1. Distinguishing: Clean Air Act, EPA Rules, Regulations and Guidance David Cole U.S. EPA, OAQPS Research Triangle Park, NC

2. 2 Introduction - A federal perspective Distinguish between –Clean Air Act –Rules and Regulations –Guidance –Sovereignty –Tribal Authority Rule (TAR) –Treatment as States (TAS)

3. 3 Clean Air Act, as Amended Originally –Act July 14, 1955 –1963 Public Law 88-206, Dec. 17 1963 77 Stat. 392 –1965 Emissions Standards Act –Air Quality Act of 1967 –Clean Air Amendments of 1970 “This Act may be cited as the “Clean Air Act” (Dec. 31, 1970, 84 Stat. 1705) –Clean Air Act Amendments of 1977 –Steel Industry Compliance Extension Act of 1981 –Clean Air Act Amendments of 1990 –Border Smog Reduction Act of 1998 –Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (1999)

4. 4 Titles of the Clean Air Act Title I—Programs and Activities Title II—Mobile Sources Title III— Emergency Powers and Tribal Authority, Public Involvement Title IV—Acid Deposition Title V—Operating Permits Title VI—Stratospheric Ozone

5. 5 Titles of the Clean Air Act Title I—Programs and Activities –e.g., SIP, NAAQS, attainment/nonattainment, NSR, technology standards

6. 6 Congressional Intent Title I Congressional Intent CAA 101(b) Protect national air resources to promote public health and welfare Conduct R&D to control air pollution Provide technical and financial assistance Assist development and operation of regional programs

7. 7 Cooperative Activities Title I Cooperative Activities CAA 102 Encourage cooperative activities by state and local governments Encourage cooperative activities by all federal agencies Empower states to negotiate and enter into agreements

8. 8 Grants Title I Grants CAA 103 – R&D, Training CAA 105 – Planning and Programs

9. 9 Federal Laws Congressional authorization for: –STATES Required to adopt or develop rules and regulations to implement CAA requirements –TRIBES Authority to implement severable elements of CAA Authority first recognized in 1977 PSD amendments 1990 amendments authorized tribal programs

10. 10 Federal Laws (cont.) Congressional authorization for ― EPA Develop federal rules and regulations Oversight role to ensure proper implementation of CAA requirements and “level playing field” Fund eligible programs and activities

11. 11 Rules and Regulations EPA (federal) –Develop proposed rule, solicit public comment –Rule becomes regulation upon promulgation –Regulation implements Congressional instructions –CAA 301(d) is implemented in Tribal Authority Rule (1998)

12. 12 Rules and Regulations (cont.) States –Required to develop or adopt regulations Often based on federal regulations Also based on guidance

13. 13 Rules and Regulations (cont.) Tribes –Eligible, but not required to participate through TAR –Have similar authority to states as sovereigns

14. 14 Sovereignty Authority over an area Power to govern

15. 15 Titles of the Clean Air Act Title III— Emergency Powers and Tribal Authority, Public Involvement

16. 16 TAR Development Title III TAR Development CAA Implementation Authority Section 301(d) –1990 CAA Amendments –Tribal air management authority

17. 17 TAR Development (cont.) Title III TAR Development (cont.) EPA proposed implementation in 1994 –Eligibility requirements –Application procedures –Provisions for “treating tribes as states” Rule proposed August 25, 1994 Rule promulgated February 12,1998

18. 18 Framework for Tribal Implementation of CAA Jurisdiction Sovereign immunity Modular approach Grant match requirement Federal implementation Eligibility requirements

19. 19 Tribal Jurisdiction Within exterior boundaries of reservation Other areas where tribes can demonstrate jurisdiction

20. 20 Modular Approach Ensures flexibility Tribes and EPA develop approaches Elements to be –Reasonably severable –Consistent with legal requirements

21. 21 Grant Match Requirements Grants under Sec. 103 & 105 Sec. 103 requires no match Sec. 105 EPA will review program over time

22. 22 Federal Implementation Trust responsibility Federal Implementation Plan (FIP) required

23. 23 TAS Eligibility Requirements Federally recognized tribe Governing body with substantial governing duties and powers Statement of the tribe’s authority to regulate air quality Capability to carry out program

24. 24 TAR Litigation History DC Circuit Court of Appeals Petitions for review filed by various groups

25. 25 Litigation Issues Judicial review Direct administration Public participation in TAS process Reservation size Jurisdiction

26. 26 DC Circuit Court Opinion Upheld EPA’s interpretation on every issue One judge dissented on extent of delegation provided by Congress

27. 27 Appeal to Supreme Court Issues in petition –Definition of “reservation” –Congressional delegation of authority Supreme Court denied cert (review) DC Circuit Court opinion upheld

28. 28 Treatment as a State (TAS) Authorized in TAR –Four eligibility requirements –Two parts for air program –Process used to determine tribe’s eligibility to receive delegation of authority

29. 29 Administrative TAS Part 1 of TAS process Eligibility for CAA elements

30. 30 Programmatic TAS Part 2 of TAS process –May or may not require prior eligibility –Used for implementation of a program –49.9(h) –Eligibility and Implementation Typically done through a TIP

31. 31 TAS Review 40 CFR 49.9 details EPA review –Completeness finding – within 30 days –Notice and comment to appropriate governmental entities on jurisdiction –IG’s Office reviewed program

32. 32 TAS Review Process Tribe submits application for each section of law EPA Region determines completeness EPA offers state opportunity to comment EPA Headquarters review possible Final decision by Regional Administrator

33. 33 TAS Funding TAS is not an assurance of ongoing funding Applications may not be disapproved, existing awards may not be terminated without prior notice and opportunity for public hearing Lack of funding is not disapproval or termination

34. 34 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

35. 35 FY14 EPA Budget Cycle Budget process is long and complicated!

36. 36 FY14 Budget for Tribal AQM

37. 37 Summary CAA intent CAA and Federal Laws Rules and Regulations Guidance Sovereignty TAR and TAS Federal Budget

38. 38 Questions?