1. TRIBAL DECISION ON IMPLEMENTATION TAS/DELEGATION/TIP TIP/TAS Training December 3, 2012

2. 2  Trust responsibility  Federal Implementation Plan (FIP) required  With necessary and appropriate provisions  Without unreasonable delay  Fundamentally tribes don’t have to implement the CAA the Regions will implement where the tribes don’t Federal Implementation

3. 3  Ensures flexibility  Tribes and EPA develop approaches  Elements to be  Reasonably severable  Consistent with legal requirements TAR review - Modular Approach

4. 4 Tribal Decision Matrix  Matrix developed to prompt and explore options for tribes considering taking on implementation of CAA  The following scenarios are explained in decision- matrix process with assumption that  Tribe may want to start with no, little, or limited participation  Tribe may want to start small and develop programs over time, understanding that any combination or mixture of these steps are for tribes 4

5. 5 Decision Matrix 5

6. 6 Assessment  Using “assessment” in general context, tribe will need basic information in order to determine extent they want to participate in implementation of CAA  Determine area of concern  What type of pollutant?  Are there issues that community members have brought to your attention? 6

7. 7 Assessment (cont.)  Determine what level of assessment is appropriate for your area,  Example: windshield surveys, emissions inventories  Identify sources out there, so when presenting to council you have data to support proposed plan of action  Identify plans for future economic development (potential sources on the way) 7

8. 8 Identify/Determine Priorities  Identification of priorities is important  Number of sources on reservation  Resources  Political direction of the tribe  Sovereignty protection  Economic development  Environmental protection  Determine what the tribe is willing to engage in or prepared to do today to implement CAA  And, to what extent in the future 8

9. 9 Basic Option Selection  Develop possible options through meetings within tribe and with EPA using available information  Identify questions to ask EPA to make more informed decisions or to help your tribal government make more informed decision 9

10. 10 Steps in Process  Next slides will move from lowest involvement or none at all, to EPA implementation, to TIP development  Keep in mind: tribe may determine to jump in between steps due to capacity and predetermined work as move toward developing a plan 10

11. Tribal Decision Matrix EPA Implementation/ Tribal Participation Delegation TIP/Rule  NAAQS through a Federal Implementation Plan (FIP)  EPA required to implement program  Tribe not required to participate  Tribe may decide  To do nothing  Limit participation (i.e., outreach, conference calls)  Participate or begin building capacity and work with EPA  Review permits  Help with outreach to community TAS

12. 12 EPA Implementation 12  Cons  No fee mechanism – built in  Implementing other rules  Less control over progress/rule implementation  Can be seen as infringement on sovereignty Pros/Cons  More supportive of sovereignty than if they had their own rules (Ask Rio for comment on delegation)

13. 13 EPA Implementation (cont.)  Pros  Builds capacity  Credibility  No TAS necessary  Medium resources – administratively  Control – more than other options  No enforcement for tribe (no responsibility to track sources) 13

14. Tribal Decision Matrix EPA Implementation/ Tribal Participation Delegation TIP/Rule  Established agreement to authorize administration of one or more federal rules in FIP with tribe, to assist in whole or partial administration of specific part of interest to tribe  EPA retains enforcement responsibility  EPA will need FIP in place for this option TAS

15. 15 Delegation  Cons  No fee mechanism – built in  Implementing other rules  Pros/Cons  More supportive of sovereignty than if they had their own rules  Can be seen as infringement on sovereignty  No enforcement for Tribe 15

16. 16 Delegation (cont.)  Pros  Capacity  Credibility  No TAS necessary  Medium resources – administratively  Control – more than other options 16

17. 17 Delegation (cont.)  Requirements for delegation  Must show federal recognition  Have governing structure to carry out duties and powers over defined area  Identification of boundaries covered by delegation  Provide adequate authority to carry out the aspects of provisions  Demonstrate tribe has or will have technical capacity For tribe to take delegation, TAS is not required 17

18. 18 Delegation (cont.) 18  Delegation can be requested for entire FIP or it can be severable  Roles and responsibilities: tribes can take on as much as they want or limit amount of responsibility under delegation  Tribe may determine under inherent authority to develop tribal rules or codes to implement program  Capacity: tribes can work through delegation with EPA to build capacity through delegation work

19. 19 Steps in Requesting Delegation General Process for Delegation 1. Tribe expresses interest to EPA about receiving delegation for certain provisions of the CAA 2. Tribal staff -to- EPA staff phone call is appropriate first step 3. Tribe and EPA continue ongoing discussions during development of delegation request.  EPA will review draft request as appropriate 4. Tribe formally requests delegation by way of letter to EPA Regional Administrator from Tribal Chairperson that includes all information required by delegation rule 5. EPA formally responds to tribe and acknowledges receipt of request for delegation 6. EPA sends a letter to all appropriate governmental entities 19

20. 20 Steps in Requesting Delegation (cont.) General Process for Delegation 7. EPA can provide tribe with draft delegation agreement modeled after existing delegation agreements 8. Tribe and EPA review comments by tribe on draft delegation agreement and agree on language for delegation agreement 9. Tribe and EPA consult on government-to-government basis at tribe’s request 10. After delegation agreement is signed, EPA publishes notice of delegation in Federal Register 11. When notice of delegation agreement is to be published in Federal Register, EPA publishes announcement of delegation agreement in local newspapers 20

21. Tribal Decision Matrix  Signals tribe’s intention to develop an ongoing program  Establishes authority to be treated as a state for key issues like reviewing permits, designations, transport  Can help level playing field with states EPA Implementation/ Tribal Participation Delegation TIP/Rule TAS

22. 22 TAS Cons  Need identify boundaries to be covered Pros/Cons  EPA will retain enforcement Pros  Establishes the tribes intention to run a program  Provides support for tribal participation in state activities  Exertion of tribal sovereignty – “higher” 22

23. 23 Treatment as a State (TAS)  Tribes need TAS to implement CAA via TIP and may get TAS for delegation  Can obtain TAS for many elements of CAA  Requirements for TAS 23

24. 24 TAS Timeline  EPA’s process for reviewing a federally-recognized tribe’s eligibility application for TAS in order to administer a regulatory program under CAA. Four steps: Step 1: Tribe submits application  Pre-application discussions and technical assistance (between tribe and EPA)  EPA review of pre-application materials (if requested)  Tribe submits application to EPA  EPA notifies tribe of receipt of application and, as needed, requests additional information from tribe, within 30 days of receipt of application  Tribe submits additional information (if applicable) 24

25. 25 TAS Timeline (cont.) 25 Step 2: EPA review  EPA reviews application and determines if it is complete  EPA notifies all appropriate governmental entities of the application and how it identifies reservation boundaries, and of any assertions regarding tribal authority over non-reservation areas, within 30 days of receipt of initial, complete application  EPA notifies tribe, in writing, that application is complete no later than when EPA provides notification in step 1

26. 26 TAS Timeline (cont.) Step 3: Comment period (if needed)  Appropriate governmental entities and public can comment regarding reservation boundaries or tribal authority over non-reservation areas; comments generally due within 30 days  EPA provides comments to tribe within 30 days of close of comment period  Tribe reviews comments and may respond  If authority dispute arises that EPA cannot promptly resolve, it may approve portion of application addressing undisputed areas. See 40 CFR 49.9(e ) 26

27. 27 TAS Timeline (cont.) 27 Step 4: Final TAS eligibility decision  EPA prepares decision document and response to comments  EPA regional official signs decision document  EPA notifies tribe of decision within 30 days of signature

28. Tribal Decision Matrix  Tribe can choose to develop TIP to assume primacy for ensuring that NAAQS are met within its jurisdiction  Developing TIP gives tribe option of implementing & enforcing its own program  Once TIP is approved, provisions of implementation plan become federally enforceable in addition to being enforceable by tribe  TAS is required for TIP EPA Implementation/ Tribal Participation Delegation TIP/Rule TAS

29. 29 Tribal Implementation Plan/Tribal Rule Cons  TIP is more involved (TAS, boundary, code writing)  Enforcement collaboration with other jurisdictions (MOU/MOA)  Role – resource intensive “High”  Processing – intensive coordination with EPA Pros/Cons  Enforcement issues 29

30. 30 TIP/Tribal Rule (cont.) Pros  Tribally implemented program  Tribal rules  Exertion of tribal sovereignty – “highest”  Fees can be built in  Most control over sources 30

31. 31 Tribal Implementation Plan (TIP)  As part of decision process, tribe may determine to develop/implement a TIP  Tribe may request ALL or some elements of CAA Title I to develop TIP  TIP may include selected elements of complete NAAQS implementation plan, provided elements are reasonably severable from other CAA elements not included in TIP  Potential elements of a TIP are Maintenance strategies Attainment strategies Source preconstruction permits (NSR) Regional haze plans 31

32. 32 TIP Requirements  Request for determination of eligibility  TAR requires EPA to determine that tribe is eligible to implement CAA programs (TAS) before approval Tribe must demonstrate federal recognition Have governing body carrying out substantial government duties and powers Provide evidence that tribe will perform functions pertaining to management and protection of air resources within exterior boundaries of its reservation or other areas within tribe’s jurisdiction Demonstrate tribe’s capability to administer effectively the program for which it is seeking approval 32

33. 33 TIP Requirements (cont.)  Administrative elements  Letter of submission from tribal leader requesting EPA approval of TIP elements  Documentation that tribe has  Adopted plan into law  Sufficient authority in tribal law to adopt and enforce TIP  Adoption date  Effective date of plan  Evidence that tribal environmental agency has sufficient personnel and resources to develop, implement, and enforce proposed TIP elements 33

34. 34 TIP Requirements (cont.) 34  Evidence that public was notified in accordance to EPA requirements; certification that public hearings were held; compilation of public comments and tribe’s response Public needs at least 30 days to review TIP and submit comments to tribe Public hearings should be advertised at least 30 days in advance (preferably 60 days)  Technical information used to prepare TIP

35. 35 TIP Requirements (cont.)  Demonstration of enforcement authority  Enforcement program should include Resolutions and laws passed by tribal government to establish authority to do inspections and enforce laws Requirements for emission sources to monitor emissions and periodically report to tribe emissions data and other information needed to determine compliance Procedures for inspecting sources to verify emission limits are met, issuing notice of violations, and assessing fines  Limitations on tribe’s criminal enforcement authority will not prevent TIP approval Generally covered by MOU between tribe and EPA 35

36. Capacity Criteria Resources Implementation Pros/Cons Roles & Responsibilities Areas/Questions to consider when taking initial action or moving between basic options in decision matrix Example Questions  What capacity is necessary to take on delegation  What are criteria for delegation  What resources are needed  How implement a delegated program  What are pros/cons for tribe  What are specific roles and responsibilities of tribe and/or EPA in delegated program 33 Decision Matrix (Basic Options)