1. TAS and TIP Swinomish Tribe and the Incremental Approach

2. Questions and Vision What Does the Tribal Leadership want in the long run? What Does the Tribal Leadership want in the long run? What does air program staff have the capacity to take on (in short – medium time frame)? What does air program staff have the capacity to take on (in short – medium time frame)? What will Tribe gain at what cost? What will Tribe gain at what cost?

3. Inherent Authority Tribes have all the powers of a sovereign except those withdrawn by Treaty or Congress (or Court interpretation). Tribes have all the powers of a sovereign except those withdrawn by Treaty or Congress (or Court interpretation). Authority to regulate trust land and members under tribal law is clear. Authority to regulate trust land and members under tribal law is clear. Authority of non-Indians on fee lands narrowed by Supreme Court over last 25 years. Montana v. US, 450 US 544 (1981) and progeny. Authority of non-Indians on fee lands narrowed by Supreme Court over last 25 years. Montana v. US, 450 US 544 (1981) and progeny.

4. Treatment as a State (TAS) Regulatory authority, including over non- Indians on Reservation, may be delegated to Tribes under the Clean Air Act. Regulatory authority, including over non- Indians on Reservation, may be delegated to Tribes under the Clean Air Act. Treat Tribe the same as a State for purposes of the Clean Air Act. Treat Tribe the same as a State for purposes of the Clean Air Act. Tribe may take authority for all delegable portion of the Act or for certain sections. Tribe may take authority for all delegable portion of the Act or for certain sections.

5. Clean Air Act Delegation Clear Congressional authority to delegate to Tribes regulation over all sources within the exterior boundaries of the Reservation. Clear Congressional authority to delegate to Tribes regulation over all sources within the exterior boundaries of the Reservation. Only EPA or the Tribe may regulate air quality on Reservation. Arizona Public Service Company v. EPA. (2000). Only EPA or the Tribe may regulate air quality on Reservation. Arizona Public Service Company v. EPA. (2000). Delegable Programs include: Open Burning, Title V, Effected State, and soon, Minor NSR. Delegable Programs include: Open Burning, Title V, Effected State, and soon, Minor NSR.

6. Swinomish Vision and Approach Long-term interest in taking delegation of entire CAA for sovereignty, health and environmental protection. Long-term interest in taking delegation of entire CAA for sovereignty, health and environmental protection. Proceed Incrementally – small bites we can swallow. Proceed Incrementally – small bites we can swallow. Already had burn permit program under Tribal ordinance with reasonable compliance. Already had burn permit program under Tribal ordinance with reasonable compliance. TAS would give federal hammer for few non-tribal who resist regulation. TAS would give federal hammer for few non-tribal who resist regulation.

7. Swinomish Air Quality Program Over 10 years of gaseous criteria pollutant monitoring. Over 10 years of gaseous criteria pollutant monitoring. Due to major adjacent Title V sources and new Ozone and NOx Standards data shows Non-Attainment now for ozone and trend in NOx. Due to major adjacent Title V sources and new Ozone and NOx Standards data shows Non-Attainment now for ozone and trend in NOx. Struggling to maintain monitoring funding. Struggling to maintain monitoring funding. IAQ program and completed woodstove change-out. IAQ program and completed woodstove change-out. On-going Burn permits under Tribal ordinance. On-going Burn permits under Tribal ordinance.

8. Examples to Draw From Current Tribal Air Code Current Tribal Air Code Federal Rules for Reservations (FARR) in NW States – Open Burning Rules (meet or exceed). Federal Rules for Reservations (FARR) in NW States – Open Burning Rules (meet or exceed). Surrounding jurisdictions (similar makes it easier to get non-tribal compliance). Surrounding jurisdictions (similar makes it easier to get non-tribal compliance).

9. Federal Air Rules for Reservations in WA, OR and ID (FARR) EPA has adopted FARR to implement the Clean Air Act on Reservations in the Northwest and “level the playing field.” EPA has adopted FARR to implement the Clean Air Act on Reservations in the Northwest and “level the playing field.” Open Burning – prohibited materials, burn bans. Open Burning – prohibited materials, burn bans. Industrial Rules limiting visible and fugitive emissions, PM, sulfur dioxide, and sulfur in fuels. Industrial Rules limiting visible and fugitive emissions, PM, sulfur dioxide, and sulfur in fuels.

10. Drafting TIP Air Analyst outlines what he would like to see including changes from current code. Air Analyst outlines what he would like to see including changes from current code. Drafting TIP – body is amended Tribal code with additional (non-code) sections to address CAA process and EPA requirements. Drafting TIP – body is amended Tribal code with additional (non-code) sections to address CAA process and EPA requirements. Specific exclusion from TIP of portions of Tribal code EPA cannot approve under CAA. Specific exclusion from TIP of portions of Tribal code EPA cannot approve under CAA.

11. Internal and Informal Review and Editing Review within Air Program – edit Review within Air Program – edit Send to certain EPA staff (Legal and Program) for informal comments. Send to certain EPA staff (Legal and Program) for informal comments. Edit and Explain based on comments. Edit and Explain based on comments. Swinomish Legal review and edits Swinomish Legal review and edits Back to EPA for second round of informal comments. Back to EPA for second round of informal comments. Edit and explain in cooperation w/ Legal Edit and explain in cooperation w/ Legal

12. Submission of Draft to EPA Final Draft developed with Tribal Legal Final Draft developed with Tribal Legal Submission to EPA with cover letter from Chairman. Submission to EPA with cover letter from Chairman. EPA reviews and approves draft. EPA reviews and approves draft.

13. Tribal Formal Adoption and CAA Process Once EPA approves draft we start formal adoption process. Once EPA approves draft we start formal adoption process. Follow Tribal and CAA Notice and Hearing requirements for final adoption. Follow Tribal and CAA Notice and Hearing requirements for final adoption. Notice Requirements. Notice Requirements. Public Hearing (Swinomish Planning Comm’n) Public Hearing (Swinomish Planning Comm’n) Submit to Tribal Senate (Council) for Adoption. Submit to Tribal Senate (Council) for Adoption. Submission to EPA for final approval. Submission to EPA for final approval.

14. Federal Notice and Hearing 40 CFR 51.102 Public hearing prior to tribal adoption and submission to EPA. Public hearing prior to tribal adoption and submission to EPA. “Reasonable Notice” to public at least 30 days prior to hearing. “Reasonable Notice” to public at least 30 days prior to hearing. Notice to EPA Administrator, local air agencies and any state significantly impacted. Notice to EPA Administrator, local air agencies and any state significantly impacted. Record of hearing (witness list and text). Record of hearing (witness list and text). Certification that hearing was in accordance with fed regulations. Certification that hearing was in accordance with fed regulations.

15. Swinomish Open Burning TIP Provisions Calling Burn Bans Calling Burn Bans Burn Permits, conditions and fees Burn Permits, conditions and fees Prohibited Materials Prohibited Materials Burn notifications and inspections Burn notifications and inspections Enforcement, Penalties and Damages Enforcement, Penalties and Damages Public information and hearings Public information and hearings Appeals and Due Process Appeals and Due Process

16. Swinomish Air Program Delegations TAS Section 105 Program TAS Section 105 Program Effected State Effected State TIP Open Burning (in review) TIP Open Burning (in review)Future Section 126? – petition for finding a major source in violation of NAAQS. Section 126? – petition for finding a major source in violation of NAAQS. Minor NSR? Minor NSR? Continued Monitoring and Designation issues. Continued Monitoring and Designation issues.

17. Regulation of Non-Tribal Sources on Reservation Treatment as a State and an EPA approved TIP give clear Tribal Authority. Treatment as a State and an EPA approved TIP give clear Tribal Authority. Tribes may choose portions of the CAA that are most useful to their situation. Tribes may choose portions of the CAA that are most useful to their situation. Lack of resources and desire to proceed with caution may mean incremental approach best for some tribes. Lack of resources and desire to proceed with caution may mean incremental approach best for some tribes.