Tribal Roles in Minor NSR by: Joy Wiecks, Fond du Lac Band Tribal Permit Training Fond du Lac Reservation June 12, 2013

What We Will Cover History and purpose General permitting information Tribal decision matrices Pro’s and con’s of decision choices What to consider in decision- making

Tribal NSR Overview Initiated in 1990’s, proposed in 2006, finalized on July 1, 2011 Tribal NSR closed a gap in permitting on Reservations Tribes now have input on how on- Reservation sources will be permitted Tribal New Source Review Implementation manual available from NTAA and EPA websites, May 2012

Permitting Gap Previously, only major sources in attainment areas could be permitted in Indian Country Minor sources – no mechanism for permitting Major sources in non-attainment areas – no mechanism for permitting No predictability for sources or tribes

TNSR, Continued TNSR clarifies the permitting process and tribal jurisdiction, and creates a mechanism for permitting Protects air quality Levels the playing field in terms of Predictability for econ. development Permit content Minor NSR regulates True minor sources Synthetic minor sources Minor modifications at Major sources Non-attainment major NSR gap also filled Ensure that any increases in emissions will not significantly impact AQ

Minor Source Permitting Information Major sources - emit more than 250 ton/year of any criteria pollutant (or more than 100 tpy in 28 specific source categories) Minor sources – emit 0.1-10 tpy of a criteria pollutant “True” minor’s potential emissions stay under major source thresholds at all times “Synthetic” minor sources need permit limits to do this Sources need to obtain pre-construction permits Permits may have requirements/limits for operating parameters Before source builds or expands Operating parameters: throughputs, operating conditions, hours of operation, reporting and recordkeeping, best practices, etc.

Tribal Involvement Decision Matrix Developed to help tribes understand options for implementing the Tribal NSR rule Three scenarios are presented that range from: Tribe wanting no, little, or limited participation Tribe wanting to start small and develop program over time Any combination or mixture of these steps are open to the tribe

Decision Matrix Assessment/Analysis Basic Options TIP/Tribal Rule Education & Outreach Assessment/Analysis Identify & Determine Goals/Priorities Basic Options EPA Implements Program Delegation TIP/Tribal Rule

Matrix Continued Delegation TIP/Rule Capacity Criteria Resources EPA Implementation/Tribal Participation Delegation TIP/Rule Capacity Criteria Resources Implementation Pros/Cons Roles & Responsibilities

Education & Outreach Identify resources to learn about: Final rule Implementation issues Better understand information to present to: Tribal leaders Community tribal audience Sources on the Reservation

Assessment Determine to what extent tribe wants to participate in implementation of the NSR rule Identify sources to have data to support your proposed plan of action Identify plans for future economic development Meet within the tribe and with EPA to discuss Identify questions for EPA to answer to help your tribe make an informed decision

Identify Priorities Determining priorities is important Number of sources on Reservation Resources Political direction of tribe Determine what tribe is willing to engage in or prepared to do today to implement TNSR And, to what extent in the future

Steps in Process Moving from lowest involvement or none at all, the following slides will show choices ranging from EPA implementation of TNSR to full tribal implementation Remember, a tribe may decide to jump in between steps due to capacity levels as they move towards developing a Tribal NSR rule implementation plan

Tribal NSR Decision Matrix EPA Implementation/Tribal Participation Delegation TIP/Rule Because the TNSR was done as a FIP… EPA is required to implement the program The tribe is not required to participate A tribe may chose… To do nothing Limited participation (i.e. outreach, conf. calls) Participate or begin building capacity and work with EPA Review permits Help with outreach to the community Burden on EPA

Pros and Cons of EPA Implementation Builds tribal capacity over time EPA lends credibility No TAS necessary Low to medium tribal resources needed Least likely to lead to challenges to tribal jurisdiction Pros/Cons More supportive of sovereignty than prior to rule No enforcement role for tribes Cons EPA resources may be limited Less control over progress/rule implementation Can be seen as infringement on sovereignty

Tribal NSR Decision Matrix EPA Implementation/Tribal Participation Delegation TIP/Rule Delegation is an established agreement to authorize the administration of one or more federal rules in a FIP with a tribe to assist in whole or partial administration of a specific Tribal NSR rule, with EPA retaining enforcement responsibility

Pros and Cons of Delegation Builds tribal capacity Credibility of implementing an EPA program Less complicated than developing TAS or TIP Tribal involvement may improve community acceptance of program May be most effective and efficient due to tribal knowledge Pros/Cons More supportive of sovereignty than prior to rule No enforcement for tribe Cons Some parties may challenge tribe’s participation Non-tribal constituents may have concerns Requires more resources and capacity than EPA implementation Less assertion of tribal sovereignty than a TIP This means that the tribes takes over implementing EPA’s program and EPA’s rules. The tribe is delegated authority to act in EPA’s place.

Delegation (continued) Requirements for delegation Show federal recognition Have governing body adequate to carry out the duties and powers over the area Identify Reservation boundaries Demonstrate tribe has or will have technical capacity TAS is not required for delegation Delegation can be requested for the entire FIP or it can be severable Roles and responsibilities Tribe can take on as much or as little as they wish Tribe may develop its own rules or codes to implement a program Capacity – tribes can work through delegation with EPA to build capacity by doing the work

Tribal NSR Decision Matrix EPA Implementation/Tribal Participation Delegation TIP/Rule A tribe can choose to develop a TIP to take on authority for ensuring that the NAAQS are met within its jurisdiction Developing a TIP gives the tribe the option of implementing and enforcing its own program Once a TIP is approved by EPA, the provisions of the implementation plan become federally enforceable in addition to being enforceable by the tribe TAS is required for a TIP

TIP/Tribal Rule Pros Tribally implemented program Tribal rules may be better fit than federal program Greatest exertion of Tribal sovereignty Tribal program may be more acceptable to a tribal population Pros/Cons Enforcement issues Cons May draw challenges to tribal authority or boundaries Non-tribal constituents may have concerns Resource intensive Demands lots of coordination with EPA Will need to coordinate enforcement with EPA, other jurisdictions.

Roles and Responsibilities Decision Matrix Areas to consider when deciding which route to pursue (if any) Example questions What type of capacity is needed for delegation? Criteria for delegation? Resources needed? How to implement a delegated program? Pros and cons for the tribe? What are the specific roles and responsibilities of the tribe/EPA in a delegated program? Capacity Delegation Criteria Resources How to Implement Pros/Cons Roles and Responsibilities

Conclusions Decision of what route to take is very individual depending on your tribe Need to make decision working with your tribal government If decide to pursue a more active role, talk with EPA to determine roles/schedule, etc.