1. Tribal Authority Rule (TAR) Overview
Pat Childers, U.S. EPA

2. TAR Development CAA Implementation Authority [Section 301(d)]
1990 CAA Amendments
Tribal air management authority
TAS
Tar is on tribal website

3. TAR Development (cont.)
EPA proposed implementation in 1994
Eligibility requirements
Application procedures
Provisions for “treating tribes like states”
Rule proposed Aug. 1994
Rule promulgated Feb. 1998

4. Framework for Tribal Implementation of CAA
Jurisdiction
Sovereign immunity
Modular approach
Grant match requirement
Federal implementation
Eligibility requirements

5. Tribal Jurisdiction Within exterior boundaries of reservation
Other areas where tribes can demonstrate jurisdiction
Emphasis clean air act was first environmental regulation that clearly defined where tribes have jurisdiction.

6. Sovereign Immunity 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

7. Modular Approach Ensures flexibility Tribes and EPA develop approaches
Elements to be
Reasonably severable
Consistent with legal requirements

8. Grant Match Requirements
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 tribe’s ability to increase its share
40% without TAS
Waivers available for hardship (rare)
EPA will review program over time

9. Federal Implementation
Trust responsibility
Federal Implementation Plan (FIP) required
Where necessary or appropriate provisions
Without unreasonable delay
Tribal new source review, region 10 far, ngs are examples of fip

10. Eligibility Requirements
Federally recognized tribe
Governing body with substantial governing duties and powers
Statement of tribe’s authority
Capability to carry out program
TAS is separate step from having approval of regulatory program.

11. TAR Litigation History
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

12. Litigation Issues Judicial review Direct administration
Public participation in TAS process
Reservation size
Jurisdiction
Oklahoma-specific issues

13. DC Circuit Court Opinion
Upheld EPA’s interpretation on every issue
One judge dissented on extent of delegation provided by Congress

14. Appeal to Supreme Court
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

15. TAS TAS is eligibility 40 CFR 49.9 details EPA review
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)
40 CFR 49.9 details EPA review
Within 30 days of completeness finding
Notice/comment to appropriate governmental entities
(g) if EPA RA determines tribe meets requirements of 49.6 for purposes of a CAA provision, Indian tribe eligible to be treated in same manner as a state with respect to that provision
Other regulatory programs other than tip, delegation or approvals may or may not require tas(delegations)

16. TIP Tribal Implementation Plan Implements TAS programs
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

17. TIP (cont.) 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
Southern Ute has approval for Part 70
Minor NSR permitting at St. Regis Mohawk
Gila river has approved Tribal Implmentioant plan.

18. Any questions?