1. Options for Tribes to Manage Air Quality in Indian Country Rich McAllister Hobbs, Straus, Dean & Walker 206-245-5985 Laura McKelvey EPA Office of Air Quality Planning and Standards 919-541-5497

2. 1 Overview Assessing the situation with EPA grants Using tribal inherent authority Federal environmental law alternatives CAA treatment in same manner as a state Federal Direct Implementation Delegation to administer federal programs DITCAs, EPA Inspector credentials, circuit riders Intergovernmental agreements

3. 2 How to fill the regulatory gap? Approve tribal programs Direct implementation by EPA Develop rules to fill regulatory gap Build capacity of tribes to assist EPA Develop cooperative approaches with tribes, states, locals

4. 3 Assessment Grants Indian General Assistance Program Section 106 of the Clean Water Act Sec. 104(b)(3) of the CWA Sec. 319 of the CWA (non-point source) Sec. 103 of the Clean Air Act Sec. 23 of FIFRA

5. 4 Program Financial Assistance Sec. 105 of CAA Pollution Prevention Act, Sec. 6605 Public Water System Supervision under Sec. 1443 and 1451 of the Safe Drinking Water Act Lead-Based Paint Program under Title IV of the Toxic Substances Control Act Tribal response program under Sec. 128 of the CERCLA

6. 5 Clean Air Act Options for Tribes TAS for grants and other roles to study and participate in air quality management. TAS for developing a Tribal Implementation Plans or other CAA program under tribal law Let EPA promulgate Federal Implementation Plans and work with EPA’s program Delegation agreement with EPA to administer the FIP and federal requirements

7. 6 Tribal Implementation Plans under the Clean Air Act After qualifying for TAS, tribe may develop air programs under tribal law for reservation and other areas within its jurisdiction Tribes not bound by CAA deadlines for submitting implementation plans Tribe may operate CAA program for one or a few requirements, or may chose to forego air quality work under CAA

8. 7 TIP Benefits Tribe with TAS plays more active role in managing tribal air resources by exercising tribal sovereignty TIP can be tailored to address particular concerns or broad as tribe chooses Efforts to establish CAA program can be viewed positively by community and business by providing stable regulatory environment

9. 8 EPA 1984 Indian Policy Until tribal governments are willing and able to assume full responsibility for delegable programs, Agency will retain responsibility for managing programs for reservations (unless state has expressed grant of jurisdiction from Congress sufficient to support delegation to the state government)

10. 9 EPA’s Direct Implementation Authority under the CAA in Indian Country Under EPA’s 1998 CAA TAS rule, EPA will protect air quality throughout Indian Country by directly implementing CAA's requirements under the authority of sec. 301(d)(4) where tribes have chosen not to develop or are not yet implementing a CAA program

11. 10 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)

12. 11 EPA Program Delegation EPA may delegate authority to tribe to help EPA administer a specific federal rule as authorized EPA representative Delegation allows tribe building a program to gain experience by assisting EPA with implementing federal rules while deciding whether to establish tribal programs through TAS or under tribal inherent authority Generally, EPA will have responsibility for enforcement of federal requirements

13. 12 EPA Delegation Rules Delegation provision in the FARR (40 CFR § 49.122) allows tribes to establish agreement to administer one or more federal rules in effect on reservation Minor NSR rule provides for delegations at 40 CFR 46.161 Major Nonattainment Rule provides for delegations at 40 CFR 49.173 Title V Rule provides for delegations at 40 CFR 71.10 Delegation not currently available to tribes for major NSR PSD (but under consideration)

14. 13 INSPECTOR CREDENTIALS Sec. 114(a)(2) of 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.”

15. 14 Conducting Inspections as an Authorized EPA Rep. Ensures better coverage by trained inspectors and a 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 an inspector credential is appropriate

16. 15 Guidance for Issuing EPA Inspector Credentials (9/30/04) Authorization Agreement describes appropriate oversight and controls to ensure inspections are conducted at EPA’s request or under an inspection plan Inspection reports are submitted to EPA Basic Inspector training; Health and Safety Training with annual refresher training; media-specific training Possible for “circuit riders” to cover multiple reservations Cross-boundary inspections as approved by EPA

17. 16 EPA/Tribal Authorization Agreement and Yearly Work Plan Document inspector training Conditions/limits on use of credentials When inspections may be conducted Where inspections may be conducted Credential security measures, including reporting of lost credentials Submit inspection reports for all inspections conducted with EPA credentials

18. 17 Direct Implementation Tribal Cooperative Agreements During FY2001, EPA first authorized to award Direct Implementation Tribal Cooperative Agreements (DITCA) to Indian tribes and eligible intertribal consortia DITCAs authorize tribes to assist EPA in implementing federal environmental programs for Indian tribes in absence of acceptable tribal program, unlike grants

19. 18 Direct Implementation Tribal Cooperative Agreements Permits EPA to to fund tribe to help EPA conduct federal direct implementation DITCAs provide tribes with opportunities to develop capacity and have direct involvement in EPA implementation No funds appropriated specifically for DITCAs. Funding available from either STAG or EPM appropriations (can’t mix)

20. 19 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 through delegation agreement 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 Work closely with EPA staff

21. 20 Potential Air Quality Non-Regulatory Roles Indoor AQ monitoring and other indoor work Woodstove change-outs Outreach and education Solid waste management

22. 21 Intergovernmental Agreements EPA’S 1984 INDIAN POLICY 6. The agency will encourage cooperation between tribal, state, and local governments to resolve environmental problems of mutual concern

23. 22 WHAT KINDS OF AGREEMENTS? Agreement for Issuing Field Burning Permits Tribal/fire dept. agreement on responding to open burning complaints and issuing burn permits Other examples?

24. 23 QUESTIONS?