1. Managing Air Quality in Indian Country with TIPs, SIPs and FIPs Rich McAllister Hobbs, Straus, Dean & Walker 206-245-5985

2. 1 Overview Tribal inherent authority “Treatment in same manner as State” or “TAS” Federal implementation Delegation

3. 2 Implementation Plan Section 110 requires each State to develop for EPA approval measures necessary to attain or maintain National Ambient Air Quality Standards, Several sections of Title I have structured, mandatory requirements for SIPs In Indian country, state laws generally not applicable for compliance with federal laws such as the CAA, so SIP requirements not enforceable

4. 3 SIPS and Implementation Plans Affect Indian Country Tribes have interests in SIPs, may participate in state SIP development process Upwind or airshed sources outside reservation regulated by state Sources affecting areas where tribes have treaty-protected fishing, hunting, and gathering rights Title V permits for major sources must include all “applicable” requirements—may be in SIP, FIP or TIP

5. 4 Implementation Plan EPA responsible for managing programs in Indian country until tribe is approved Section 110(o): After TIP is approved, tribal law applicable to any source within reservation Includes sources on patented, fee land

6. 5 Tribal Implementation Plans under the TAR Tribe with TAS for a TIP may develop air programs under tribal law, for approval by EPA as a TIP Tribes not bound by CAA deadlines for submitting implementation plans Tribes may Operate CAA programs using modular approach Choose not to undertake AQ work under CAA No need for full criminal authority

7. 6 Implementation Plans under the Clean Air Act Specific & area-wide air quality monitoring Source registration & emissions inventory Maintenance strategy or Attainment strategy Open-burning permits Source preconstruction or operating permits Legally enforceable requirements for measuring and reporting facility emissions Procedures for tribal administrative and court enforcement to ensure compliance Public participation

8. 7 EPA’s Direct Implementation Authority under the CAA in Indian Country TAR preamble: EPA 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

9. 8 Clean Air Act Options for Tribes TAS for grants and other roles to study and participate in AQ management TAS for developing TIP 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 FIP and federal requirements

10. 9 Tribes can choose to regulate under Tribal Inherent Authority Indian tribes were independent, self- governing societies long before contact with European nations U.S. recognizes tribes as “distinct, independent political communities” qualified to exercise powers of self- government by reason of their original tribal sovereignty

11. 10 Reserved Rights Doctrine “In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” U.S. v. Wheeler (1978)

12. 11 The Jurisdiction of Tribes Authority to protect tribal self-government and to control internal relations, with sovereign immunity Limited inherent authority to regulate nonmember conduct Subject to Congress (may be unilateral) Authority over nonmembers as granted or delegated by Congress

13. 12 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 within reservation does not reach beyond what is necessary to protect tribal self-government or to control internal relations

14. 13 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.”

15. 14 Enforcement of Tribal Requirements Key issue: Does tribe wish to establish civil requirements under tribal law enforced against both members and nonmembers in tribal court? Requires both tribal regulatory and adjudicatory jurisdiction

16. 15 Compliance with tribal or state law does not relieve compliance with federal requirements unless explicitly approved by EPA under federal law

17. 16 Treatment As a State Congress gave EPA authority to treat tribes in same manner that a specific law treats states Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and 1990 Clean Air Act Amendments (CAA)

18. 17 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 Section 110(o): After a TIP is approved by EPA, tribal law applicable to any source within reservation Outside reservation boundaries, application must demonstrate tribe’s inherent authority

19. 18 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 the DC Circuit in Arizona Public Service Co. v. EPA 211 F.3d 1280 (D.C. Cir. 2000), cert. denied 121 S. Ct. 1600 (2001)

20. 19 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

21. 20 How to Show Authority for TAS For applications covering areas within a reservation, tribe must identify, with clarity and precision, the reservation exterior boundaries [see Sec. 110(o)] “Reservation” includes lands held in trust for a tribe (tribal trust), including pueblos

22. 21 TAS for a TIP EPA makes separate TAS decision for each section of CAA Initial TAS approval of a tribe as eligible to administer a tribal regulatory requirement in a TIP is a separate EPA decision from approval of TIP When developing TIP, tribe must provide for public participation by nonmembers, which must be documented in its application to EPA for approval of a TIP

23. 22 TAS and TIP Considerations EPA will offer the state opportunity to comment on reservation boundaries & publish newspaper notices of comment opportunity on TAS application After receiving a TIP, EPA will publish proposed approval in the Federal Register for comment, and then publish final approval Once TIP is approved by EPA, tribe’s laws and rules are federally enforceable

24. 23 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 written strategy, with Time frames for review process Greater transparency

25. 24 EPA TAS Strategy Jan. 23, 2008 Focuses on promoting efficiency, timeliness, and transparency of EPA reviews, without changing substantive requirements Establishes expectations to expedite reviews of TAS applications for regulatory programs

26. 25 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

27. 26 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)

28. 27 FIPs that Have Been Issued Prevention of Significant Deterioration rules for Indian Reservations, 40 CFR 52.21 (1978) Tri-Cities landfill, Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (1999) Federal Air Rules for Reservations (FARR) in EPA Reg. 10, 40 CFR Part 49, subpart C and M (2005)

29. 28 The New One: Preconstruction New Source Review Rules Requires permits before construction of Major Sources of pollution or major modifications at existing sources that will be located in Nonattainment Areas within Indian country Preconstruction permits for Minor sources throughout Indian country Sources above thresholds, like gas stations, dry cleaners, gas wells “Synthetic minor” permits available Registration of existing sources Note that NSR for new Major sources or major modifications of existing sources in Attainment areas was already available under a previous FIP

30. 29 New Source Review of Major Sources in Nonattainment Areas Nonattainment major NSR rule now extends requirement for preconstruction permitting to major sources located in areas of Indian country not attaining NAAQS Major sources already must obtain operating permits under Title V, which regulate emissions after they are built and running Now large facilities built in NAAs must include pollution controls that meet Lowest Achievable Emission Rate (LAER)

31. 30 Minor New Source Review “Synthetic Minor” Source with potential to emit pollutants in amounts at or above thresholds for major sources can voluntarily accept emissions limitations so potential to emit is less than these thresholds “Synthetic minor” source can avoid burdens of major source NSR or Title V permitting (it depends) Implementation date requiring applying for a permit for new “synthetic minor” sources is 60 days after the rule’s effective date (unless...) see 49(c)(1)(ii)

32. 31 A Big One that is Not a FIP: Title V Permits for Major Stationary Sources, 40 CFR Part 71 Title V requires operating permits for major stationary sources EPA authorized to delegate permitting authority to state or tribe under 40 CFR 71.10

33. 32 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 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

34. 33 Region 10 FARR Federal Air Rules for Reservations (FARR), published April 8, 2005 Basic federally-enforceable FIPs for 39 Indian reservations in ID, OR, & WA to protect human health and environment Proposed rule March 15, 2002; final rule 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

35. 34 EPA Program Delegation Delegates authority to tribe to help EPA administer specific federal air rule EPA retains responsibility for enforcement Delegation allows tribe to gain experience by assisting with implementation of federal rules while deciding whether to establish tribal air program under CAA or tribal law

36. 35 FARR Delegation Delegation provision in FARR (§ 49.122) allows tribes to establish agreement to administer one or more federal rules in effect on reservation EPA notifies “appropriate governmental entities” and local governments on reservation 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, includes calling “burn bans”

37. 36 NSR Rules Delegations Minor NSR rule at 40 CFR 46.161 describes information required in Administrative Delegation Request, terms to be included in Delegation of Partial Administrative Authority Agreement, and public notice requirements Major Nonattainment Rule at 40 CFR 49.173 describes information for a delegation request for major sources PSD Rules not yet available for delegation to tribes

38. 37 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.”

39. 38 Contact Information Rich McAllister, Of Counsel Hobbs, Straus, Dean & Walker rich@richmcallisterlaw.com 206-245-5985