Treatment as a State and Other Ways to Manage Air Quality in Indian Country

Rich McAllisterUS EPA Region 10

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Overview

Clean Air Act alternatives

- Treatment in the same manner as a state

- Tribal Implementation Plans

- Federal Implementation Plans Tribal inherent authority Delegation Funding alternatives

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What is TAS?

Congress gave EPA authority to treat tribes in same manner as the statute treats states

1990 Clean Air Act Amendments Section 301(d)

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How is a Tribe eligible for TAS?

Federally recognized Governing body carrying out

substantial duties and powers Jurisdiction or authority over area or

activities to be regulated Capable of carrying out activities

necessary to administer program

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TAS under the CAA

Section 301(d)(2) authorizes TAS where

“The functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction;”

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Tribal Implementation Plans under the Sec. 110(o)

Implementation plans submitted by tribes shall be reviewed in the same manner as state plans.

An approved TIP “shall become applicable to all areas . . . located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.”

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EPA’s 1998 Tribal Authority Rule

Sec. 301(d)(2) required EPA to promulgate regulations specifying CAA provisions appropriate for TAS

EPA’s final Tribal Authority Rule (TAR) published Feb. 12, 1998, with rules at 40 C.F.R. Part 49.

TAR affirmed by U.S. Court of Appeals for District of Columbia Circuit in Arizona Public Service Co. v. EPA. 211 F.3d 1280 (D.C. Cir. 2000), cert. denied 121 S. Ct. 1600 (2001).

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CAA Delegation of Authority

EPA interpreted CAA as statutory grant by

Congress of jurisdictional authority to Tribes

over Indian and non-Indian sources within

reservation boundaries

For areas outside boundaries of reservation,

the application must demonstrate tribal

inherent authority

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Tribal Implementation Plans

A tribe with TAS may develop air programs under tribal law, subject to approval by EPA

Tribes are not bound by CAA deadlines for submittal of implementation plans

Tribes may operate CAA programs using a modular approach, or may chose to not undertake air quality work under CAA

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Other Issues from the TAR

Tribes seeking TAS for Title V program may demonstrate use of alternative review procedures (don’t need “judicial” review “in state court”)

Tribes need not demonstrate criminal enforcement authority over everyone

EPA later clarified public could submit comments on TAS applications directly to EPA [65 FR 1322, 1/10/2000]

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How to Show Authority for TAS

For applications covering areas within a reservation, the exterior boundaries must be identified with clarity and precision

“Reservation” includes lands held in trust for tribe (Tribal trust) and Pueblos

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EPA’s TAS Review ProcessEPA’s TAS Review Process

Tribe submits application (pre-submittal discussions with Region for programs) for each section of law

EPA Region determines completeness EPA offers state a chance to comment on all

CAA TAS; newspaper notice EPA Headquarters review possible Final decision by Regional Administrator

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TAS Application Notice

EPA’s determination concerning the reservation boundaries or tribal jurisdiction over non-reservation areas apply to all future CAA applications from that tribe and no further notice to governmental entities shall be provided, unless the application presents different jurisdictional issues or significant new factual or legal information relevant to jurisdiction. See 40 C.F.R. § 49.9(f)

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TAS DecisionsTAS Decisions

28 Tribes eligible for TAS to receive grants under sec. 105 of CAA

10 Tribes eligible for treatment as “affected state” under sec. 505(a)(2) of CAA

2 Tribes eligible for sec. 110 TIP

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ApprovedTribal Implementation Plans

Saint Regis Mohawk Tribe of New York, Dec. 10, 2007 (72 FR 69618) Ambient air quality standards, permitting,

open burning, review state permits and regional haze

Mohegan Tribe of Connecticut, Nov. 14, 2007 (72 FR 63988) Nitrogen Oxide emissions for ground level

ozone

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TAS ConsiderationsTAS Considerations

Once TIP is approved by EPA, tribe’s rules are federally enforceable

Compliance with EPA-approved TIP means compliance with CAA

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Government Accountability Office Review of TAS

GAO evaluated EPA’s TAS review process

Findings: EPA’s reviews take too long;

(generally 1–4 years)

Recommendation: Develop a written

strategy, with

Time frames for review process

Greater transparency

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EPA’s TAS Strategy

Common expectations Tools for tribal applicants Internal review procedures Open communication with tribal applicants Reaching out to other governments and the

public

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Clean Air Act TAS for Programs

Attachment F: “Procedural Steps for Processing Tribal Applications for TAS Eligibility for Regulatory Programs under the Clean Air Act.”

Attachment G lists regulatory provisions governing TAS eligibility under CAA Provides examples of documentation for

addressing those provisions

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EPA’s Direct Implementation Authority under the CAA in Indian

Country

In TAR preamble, EPA stated it will protect air

quality throughout Indian Country by directly

implementing CAA's requirements under authority

of sec. 301(d)(4) where Tribes have chosen not to

develop or are not

implementing a

CAA program

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Federal Implementation Plans

CAA gives EPA discretionary authority to promulgate Federal Implementation Plan (FIP) provisions as “necessary or appropriate” to protect air quality within specific areas of Indian Country. 40 CFR § 49.11(a)

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FIPs that Have Been Issued

Prevention of Significant Deterioration rules for Indian Reservations, 40 CFR 52.21 (1978)

Tri-Cities landfill, Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (1999)

Astaris-Idaho LLC Facility (formerly FMC Corporation) in Fort Hall PM10 Nonattainment Area, 40 CFR 49.10711 (2000)

Federal Air Rules for Reservations (FARR) in EPA Reg. 10, 40 CFR Part 49, subpart C and M (2005)

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Region 10 FARR

Federal Air Rules for Reservations (FARR), published April 8, 2005

Create basic federally-enforceable FIPs for 39 Indian reservations in ID, OR, & WA to protect human health and environment

Proposed rule 67 FR 11748-11801, March 15, 2002; final rule 70 FR 18074, April 8, 2005; General Federal Implementation Plan Provisions at 40 CFR Part 49, subpart C; Reservation Implementation plans at 40 CFR Part 49, subpart M

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FARR FIPs at 40 CFR § 49.131General Outdoor Burning Rules

Identifies materials that cannot be burnedAuthorizes burn bans to protect air quality

Garbage burning is now the nation’s largest source of dioxin emissions.

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FARR FIPs: Industrial Rules 40 CFR § 49.124 - 130

Visible emission limits

Particulate matter limits

Fugitive emission limits

Sulfur dioxide limits Sulfur in fuel limits

industrial rules

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40 CFR Part 71 Title V Regulations for Major

Stationary Sources of Air Pollution

Title V permits only contain “applicable requirements”, as defined in 40 CFR §71.2. In the absence of such requirements, EPA issues “hollow” permits

Requirements of TIPs and FIPs must be included in Title V air operating permits issued to major stationary sources located where TIP and FIP apply

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FARR FIPs: Burn Permits

Nez Perce and Umatilla Reservations: Agricultural, Forestry & Open Burning Permits

Photo UC Davis Fire Department

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FARR FIPs: Infrastructure Rules

Delegation to Tribes § 49.122

General provisions and definitions

Air episodes & emergencies

Registration of sources Non-Title V operating

permits § 49.139 Atmospheric haze and air pollutionPhoto Southern Alliance for Clean Energy

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First Year of Implementation

Outreach workshops FARR website developed FARR Hotline Burn bans called with daily

conference calls to coordinate with tribes and state and local agencies

Delegation agreements in place for four tribes

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Implementation So Far Over 100 source registered Several Part 71 Title V

permits issued with FARR requirements

Nine “synthetic minor” permits issued to avoid major source requirements

12 burn bans called Several enforcement actions

for violating a FARR requirement

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Proposed Preconstruction New Source Review Rules

Nonattainment Area Major NSR PermitsSources with at PTE at least 100

tons/year (or lower for some pollutants)Requires Lowest Achievable Emission

Rate technology (LAER)Emission offsets

Minor NSRSources above thresholdsSynthetic minor sources

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The Inherent Authority of Tribes

Indian tribes were independent, self-governing societies long before contact with European nations

The U.S. recognizes tribes as “distinct, independent political communities” qualified to exercise powers of self-government by reason of their original tribal sovereignty

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The Jurisdiction of Tribes Authority to protect tribal self-government and

to control internal relations Subject to the plenary power of Congress (may

be unilateral) Authority over nonmembers as granted or

delegated by Congress Inherent authority to regulate nonmember

conduct is limited

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Enforcement of Tribal Requirements

Key issue: Does tribe wish to establish civil requirements under tribal law enforceable against both members and nonmembers in Tribal Court?

Requires both Tribal Regulatory and Tribal Adjudicatory jurisdiction

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Montana v. United States 450 U.S. 544 (1981)

In general, absent express authorization by federal statute or treaty, a tribe’s inherent power over nonmember activity on fee lands does not reach beyond what is necessary to protect tribal self-government or to control internal relations

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The Montana Test Exceptions

(1) Consensual relationships, or (2) The conduct of non-Indians on fee lands within the reservation when that conduct “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

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Tribal Inherent Authority under the CWA and SDWA

For approval to administer water quality standards program, EPA “will require a showing that the potential impacts of regulated activities on the tribe are serious and substantial.”

Tribe also may be able to show jurisdiction though consensual relationship established by contracts, leases, or other written arrangements

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Potential Air Quality Non-Regulatory Roles

Indoor air quality monitoring and other indoor work

Woodstove change outsOutreach and educationSolid waste management

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EPA Program Delegation

Delegate authority to a tribe to assist EPA administer a specific Federal air rule, while EPA retains responsibility for enforcement

Delegation allows the tribe to gain experience by assisting with implementation of Federal rules while deciding whether to establish tribal air program under CAA or tribal law

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Delegating EPA’s Title V Program

Delegation rules for Part 71 program in 40 CFR §§ 71.4(j) and 71.10

Eligible tribe must meet TAS criteria Permit fees must cover “permit program

costs” with fees based up tons of emissions from source

Delegated tribe may collect fees for fully delegated part 71 programs

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Delegation of the Part 71 Program to the Navajo Nation

14 Title V sources on Navajo Nation Permit fees must be sufficient to cover “permit

program costs” Navajo Nation sought delegation of EPA’s Part

71 program before applying for TAS and a Part 70 operating permits program

Fees paid to Navajo because of fully delegated Part 71 programs

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FARR Delegation

Delegation provision in FARR (§ 49.122) allows tribes to establish agreement to administer one or more federal rules in effect on reservation

Proposed Preconstruction NSR Rules provides similar process at § 49.160(b)

Region 10 Delegation Agreements with Nez Perce Tribe and Confederated Umatilla Tribes for open burning permit programs; Quinault Tribe and Coeur d’Alene Tribe for general open burning, including calling “burn bans”

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FARR Delegation EPA must consult with

“Appropriate governmental entities” outside reservation

City and county governments within reservation

After delegation agreement executed, EPA publishes Notice in Federal Register Announcement in local newspapers, and Notes delegation in implementation plan

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INSPECTOR CREDENTIALS

Sec. 114(a)(2) of the CAA provides “the Administrator or

his authorized representative, upon presentation of his

credentials, shall have a right of entry to, upon, or

through any premises . . . and may at reasonable times

have access to and copy any records, inspect any

monitoring equipment . . . and sample any emissions

which such person is required to sample.”

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Conducting Inspections as an Authorized EPA Rep.

Ensures better coverage by trained inspectors and better enforcement by EPA

Allows quicker response to emergencies, especially in remote areas

Provides increased environmental protection Authorizes direct participation of tribe’s staff EPA must first determine that issuing inspector

credential is appropriate

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Funding Options

Sec. 103 of CAA Sec. 105 of CAA Indian General Assistance Program Direct Implementation Tribal Cooperative

Agreement Performance Partnership Grant

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Review of Authorities Available for Tribal Program Financial

Assistance Awards,Nov. 20, 2006

“The Beth Craig memo”

Provides summary of available funding sources to support CAA activities by tribes

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Sec. 103 of the CAA

Project-oriented grants Research investigations Surveys To set up tribal air quality program

Initial air quality assessments, emission inventories, training, and involvement with local, regional and national planning

Performance period approved for no longer than 5 years No match, but no guarantee of ongoing funds

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CAA Sec. 105 Grants

Focus on implementing tribal air program Without TAS, 40% cost share With TAS, 5% cost share first 2 years, then 10%,

unless EPA finds hardship After initial grant, no application or commitment of

funds may be denied without prior notice and opportunity for a hearing [Sec. 105(e)]

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Indian General Assistance Program Grants

Assess air quality, work with EPA and other partners, identify problems and options for addressing them

Conduct ambient and indoor air monitoring Develop an emissions inventory Build capacity

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Direct Implementation Tribal Cooperative Agreements

During FY2001, EPA authorized to award

Direct Implementation Tribal Cooperative

Agreements (DITCA) to Indian tribes and

eligible intertribal consortia

To assist EPA in implementing federal

environmental programs for Indian tribes in

absence of acceptable tribal program

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Reasons for DITCAs

Some tribes find TAS process cumbersome, risky EPA cannot use grant or cooperative agreement

mechanisms for funding tribe to help EPA directly implement federal program

DITCA provides tribes with opportunities to Develop capacity Address specific tribal environmental priorities

within EPA direct implementation authority Determine scope and pace of tribal involvement

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Limitations with DITCAs

No funds appropriated specifically for DITCAs. Funding available from either STAG or EPM

appropriations “Pick and stick” rule prohibits using two general

appropriations for same activity “Cooperative agreement”, not “grant,” so

substantial federal involvement can be part of each DITCA project

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Performance Partnership Grants

Final rule published 1/16/01 at 66 FR 3782 Consolidates several grants into one grant if

funding can be combined Offers option to receive funding under CAA

105 with reduced match, without going through TAS

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Contact Information

Rich McAllister

Office of Regional Counsel

US EPA Region 10

mcallister.rich@epa.gov

206-553-8203