Treatment as a State and Other Ways to Manage Air Quality in Indian Country Rich McAllister US EPA Region 10

1 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

2 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)

3 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

4 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;”

5 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.”

6 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 (2001).

7 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

8 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

9 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]

10 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

11 EPA’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

12 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)

13 TAS 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

14 Approved Tribal 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

15 TAS Considerations Once TIP is approved by EPA, tribe’s rules are federally enforceable Compliance with EPA-approved TIP means compliance with CAA

16 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

17 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

18 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

19 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

20 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)

21 FIPs that Have Been Issued Prevention of Significant Deterioration rules for Indian Reservations, 40 CFR (1978) Tri-Cities landfill, Salt River Pima-Maricopa Indian Community, 40 CFR (1999) Astaris-Idaho LLC Facility (formerly FMC Corporation) in Fort Hall PM 10 Nonattainment Area, 40 CFR (2000) Federal Air Rules for Reservations (FARR) in EPA Reg. 10, 40 CFR Part 49, subpart C and M (2005)

22 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 , 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

23 FARR FIPs at 40 CFR § General Outdoor Burning Rules Identifies materials that cannot be burned Authorizes burn bans to protect air quality Garbage burning is now the nation’s largest source of dioxin emissions.

24 FARR FIPs: Industrial Rules 40 CFR § Visible emission limits Particulate matter limits Fugitive emission limits Sulfur dioxide limits Sulfur in fuel limits industrial rules

25 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

26 FARR FIPs: Burn Permits Nez Perce and Umatilla Reservations: Agricultural, Forestry & Open Burning Permits Photo UC Davis Fire Department

27 FARR FIPs: Infrastructure Rules Delegation to Tribes § General provisions and definitions Air episodes & emergencies Registration of sources Non-Title V operating permits § Atmospheric haze and air pollution Photo Southern Alliance for Clean Energy

28 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

29 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

30 Proposed Preconstruction New Source Review Rules Nonattainment Area Major NSR Permits Sources with at PTE at least 100 tons/year (or lower for some pollutants) Requires Lowest Achievable Emission Rate technology (LAER) Emission offsets Minor NSR Sources above thresholds Synthetic minor sources

31 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

32 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

33 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

34 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

35 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.”

36 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

37 Potential Air Quality Non-Regulatory Roles Indoor air quality monitoring and other indoor work Woodstove change outs Outreach and education Solid waste management

38 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

39 Delegating EPA’s Title V Program Delegation rules for Part 71 program in 40 CFR §§ 71.4(j) and 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

40 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

41 FARR Delegation Delegation provision in FARR (§ ) allows tribes to establish agreement to administer one or more federal rules in effect on reservation Proposed Preconstruction NSR Rules provides similar process at § (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”

42 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

43 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.”

44 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

45 Funding Options Sec. 103 of CAA Sec. 105 of CAA Indian General Assistance Program Direct Implementation Tribal Cooperative Agreement Performance Partnership Grant

46 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

47 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

48 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)]

49 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

50 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

51 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

52 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

53 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

54 Contact Information Rich McAllister Office of Regional Counsel US EPA Region