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AMENDMENTS TO DELEGATION OF AUTHORITY PROVISIONS IN THE PSD 

PROGRAM (SAN 5486)

DOCKET NO. EPA-HQ-OAR-2010-0943

Response to Comments

Commenter Key:

Commenter 0002 Anonymous Public Comment

Commenter 0003 C. Kollm

Commenter 0004 Harold “Gus” Frank, Chairman

Forest County Potawatomi Community (FCPC)

P.O. Box 340

Crandon, WI 54520

Commenter 0005 Alex Jackson, Air Program Coordinator

Resource Management-Environmental Program

Fond du Lac Band of Lake Superior Chippewa

218-878-7112

Commenter 0006 Mark R. Yingling, Vice President - Environmental

Peabody Energy Company

Peabody Plaza

701 Market Street

St. Louis, MO 63101

314-342-3400
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COMMENTER 0002 – Rules & Regulations are the very important for society and people. 

http://www.sankalptech.com; http://www.mlmsoftwareindia.in

RESPONSE – Thank you for your comment. We agree that rules and regulations are important 

and this rule amendment is necessary to update outdated language and correct an oversight.

COMMENTER 0003 – I think that this proposed rule to delete restrictions on tribal 

governments from taking control of PSD programs is an extremely practical rule. This rule 

reflects the input of the regulated community, which implies collaboration and a buy-in from an 

important stakeholder. Deleting the restriction is a strong example of how a procedural limitation 

influences the substantive options of the regulated, which in turn, may influence the quality of 

the program as a whole; now an entire new group of tribes is able to use an existing regulatory

tool to fight air pollution. Additionally, the correction of erroneous language that proved to be 

problematic is a responsible use of an agency rule. It is especially important that the local 

governments are empowered to incorporate the needs of their community in a regulation 

schemes because of the unique nature of air pollution. Namely, we are all stakeholders in our 

nation’s air because of air currents and weather patterns. Ensuring that all who wish to be 

involved in the fight to clean up our nation’s air are afforded that opportunity is essential to our 

future. It appears to have been an oversight that tribes were excluded from the rule in the first 

instance and not placed on equal footing with other local entities. From the proposed rule it 

seems that the regulated community has been involved in this process, however I’m concerned 

about how the agency intends to provide outreach to other tribes that may not have been involved 

in the process. Further, while delegating this authority is responsible and practical, it would be 

irresponsible and counterproductive to delegate the authority without providing additional 

support during the transition to those that require it. This rule does not address if tribes are 

adequately equipped to manage a PSD program or if additional support will be given if needed. 

Hopefully, there is already a regulatory structure in place to do just that.

RESPONSE – Thank you for your comments. We agree that this rule is important to increase 

opportunities for involvement of interested tribes in air program implementation. It is designed to 

eliminate a prior limitation on tribal involvement and expand the Agency’s ability to work with 

interested tribes on implementation of the federal PSD program. Following promulgation of this 

rule, we intend to hold conference calls and additional trainings to assist tribes in the delegation 

process. 

COMMENTER 0004 – The Forest Potawatomi Community (“FCPC” or “the Tribe”), a 

federally recognized tribe located in northern Wisconsin would like to thank the EPA for the 

opportunity to comment on EPA’s proposed amendments to Delegation of Authority provisions 

in the Prevention of Significant Deterioration Program (PSD) (40 CFR Part 52.21).

FCPC supports the delegation opportunities available for tribes under the proposed amendment 

changes. This action will enable EPA to delegate the Federal PSD program to interested Indian 

tribes and will provide appropriate opportunities for those tribes to seek delegation over relevant 

sources and modifications in their areas. This action is consistent with existing PSD regulatory

requirements, which already provide for delegation of the administration of the program to 

tribes. Moreover, this action supports tribal self-governance, a matter of significant importance 

to tribes.
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RESPONSE - Thank you for your comments. We agree that this rule is important to increase 

opportunities for involvement of interested tribes in air program implementation. It is designed to 

eliminate a prior limitation on tribal involvement and expand the Agency’s ability to work with 

interested tribes on implementation of the federal PSD program.

COMMENTER 0005 – The Fond du Lac Reservation was established by the Treaty of LaPointe 

(1854) between the Lake Superior Chippewa and the United States Government, with established 

boundaries located in Northeastern Minnesota. The Fond du Lac Band (“the Band”) has an 

active environmental program, and was granted Treatment as an Affected State for air quality in 

2004. On this basis, the Band submits the following comments regarding the U.S. 

Environmental Protection Agency’s (“EPA”)’s proposed Amendment to Delegation of Authority 

Provisions in the Prevention of Significant Deterioration (PSD) Program, dated December 30, 

2011, in the Federal Register Volume 76, Number 251. 

The 1977 Clean Air Act (CAA) included a provision to exclude tribes from taking delegation of 

the PSD program. The creation of the Tribal Authority Rule (TAR) allows for tribes to take 

delegation of most elements of the Act if they choose to. The Federal Implementation Plan (FIP) 

also is used to address permitting in Indian country for non-attainment areas and small sources 

allows for tribes to take delegation of other permitting responsibilities. This rule removes the 

barrier for tribes to take delegation of the PSD program. Furthermore, the proposal and eventual 

passing of this amendment to the PSD program will give tribes the ability to enact their own PSD 

program if they so choose. It is another delegation of authority that helps ensure self governance 

for tribal communities. The Fond du Lac Band supports President Obama and the Administrator 

in their pursuit of equality and of fulfilling the United States’ trust responsibilities to the tribes.

RESPONSE - Thank you for your comments. We agree that this rule is important to increase 

opportunities for involvement of interested tribes in air program implementation. It is designed to 

eliminate a prior limitation on tribal involvement and expand the Agency’s ability to work with 

interested tribes on implementation of the federal PSD program.

COMMENTER 0006 – Peabody Energy Company ("Peabody" or "Company") is the world's 

largest private sector coal company. Our products fuel approximately 10 percent of America's 

and 2 percent of the world's generation of electric power. The Company supplies approximately

340 electric utility and industrial customers in about 40 states and 19 countries. In the United 

States, Peabody companies operate a number of surface and underground mines in the Illinois 

Basin that collectively produce about 32 million tons per year. Peabody companies also operate 

three large surface coal mines in the Powder River Basin of Wyoming that produce about 150 

million tons per year; an underground coal mine in Colorado that produces about 8.6 million tons 

per year; and three surface coal mines in the Southwest that produce about 14 million tons per 

year.

One of Peabody's surface mines in the Southwest is located on tribal lands of the Navajo Nation. 

The Navajo Nation currently does not have an EPA-approved tribal implementation plan for any 

programs under the Clean Air Act (CAA). As a result, CAA programs applicable to the 

Company's surface coal mine on lands of the Navajo Nation are administered by EPA.
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EPA Region IX has previously delegated its administrative authority under the part 71 federal 

operating permit program to Navajo Nation Environmental Protection Agency (NNEPA). 69

Fed.Reg. 67,578 (Nov. 18, 2004). In addition, EPA has recently promulgated federal new source 

review (NSR) rules in Indian country, and they contain provisions for EPA's administrative 

delegation of particular aspects of those rules to tribes. 40 C.F.R. §§ 49.161, 49.173.

As a result of Peabody's experiences with EPA's previous provisions for delegation of its 

administrative authority under other federal permit programs, Peabody has substantial interest in 

and concerns with the Agency's current proposal. As explained herein, the Company first 

questions the legal authority under the CAA upon which EPA relies to delegate its federal 

administrative authority to tribes. The Company also believes that the descriptive details and

explanations accompanying EPA's previous prescriptive rulemakings for administrative

delegation compel the Agency to do likewise for the instant administrative delegation provision.

Peabody also believes that EPA should state explicitly that a tribal agency with delegated 

administrative authority under the federal PSD program must apply the substantive and 

procedural federal regulations that address those program elements for which the tribe has been 

given responsibility. In order to provide clarity and certainty to regulators and regulated alike, 

EPA should also explain that the CAA prohibits a federal permit issued solely under a tribe's 

delegated administrative authority to be supplemented by requirements of non-federally

enforceable tribal regulations. Indeed, such a permit with added requirements based on tribal

regulations is no longer only a federal permit.

Finally, Peabody believes the proposed rulemaking must provide for a delegation agreement 

between EPA and the tribe. Regulatory requirements for the delegation agreement should be 

clear and explicit, and the associated preambles should expand on those criteria by explaining the 

legal stature and limitations of such a two-party agreement. The regulations should also make 

clear that eligibility for treatment as a state (TAS) is not a prerequisite for a tribe to receive 

EPA's administrative delegation under the federal PSD program.

1. EPA's Proposed Action and Peabody's Support for the Concept. EPA's original PSD 

program was promulgated in 1974. 39 Fed. Reg. 42,510 (Dec. 5, 1974) (codified at 40 C.F.R. 

§ 52.21). That federal program provided specific requirements for the "review of new sources" at 

§ 52.21(d) and for "public participation" at § 52.21(e). That federal program also provided for 

EPA's delegation of its administrative authority as follows: 

(f) Delegation of authority. (1) The Administrator shall have the authority to delegate 

responsibility for implementing the procedures for conducting source review pursuant to 

paragraphs (d) and (e), in accordance with subparagraphs (2), (3) and (4) of this 

paragraph.

* * * *

(4) The Administrator's authority for implementing the procedures for conducting source 

review pursuant to this section shall not be redelegated, other than to a regional office of 

[EPA], for new or modified sources which are located on Indian reservations ... 39 Fed. 

Reg. 42,517 (originally codified at 40 C.F.R. § 52.21 (f)) (emphasis added).

EPA's originally proposed PSD regulations had been unclear about what PSD functions the 

Administrator intended to delegate to states. In finalizing those federal regulations, EPA
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therefore explained that "the only functions [of the federal PSD program] which will be 

delegated to states will be the preconstruction review under paragraphs (d) and (e) [of § 52.21]." 

Id. at 42,512. The preambles to EPA's PSD rulemaking at that time contained no further 

substantive discussion of EPA's "delegation of authority."

Those original provisions for EPA's delegation of authority for states to administer federal PSD 

requirements are codified today at 40 C.F.R. § 52.21 (u). Now, however, EPA proposes to revise 

those federal PSD regulations in order to allow EPA also to delegate its authority to administer 

the federal PSD program to interested tribes. For the reasons explained below, Peabody strongly 

encourages EPA to defer its proposed action until the Agency not only explains the legal

authority underlying its process for administrative delegation but also provides a clear and 

complete explanation of the administrative delegation concept, including the relevant limitations 

on each delegate tribal agency.

Notwithstanding Peabody's reservations with the legal underpinning of EPA's delegation of 

administrative authority, and notwithstanding the current lack of clarity and consistency in the

Agency's process for administrative delegation, Peabody strongly supports EPA's efforts to build 

tribal capacities for implementing and enforcing CAA programs. Like EPA, the Company

believes it is important to provide opportunities to tribes to be involved with the implementation

of important CAA programs on tribal lands. Thus, Peabody emphasizes that its doubts about

EPA's legal basis for delegating its administrative authority should not be construed as the

Company's opposition to a fundamental concept that provides for tribal administration of

portions of the CAA.

2. EPA Must Explain the Underlying Legal Authority for the Agency's Delegation of Its 

Administrative Authority. The Agency's proposed action raises fundamental questions about 

the underlying legal basis upon which EPA relies to delegate its authority to administer federal 

CAA programs. The CAA plainly authorizes the Agency to approve state regulations developed

under state law for administering and enforcing different CAA programs. CM §§ 110(b), 110(k). 

The CAA also authorizes EPA to treat eligible tribes as states, leading to EPA approval of tribal 

regulations developed under tribal law for administering and enforcing different CAA programs. 

CAA § 301(d). Finally, the CAA also requires EPA to develop its own federal regulations for 

administering and enforcing a CAA program in the absence of EPA-approved state or tribal 

regulations for implementing that program. CAA § 110(c).

However, nowhere in the Act is it clear that EPA is allowed to delegate its federal authority to a 

state or tribe to administer EPA's federal regulations. An EPA notice of proposed rulemaking 

"must be accompanied by a statement of its basis and purpose[.]" CAA § 307(d)(3). 'The 

statement of basis and purpose shall include a summary of . . . the major legal interpretations and 

policy considerations underlying the proposed rule." Id. In the instant rulemaking proposal, 

however, EPA does not identify any particular legal authority for the Agency's "administrative 

delegation" to tribes. Instead, EPA merely states that "we are exercising our discretion to 

delegate administration of the Federal NSR program to interested and qualified Tribal agencies 

... " 76 Fed. Reg. 38,779.

Peabody believes EPA's cursory explanation of the basis for its proposed action falls far short of 

the statement of basis required by the Act. EPA must identify specific legal authority upon which 

the Agency relies to delegate its administrative authority under the PSD program to interested 
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tribes. Moreover, as explained below, Peabody believes that § 307(d)(3) also requires EPA to 

explain its legal interpretation of the scope of a delegate agency's authority under the CAA.

3. Regulations and Associated Preambles that Define and Describe the Administrative 

Delegation Process Are Necessary. EPA first provided a mechanism for delegating its 

administrative authority to a tribe as part of the federal operating permit program under 40 

C.F.R. part 71. Specific regulations addressing the requirements for administrative delegation 

and how it would be implemented were prescribed. 40 C.F.R. § 71.10. EPA accompanied its 

proposed rulemaking with more explicit discussions of the regulatory options for such 

administrative delegation and associated implementation procedures. 60 Fed. Reg. 20,811-12, 

20,822-24 (Apr. 27, 1995). EPA accompanied its final rulemaking with more details about the 

regulatory approach selected by EPA and why it made that selection and also with more details 

about procedural issues attendant to administrative delegation. 61 Fed. Reg. 34,215, 34,225-26 

(July 1, 1996).

EPA took the same rulemaking approach when it promulgated provisions for administrative 

delegation of the Federal Air Rules for Indian Reservations in Idaho, Oregon and Washington. 

40 C.F.R. § 49.122. Again, during both proposed and final rulemakings, EPA's accompanying 

preambles described how the administrative delegation process would work. 70 Fed. Reg. 

18,080-81, 18,084, 18,086 (Apr. 8, 2005); 67 Fed. Reg. 11,751-52 (Mar. 15, 2002).

Most recently, EPA has provided for administrative delegation in its federal minor new source 

review program in Indian country, 40 C.F.R. § 49.161, and in its federal major new source 

review program for nonattainment areas in Indian country, 40 C.F.R. § 49.173. As if to

acknowledge that its previous descriptions of the administrative delegation process were

incomplete and inconsistent, EPA's preambles to those most recent regulations are characterized 

by more thorough descriptions of how administrative delegation works and how administrative 

delegation differs fundamentally from program delegation. 76 Fed. Reg. 38,779-81 (July 1, 

2011); 71 Fed. Reg. 48,721-22 (Aug. 21, 2006).

EPA's regulation that would authorize administrative delegation to tribes under the federal PSD 

permit program must be accompanied by the same types of substantive, preambular discussions 

that EPA provided with prior administrative delegations under other federal permit programs. 

Indeed, the PSD regulation itself that provides for administrative delegation should be far more 

prescriptive, in keeping with those regulatory provisions for administrative delegation of other 

federal rules as cited above. In short, the approach that EPA has initially taken with the proposed 

rule in question is wholly unacceptable; it fails to provide the certainty, the clarity and the 

consistency that is needed not only by tribes seeking administrative delegation of PSD rules but 

also by regulated entities that would be subject to such delegated authority.

4. The Nature and Extent of EPA's Delegated Administrative Authority Must Be Clearly 

Defined. EPA paints its proposed delegation of administrative authority under the federal PSD

program as nothing more than "business as usual," explaining that the proposed action is

consistent with EPA's existing and well-established procedures for delegating 

administration of Federal CAA programs . . . - 40 CFR 71.40) and 71.10 (Federal 

operating permits), 40 CFR 49.122 (Federal air rules for Indian reservations in the Pacific 

Northwest), and 40 CFR 49.161 and 49.173 (NSR rules for Indian country).
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76 Fed. Reg. 82,236. While EPA may have existing procedures for "delegating administration of 

federal CM programs," those existing procedures, contrary to the Agency's assertion, are far

from being "well-established." Those procedures not only differ substantively in certain content,

but the Agency's explanations of how administrative delegation works with the different federal

programs are often inconsistent and seemingly conflicting.

For example, when EPA first developed federal PSD regulations in 1974, there were no

comparable state PSD regulations. See § 52.21(a) at 39 Fed. Reg. 42,514. Consequently, when a 

state was delegated authority under § 52.21 (u) to administer those original PSD regulations, the 

state obviously had no alternative but to apply the same federal PSD regulations that EPA would 

have otherwise applied. That same fundamental principle applies to EPA's administrative 

delegations under federal permit programs today. Yet EPA seems reluctant to state explicitly that 

a delegate agency must apply the federal regulations for the permitting functions for which that 

state/tribal agency has been delegated responsibility.

Until that legal obligation of a delegate agency is identified and explained by EPA, each delegate 

agency will be left to consider whether it may also apply its own state or tribal regulations when 

it exercises its delegated federal administrative authority. The unequivocal answer is “no"; when 

acting under EPA's delegation of administrative authority, a state or tribal agency must only

apply the procedural and substantive requirements of the federal program in question. In re West 

Suburban Recycling and Energy Center, L.P., 6 E.A.D. 692, 703-07 (EAB Dec. 11, 1996)

(hereinafter “WSERC").

a. EPA's Delegation of Administrative Authority Requires the Delegate Agency to Use 

Applicable Federal Regulations. EPA has not provided a substantive, informative discussion of 

the administrative delegation concept until the Agency's recent rulemaking for federal NSR rules 

in Indian country. EPA's prior discussions of administrative delegation generally have lacked 

clarity and consistency when defining the scope of a delegate agency's authority. The following

statements within the preamble to the final NSR rules in Indian country, however, speak to a

delegate agency's obligation to apply only the federal regulations of the federal program

functions for which the agency has been delegated responsibility:

• “[U]nder a delegated Federal program, the delegated Indian tribe would be assisting EPA with 

the administration of Federal requirements on EPA's behalf and under these Federal regulations. 

76 Fed. Reg. 38,767 (emphasis added).

• “ ... for delegating our Federal authority to states and/or tribes for administering Federal rules 

under the Act." Id. at 38,779 (emphasis added).

• “[T]he administrative delegation approach finalized in these rules provides for [EPA] to

delegate administration of the Federal program operating under Federal law to interested 

Tribes[.]" Id. at 38,780 (emphasis added).

• "The Federal requirements administered by the delegate Tribal agency will be subject to

enforcement by EPA under Federal law," Id. (emphasis added).

• "[A]ny permits issued under the Federal NSR program (even where issued by a Tribe acting on 

EPA's behalf pursuant to a delegation agreement) remain Federal in character[.]" Id. at 38,782

(emphasis added).
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In sum, when read objectively and in context, several statements in EPA's preamble to the final 

NSR rules in Indian country make clear that, when exercising its delegated authority to

administer a federal CAA program, a tribal agency must only apply the federal regulations of

that program. Left unstated is the important corollary to that legal principle, i.e., that EPA's

administrative delegation neither requires nor authorizes the delegate tribal agency's use of any

tribal regulations.

That latter point was directly addressed by EPA when it developed its regulations for

administrative delegation of the part 71 federal permit program. As EPA explained,

Two commenters requested that EPA include in part 71 the analogue to section 

70.6(b)(2), a provision that requires the permitting authority to identify in the permit any 

applicable requirements that are not federally enforceable. The EPA disagrees with this 

request because part 71 permits will not include any non-federally enforceable applicable 

requirements[.] 

61 Fed. Reg. 34,219 (July 1, 1996) (emphasis added). In other words, even when issued by a

tribal agency having been delegated authority to administer a part 71 program, a part 71 federal

operating permit must not contain any requirements based on tribal regulations.

That is not to say that a delegate tribal agency is prohibited from issuing a joint permit that 

contains both federal permit requirements based on a federal permit regulations as well as tribal 

permit requirements based solely on "tribal-only" (non-federally enforceable) permit regulations. 

It just means that the federal portion of any joint permit may not contain any requirements based 

on non-federally enforceable tribal regulations. See WSREC at 703-07.

The CAA's prohibition of tribal regulations in a federal permit, issued by either EPA or a

delegate tribal agency, was confounded by other EPA preamble language during the Agency's

development of the part 71 federal permit program. When EPA originally proposed the concept

of administrative delegation of authority to administer a part 71 federal permit program, EPA

contemplated one possible regulatory approach whereby part 71 federal regulations would be

"customized" to fit the unique needs of each state or tribal lands where that federal program

would be administered. 61 Fed.Reg. 34,213.

That candidate approach to part 71 envisioned that each state or tribe would have its own EPAapproved part 71 federal permit regulations and that EPA would need a "national template" only 

to fill in the gaps of deficient state or tribal part 71 programs. Id. Against that background for one 

potential approach where each state or tribe would have its own "customized" federal operating 

permit regulations, EPA explained that:

The EPA would not demand that each delegate agency administer a part 71 program in 

precisely the same way because each delegate agency would have to comply with its own 

procedures, administrative codes, regulations, and laws as well as the requirements of this 

part [71 ].

60 Fed. Reg . 20,823 (Apr. 27, 1995) (emphasis added). When EPA's statement above is read out 

of context, one would conclude that a delegate agency administering a part 71 program would 

need to rely on its own procedures, administrative codes, regulations, and laws. That conclusion 
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is erroneous, however, because EPA's final part 71 federal program was not based on an 

individualized or "customized" approach for each state or tribe as originally contemplated.

Instead, EPA's ultimate design of its part 71 program was based on a "national template"

approach whereby the same basic federal program would be applied by EPA and by each

delegate agency. EPA's choice of a "one-size-fits-all" regulation for part 71 therefore obviated

the need for each delegate agency to have its "own procedures, administrative codes, regulations, 

and laws" to administer its delegated responsibilities. Instead, the delegate agency needed only to 

use the uniform federal regulations of part 71.

Just like EPA does for administrative delegations under the part 71 federal operating permit 

program and the part 49 federal regulations for NSR in Indian country as well as for particular 

federal rules for certain Indian reservations in the Pacific Northwest, EPA's pending

administrative delegation to a tribe under the part 52 federal PSD program will require the

delegate agency to apply the substantive and procedural regulations of the federal program. EPA 

must make the scope of that proposed administrative delegation to tribes completely clear.

b. EPA's Delegated "Program Authority" Requires the Tribal Agency to Use Applicable EPAapproved Tribal Regulations. EPA's description of administrative delegation during its 

rulemaking for NSR in Indian country was undoubtedly clearer than its past descriptions due to 

the Agency's juxtaposition of that delegation concept with the contrasting concept of "program 

delegation." In particular, EPA provided the following explanations about program delegation:

• Program delegation is implemented with the Treatment-As-a-State (TAS) process under the 

Tribal Air Rule (TAR) whereby EPA approval is required for the tribe to run a CAA program 

under tribal law. Id. at 38,780 (emphasis added).

• "Where we [EPA] approve a Tribal eligibility application and approve a Tribal NSR program,

the approved Tribe will manage the program under Tribal law and the Tribal program becomes

Federally enforceable." Id. (emphases added).

In other words, when EPA approves a "program delegation" for a tribe, the Agency approves the 

tribal program (tribal regulations) developed under tribal law as satisfying all pertinent 

requirements of the CAA. The tribal agency is thus authorized to run that tribal program under 

the CAA rather than to run the federal program (federal regulations) as a delegate agency on 

EPA's behalf.

c. Conclusion. Aside from "administrative delegation" and "program delegation," EPA does not 

have a third delegation concept whereby a federal permit issued solely under a delegation of

administrative authority may nevertheless be supplemented with tribal requirements based on

tribal-only (non-federally enforceable) regulations. Therefore, EPA must take the existing

uncertainty out of its administrative delegation process, so a delegate agency knows the limits on 

its federal authority and affected permit applicants have certainty about how their actions will be 

regulated.

In particular, EPA should state succinctly that a tribal agency which has been delegated

administrative authority must apply only the federal regulations applicable to the federal

requirements which the tribe has been authorized to administer. EPA should further state clearly

that a tribal agency which has been delegated program authority must apply only the tribal 
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regulations developed under tribal law for the EPA-approved tribal program. Simply put, a

delegate tribal agency's administration of a federal CAA program does not rely on tribal

regulations, and administration of an EPA-approved tribal CAA program does not rely on federal

regulations.

5. The Nature and Extent of Required Tribal Authority for a Delegate Agency Must

Be Clearly Defined. In seeking EPA's administrative delegation under the part 71 federal 

operating permit program, a tribe must submit a legal opinion "stating that the laws of the ... 

Indian tribe provide adequate authority to carry out all aspects of the delegated program." 40 

C.F.R. § 71.10(a). One tribe interprets that provision as "a federal requirement for tribes to have 

their own authorities to administer the part 71 program, including authorities for permit 

processing, monitoring and reporting, and permit enforcement." In re Peabody Western Coal 

Company, CAA Appeal No. 11-01 (EAB May 16, 2011) (Petition for Review, Ex. I (NNEPA 

Responses to Comments on Draft Revised Part 71 Permit and Draft Revised Statement of Basis, 

9 (Feb. 28, 2011))). Peabody believes that interpretation vastly over-states the actual tribal 

authority required for a tribe to be delegated federal administrative authority.

EPA's more recent rulemaking for administrative delegation under the federal NSR rules in 

Indian country confirms the Company's opinion. In lieu of requiring a tribe to have "adequate

authority to carry out all aspects of the delegated program," EPA's latest administrative

delegation provision only requires "a description of the laws of the Tribe that provide adequate

authority to administer the Federal rules and provisions for which delegation is requested." 40

C.F.R. § 49.161(b)(1)(C) (emphasis added). EPA's latter language concerning the scope of tribal 

authority needed by a tribe seeking administrative delegation makes clear that the delegate 

agency will be "administer[ing] the Federal [part 52 PSD] rules and provisions" and not any 

separate tribal permitting regulations. Moreover, EPA's discussion of administrative delegation 

under federal NSR rules in Indian country makes clear that the delegate tribal agency will have 

no enforcement authority for the federal rules that it will administer. 76 Fed. Reg. 38,780 ("The 

Federal requirements administered by the delegate Tribal agency will be subject to enforcement 

by EPA under Federal law.").

Peabody believes that substantial uncertainty currently exists among tribes and regulated entities 

about the nature and extent of tribal authority required of a tribe seeking administrative 

delegation under a federal permit program. Just as EPA has done with its federal NSR rules in 

Indian country, the Agency's administrative delegation provisions in the federal PSD rules must 

clearly explain that tribal law needs only to authorize the applicable tribal agency to administer 

the federal PSD rules and provisions for which it is delegated responsibility.

6. A Requirement for a Delegation Agreement Is Appropriate and Necessary. Consistent 

with EPA's regulations for administrative delegation of other federal rules, the proposed rule 

must require a delegation agreement between EPA and the delegate tribe. That proposed 

regulatory provision and the accompanying preamble must clearly describe what the delegation 

agreement does and does not do.

In particular, the delegation agreement should identify the specific federal PSD rules that the 

delegate tribe will have the responsibility for administering. The delegation agreement should 

also explain that EPA is not delegating any federal enforcement authority. The delegation 
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agreement should be so explicit as to explain that the delegate agency "acts in EPA's shoes," 

administering the delegated provisions as EPA would otherwise do.

EPA must also explain that the delegation agreement does not constitute rulemaking under the 

CAA, and therefore any provisions of the agreement are not binding against third parties, i.e., 

those provisions are not enforceable against any source. EPA must further explain that any

conflict between a provision in the federal PSD regulations and its counterpart in the delegation 

agreement will be governed by the PSD rules.

In sum, a delegation agreement is an integral component of any EPA administrative delegation to 

a tribe. A delegation agreement must be required by the instant rulemaking, and that agreement 

must clearly define the precise limitations on the federal authority and scope of responsibility of 

any delegate tribe.

7. Tribal Eligibility for Treatment as a State Is Not Required for Delegation of

Administrative Authority. Tribes do not need to seek treatment as a state (TAS) under the 

tribal air rule (TAR) in order to request EPA's delegation of administrative authority for 

particular federal NSR rules in Indian country. 76 Fed. Reg. 38,780. However, tribes requesting 

EPA's delegation of administrative authority for particular federal operating rules must first 

obtain TAS eligibility. 40 C.F.R § 71.10(a) (Administrator may delegate authority to administer 

a part 71 operating permits program to an "eligible" Tribe).

Peabody believes this substantive difference in the two processes for administrative delegation is 

due to EPA's recognition, after promulgation of § 71.10(a), that eligibility for treatment as a state 

is not a prerequisite for EPA's administrative delegation to a tribe. Peabody, therefore, believes 

that the preamble to the instant rulemaking must clearly explain that a tribe seeking 

administrative delegation of part 52 federal PSD rules does not have to demonstrate eligibility

for treatment as a state.

In closing, Peabody thanks the Agency for this opportunity to review and comment on the 

proposed rulemaking that would allow EPA to delegate its administrative authority under the

part 52 federal PSD program to tribes. Peabody supports the basic concept underlying the

proposed action, i.e., to assist tribes in building greater capacities to implement and enforce CAA 

programs on lands of those tribes. Peabody cannot, however, endorse EPA's proposed approach 

for doing so because it does essentially nothing more than delete some regulatory language and 

add a little new regulatory language. Substantive regulatory provisions for implementing EPA's 

administrative delegation to tribes under the federal PSD program are missing. Clear and 

consistent preambular explanations of the individual regulatory provisions and the basis for them 

are likewise missing.

EPA must understand that a cloud of confusion and uncertainty continues to hang over EPA's 

administrative delegation process. If EPA intends to promulgate an effective and understandable 

regulation for delegating administrative authority under the federal PSD program to tribes, then 

EPA has substantial work left to do before finalizing that regulation.

The existing proposal glosses over all important legal and administrative principles related to the 

Agency's administrative delegation process, thus failing to satisfy the fundamental statutory

requirements for rulemaking under section 307(d) of the CAA. Given the significant omissions 
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and deficiencies in the proposed rule and accompanying preamble, Peabody believes EPA has no 

recourse but to issue a supplemental proposal that addresses the various concerns expressed 

herein.

RESPONSE –

Issue 1 – Support – The EPA appreciates the commenter’s strong support for efforts to build 

tribal capacity for implementing and enforcing CAA programs and recognition of the fact that it 

is important to provide tribes opportunities to be involved in implementation of CAA programs 

in Indian country. The EPA addresses the issues raised by the commenter in turn below.

Issue 2 – Legal authority for administrative delegation – Section 301(a) of the Clean Air Act

(the Act), authorizes the Administrator to “prescribe such regulations as are necessary to carry

out [her] duties under [the Clean Air Act].” 42 U.S.C. §7601(a). The Administrator’s duties 

under the Clean Air Act include establishing a Federal Implementations Plan for issuing PSD 

permits where a state lacks an approved PSD program in its SIP. 42 U.S.C. 7410(a)(2)(C); 

7410(c). Carrying out that duty is facilitated by having a mechanism through which state, local 

and tribal governments can apply to the EPA for authorization to administer the federal PSD 

permitting regulations on behalf of the EPA. This type of a delegation to state and local air 

pollution control agencies serves both to conserve Agency resources for use in implementing the 

PSD program and various other provisions of the Act and encourages state and local agencies 

which have not otherwise obtained approval of a state implementation plan (SIP)-based PSD 

program to nevertheless take on certain implementation responsibility by assisting the EPA with 

administration of the Federal PSD Program through the delegation. The Administrator previously

exercised its section 301(a) rulemaking authority for this purpose in establishing what is now 40 

C.F.R. 52.21(u) authorizing the administrative delegation of the Federal PSD Program (40 

C.F.R. 52.21) to state and local agencies. The same rationale applies equally to administrative 

delegation of the Federal PSD Program to tribal governments. In fact, there is even greater 

reason to allow tribes to accept delegation of the Program as it will assist them in developing the 

capacity needed to establish and implement their own programs in the future should they choose 

to do so. As a result, and as explained in the preamble to the proposed rule, the Administrator is 

exercising authority under §301(a) to enable tribal governments to assume this authority and 

removing a restriction in existing regulations on the delegation of the Federal PSD Program to 

tribal agencies. By establishing this mechanism for carrying out the Administrator’s duties 

through rulemaking, the EPA’s action is fully consistent with Congress’ enactment of §301(d) of 

the Act in the Clean Air Act Amendments of 1990. 

As with the existing mechanism in place for state and local governments under 52.21(u), 

the amended version of this regulation simply authorizes tribal governments to administer a PSD 

permitting program on behalf of the EPA and to apply the same provisions of federal law that the 

EPA would otherwise apply in the absence of the delegation. See, In re Seminole Electric 

Cooperative, PSD Appeal No. 08-09, Slip. Op. at 8 (EAB Sept. 22, 2009) (a delegate “acts on 

behalf, or ‘in the shoes’ of EPA.” 45 Fed. Reg. 33290, 33413 (May 19, 1980) (“A delegate under 

section 52.21(u) stands in the shoes of an EPA Regional Administrator.”). The authority of a 

delegate agency to review PSD permits applications stems solely from a Delegation Agreement 

with an EPA Regional Office, and a delegate acts only to implement federal PSD requirements. 

West Suburban Recycling & Energy Ctr, L.P., 6 E.A.D. 692, 703 (EAB 1996). The powers 

conferred under a delegation agreement are limited only to exercising the federal PSD authority 
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contained in 40 CFR 52.21. Id. at 704. A delegate is responsible for conducting its review and 

making its permitting decision on the basis of the federal PSD program provisions contained in 

40 C.F.R. s. 52.21. Id. at 707. Thus, this regulation provides no greater authority to tribal 

governments than Congress provided to the Administrator under section 165 of the Clean Air 

Act and that an EPA Regional Office may exercise under 40 C.F.R. 52.21. 

The final action produced under this process is ultimately action of the United States 

Environmental Protection Agency. Seminole Electric, Slip. Op. at 8 (“state-issued permits are 

federal permits”); 45 Fed. Reg. at 33413 (May 19, 1980) (“a permit issued by a delegate is still 

an EPA-issued permit.”). As a result, any administrative or judicial review of delegate’s PSD 

permitting decision must be in accordance with federal procedures in 40 CFR 124.19. West 

Suburban at 703. A party that seeks review of a permitting decision by a delegate under 52.21(u) 

must first file an administrative appeal with the EPA’s Environmental Appeals Board. 40 C.F.R. 

124.19(l)(1). When these review procedures are exhausted (40 C.F.R. 124.19(l)(2)), a permit 

issued by a delegate agency under 52.21(u) is reviewable in federal court pursuant to section 

307(b) of the CAA and considered an action by the EPA. Permits issued by delegated agencies

under section 52.21(u) have been reviewed in Federal court, and the courts have not questioned 

the ability of the EPA to delegate its federal authority. Sierra Club v. EPA, 499 F.3d 653, 654

(7th Cir. 2007) (“The federal Environmental Protection Agency (actually, Illinois's counterpart to 

the EPA, exercising authority that the federal EPA had delegated to it, but we can ignore that 

detail) issued a permit to Prairie State Generating Company”); Memorandum Opinion, ChabotLas Positas Community College District v. EPA, Case No. 10-73870 (9th Cir. May 4, 2012) 

(“Petitioner ... seeks review of a federal Prevention of Significant Deterioration (‘PSD’) permit 

issued to the Russell City Energy Center ... , by the Bay Area Air Quality Management District 

..., on behalf of the Environmental Protection Agency, pursuant to section 165 of the Clean Air 

Act (‘CAA’), 422 U.S.C. § 7475.”)

The EPA notes that the second sentence of section 301(a) provides the Administrator the 

authority to delegate any of her powers and duties under the Act, except the making of 

regulations subject to §307(d) of the Act, as she may deem necessary or expedient to any officer 

or employee of the EPA. While this section does not directly address the delegation of powers to 

persons other than employees of the EPA, nothing in this provision indicates that it is intended to 

preclude the Administrator from providing for the delegation of certain of her authorities to 

entities that are not officers or employees of the EPA through notice and comment rulemaking. 

This second sentence establishes the Administrator’s authority to make internal delegations 

without the need for rulemaking. This sentence contains no language to indicate that it is the 

exclusive form of delegation that the Administrator may consider, or that this second sentence 

functions as a limitation on the Administrator’s rulemaking authority under the first sentence of 

section 301(a). 

The EPA clearly stated in the preamble to the proposed rule that its purpose was to 

correct certain outdated language that currently limits the EPA’s ability to delegate the Federal 

NSR PSD program to interested Indian tribes and that the proposed action was consistent with 

the EPA’s existing and well-established procedures for delegating administration of Federal 

CAA programs, including delegation of the Federal NSR PSD program pursuant to 40 CFR 

52.21(u). The EPA cited section 301(a) of the Clean Air Act as the source of authority for the 

proposed rulemaking, and the nature of this delegated power is well-established in decisions of 

the EAB and other EPA resources. The EPA thus provided both notice of its purpose and a 
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summary of the major legal interpretations and policy considerations underlying the proposed 

rule sufficient to satisfy the requirements of CAA section 307(d)(3). The EPA does not believe it 

is necessary to supplement this information by reproposing the proposed rule.

Issue 3 – Describe administrative delegation process in the preamble and include 

regulatory provisions which embody that process - Delegations under section 52.21(u) are 

made effective through a delegation agreement between the appropriate EPA Regional Office 

and the delegate. Since the EPA’s practice of effectuating a delegation under this provision 

through an agreement with the delegate has functioned smoothly for many years while providing 

flexibility to Regional Offices and their delegates to customize the process, the EPA does not 

believe that additional regulatory language is needed in 52.21(u) to prescribe a specific 

procedure for the delegation process. Furthermore, the proposed rule did not contain language to 

codify the procedure of using a delegation agreement. However, the EPA agrees with the 

commenter that it would be helpful to provide tribal governments and the regulated community

with an explanation of how EPA has administered the delegation process under section 52.21(u) 

for the Federal PSD Program and for the EPA to affirm that it intends to continue using this 

approach when applying this provision to tribal governments. 

The provision now designated as section 52.21(u) has been in place, in one form or 

another, since the federal Prevention of Significant Air Quality Deterioration rule was first 

promulgated in 1974. (See, 39 Fed. Reg. 42510, 42517, December 5, 1974.); 45 Fed. Reg. 33290 

(May 19, 1980). Over time, the EPA has used that provision to successfully delegate authority to 

implement the Federal PSD Program to numerous state and local air pollution control agencies. 

See e.g. 46 Fed. Reg. 9580 (Jan. 29, 1981) (delegations to states in Region 5). Those delegations 

are authorized by the EPA’s Regional Offices, and the process for accomplishing such 

delegations varies somewhat from Region to Region. Regardless of the exact process used, 

however, the specifics of the delegation are embodied in a formal delegation agreement. The

EPA believes that the many prior successful delegations carried out under section 52,21(u) 

provide an appropriate background of experience for the Agency as it moves forward with 

including interested tribes as potential delegate agencies. The EPA expects that the same 

procedures that have been used with state and local agencies will prove relevant and equally

successful as tribes begin to seek administrative delegation of the Federal PSD Program and that 

the precise details and functions at issue with any particular delegation will – as they have been 

with states and local agencies – be memorialized in an applicable delegation agreement between 

the EPA and the delegated tribal governing body. As a result, the EPA does not believe that

further discussion of a particular approach to accomplishing a delegation in the context of 

removing the restriction on delegating the Federal PSD Program to tribal governments is needed.

The EPA notes that it has since written additional regulations that include somewhat 

more detailed delegation provisions. With regard to delegations to tribes, these include, for 

instance, the Federal Air Rules for Indian Reservations in Idaho, Oregon and Washington and the 

rule titled Review of New Sources and Modifications in Indian Country. In those cases, the EPA 

was establishing new regulatory programs for areas of Indian country, including newlyestablished administrative delegation opportunities and procedures. In each case, the EPA 

provided a discussion of the delegation process that was appropriate for the new programs. By

contrast, as discussed above in the case of 52.21(u), the EPA already has a substantial body of 

experience and history applying that provisions that one can look to for guidance. The EPA 

believes the various provisions EPA has established for administrative delegations are 
15

appropriate for the particular programs in which they are included. As a result, some of the more 

recent regulatory provisions differ from 52.21(u) in some respects. 

Issue 4 – Clearly define the nature and extent of delegated administrative authority - An 

administrative delegation of authority to assist the EPA with implementation of the Federal PSD 

Program pursuant to 40 CFR 52.21(u) is by its very nature limited in scope. It only authorizes 

implementation by the delegate agency of the substantive provisions of the Federal PSD Program 

as defined in 40 CFR 52.21 and the applicable procedural requirements in 40 C.F.R. Part 124, 

which are incorporated by reference in section 52.21(q) of EPA’s regulations. West Suburban at 

704. As discussed above, the delegate agency “stands in the shoes of the Regional Administrator 

[and must] follow the procedural requirements of Part 124.” 

Since a delegation agreement merely authorizes the delegate to administrator federal law 

requirements on behalf of the EPA, the delegation agreement does not expand the scope of 

federal law or restrict or limit legal authority that the delegate agency otherwise possesses under 

state, local, or tribal law. A delegation under 52.21(u) grants authority to administrator federal 

law in section 52.21 to issue a permit that is necessary to satisfy the requirements of section 165 

of the Clean Air Act. It does not alter or restrict separate legal requirements that may exist under 

state or tribal statutes and regulations. Thus, to the extent a statute or regulation in state or tribal 

law gives a state or tribal government a particular regulatory authority, that regulatory authority 

is not removed or limited by the delegation of additional federal authority from an EPA Regional 

Office. To the extent they have additional requirements in tribal law, tribes (just like states and 

local agencies) that have taken delegation of the Federal PSD Program can also choose to issue a 

single permit document that includes requirements of tribal law in addition to those specified in 

40 CFR 52.21. See, In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121 (EAB 1999); In re: Peabody 

Western Coal Co., CAA Appeal No. 11-01, Slip. Op. at 12 (EAB March 13, 2012). Any such 

tribal requirements would not, however, become requirements of federal law or be federally

enforceable unless they are embodied in an EPA-approved Tribal Implementation Plan (TIP). 

Likewise, a delegation of federal authority does not expand the criteria applicable to a PSD 

permitting decision under federal law. A tribal delegate under 52.21(u) may not deny a federal 

PSD permit based solely on the basis of a failure to comply with tribal permitting requirement or 

other tribal law. West Suburban, 6 E,A,D, at 707-8. 

As long as it ensures that Part 124 procedures are satisfied at the same time, a tribe (or a 

state or local agency) to which the authority to implement the Federal PSD Program is delegated 

does have some ability to apply its own procedural requirements to supplement the Part 124 

procedures. See, Peabody Western Coal, Slip Op. at 16. Any such procedural requirements may

be reflected in the delegation agreement between the EPA and the delegate agency but may not 

supplant the Part 124 procedures. West Suburban at 707. 

Issue 5 – Clearly define the nature and extent of required tribal authority for a delegate 

agency - The EPA notes that where the Agency delegates administration of the Federal PSD 

Program to a state, local agency, or tribe, the program remains applicable to the regulated 

sources under federal legal authority established under the Clean Air Act and EPA’s regulations. 

As such, none of those entities need to have PSD program requirements in their state, local, or 

tribal laws. The transfer of federal authority to a delegate that lacks the organic authority to issue 

PSD permits meeting federal requirements is a key element of the delegation arrangement under 

52.21(u) that separates this approach from an EPA-approval for a state to administer a PSD 
16

program under its own authority. Seminole Electric at 9. However, delegated agencies do need to 

have sufficient legal authority under state, local, or tribal law to enable them to assist in the 

administration of the program and to apply the Federal PSD Program regulations that provide the 

source of PSD permitting authority under the delegation.

 

Issue 6 – Delegation agreement – The EPA anticipates that consistent with prior delegations to 

states and local agencies the scope, including any limitations, of an administrative delegation of 

the Federal PSD Program to a tribe would be reflected in a formal delegation agreement. The 

delegation agreement would also delineate any provisions/requirements, if any, for which the 

EPA will continue to remain responsible even after the delegation. For example, under many of 

the EPA’s PSD program delegation agreements, the EPA retains responsibility for ensuring that 

the requirements of the Endangered Species Act are met. The EPA will always retain authority 

for enforcing the requirements of the Federal PSD Program under federal law. The EPA agrees 

with the commenter that the delegation document is not subject to notice and comment 

rulemaking. For the reasons discussed above, the EPA does not, however, believe that it is 

required to fully delineate the precise parameters of this process or to mandate the use of such a 

document in amending 40 C.F.R. 52.21(u) to remove the restriction on delegating the Federal 

PSD Program to tribes. 

Issue 7 – TAS applicability and delegation – The EPA agrees that it is not necessary for a tribe 

to seek or obtain treatment in the same manner as a state (TAS) status as a prerequisite to being 

granted administrative delegation of the Federal PSD Program. Amended 40 C.F.R. 52.21(u) will 

itself put tribes on an equal footing with state and local air pollution control agencies for 

purposes of taking delegation to assist the EPA with administration of the Federal PSD Program.