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Published byMekhi Barner Modified over 10 years ago
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Laura McKelvey, U.S. EPA
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2 CAA Implementation Authority [Section 301(d)] ◦ 1990 CAA Amendments ◦ Tribal air management authority ◦ TAS / TIP
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3 EPA proposed implementation in 1994 ◦ Eligibility requirements ◦ Application procedures ◦ Provisions for “treating tribes like states” Rule proposed Aug. 25, 1994 Rule promulgated February 12, 1998
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4 Jurisdiction Sovereign immunity Modular approach Grant match requirement Federal implementation Eligibility requirements
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5 Within exterior boundaries of reservation Other areas where tribes can demonstrate jurisdiction
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6 Treating tribes in a manner similar to states ◦ Tribes objected ◦ Sovereign immunity waived only voluntarily or by Congressional statute Final TAR addresses issue directly ◦ Withdraws proposal on section 304 ◦ Allows alternative to judicial review
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7 Ensures flexibility Tribes and EPA develop approaches Elements to be ◦ Reasonably severable ◦ Consistent with legal requirements
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8 Grants under Sec. 103 & 105 Sec. 103 requires no match Sec. 105 ◦ 5%, then 10% after 2 years with TAS with EPA RA demonstration of tribes’ ability to increase it’s share ◦ 40% without TAS ◦ Waivers available for hardship (rare) EPA will review program over time
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9 Trust responsibility Federal Implementation Plan (FIP) required ◦ With necessary and appropriate provisions ◦ Without unreasonable delay
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10 Federally recognized tribe Governing body with substantial governing duties and powers Statement of tribe’s authority to regulate air quality Capability to carry out program
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11 DC Circuit Court of Appeals Petitions for review filed by ◦ State of Oklahoma ◦ AZ Public Service Company ◦ National Assoc. of Manufacturers et al. ◦ Salt River Project et al. ◦ Oklahoma Gas and Electric Co. ◦ National Mining Association
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12 Judicial review Direct administration Public participation in TAS process Reservation size Jurisdiction Oklahoma-specific issues
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13 Upheld EPA’s interpretation on every issue One judge dissented on extent of delegation provided by Congress
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14 Issues in petition ◦ Definition of “reservation” ◦ Congressional delegation of authority Supreme Court denied certiorari (review) ◦ (re-hearing possible but not likely) DC Circuit Court opinion upheld
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15 ◦ TAS is eligibility (we used to call it an eligibility determination) Implementation another matter Administrative programs – nothing to implement (CAA 105), does not require separate program No obligation Part of unique 2-step process (TAS/TIP)
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16 ◦ 40 CFR 49.9 details EPA review Within 30 days of completeness finding Notice/comment to appropriate governmental entities (g) if the EPA RA determines that a tribe meets the requirements of 49.6 for the purposes of a Clean Air Act provision, the Indian tribe is eligible to be treated in the same manner as a state with respect to that provision.
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17 Tribal Implementation Plan ◦ Paralleled by SIP and FIP Implements TAS programs ◦ Tribe must submit demonstration of capability to implement Can be combined with or separate from TAS application
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18 ◦ Does create an obligation (h) …a tribal application containing a CAA program submittal will be reviewed by EPA in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal. Tribes have been approved for CAA §106, 107, 110 Administrative delegations of § 105, 505(a)(2) Navajo Nation has delegation of Part 71 Minor NSR permitting at St. Regis Mohawk
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