attainment areas) or for which there is insufficient information to reach a Conclusion about their status (unclassifiable areas). 42 U.S.C. S 7471. Congress added the PSD program to the CAA in order "to preserve, protect and enhance air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recreational, scenic, or historic value." 42 U.S.C. S 7470(2).

Pursuant to the PSD program, all clean areas are classified as "Class I," "Class II," or "Class III." 42 U.S.C. S 7472. An area's classification determines the maximum allowable increments of air deterioration allowed. 42 U.S.C.S 7473. Class I areas have the smallest allowable increments and thus permit the least amount of deterioration of air quality. Id. By contrast, Class III areas have the largest allowable increments and permit the greatest deterioration of air quality, allowing deterioration up to the national ambient air quality standards. Id.

In enacting the PSD program, Congress designated all international parks, wilderness areas, national memorial parks, and national parks as Class I. 42 U.S.C.S 7472(a). Congress also affirmed the Class I status of any areas designated as Class I by the EPA under its own PSD regulations before Congress enacted its PSD program. Id. All other clean areas were initially designated as Class II, with Congress expressly reserving the authority to the States and the Indian governing bodies to redesignate lands within their jurisdiction to Class I or Class III status, if needed, to accommodate the social, economic, and environmental needs and desires of the local populations. 42 U.S.C. SS 7472(b) and 7474.

The process of redesignation is spelled out in the PSD provisions. Because a redesignation by an Indian governing body is at stake in this case, we will focus on the process of redesignation only for Indian governing bodies. The PSD provisions provide that an Indian governing body may redesignate "[l]ands within the exterior boundaries of reservations of federally recognized Indian Tribes." 42 U.S.C. S 7474(c). To achieve redesignation the Indian governing body must meet the following procedural requirements:

(1) Announce its intention to the appropriate EPA regional office.

(2) Hold at least one public hearing in accordance with procedures outlined in 40 C.F.R. S 51.102.

(3) Notify other States, Indian Governing Bodies, and Federal Land Managers whose lands may be affected by the redesignation at least 30 days prior to the public hearing.

(4) Prepare a report discussing the reasons for the proposed redesignation including a satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation.

(5) Make the report available for public inspection at least thirty days prior to the public hearing, and notify the public of the availability of such report.

(6) Give written notice to the Federal Land Manager where a proposed redesignation would include Federal Lands and afford the Federal Land Manager an adequate opportunity to submit written comments and recommendations.

(7) Consult with the State or States in which the reservation is located and the States which border the reservation.

(8) Submit the proposal to redesignate to the EPA Administrator through the ...


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