Managing Air Quality in Indian Country withTIPs, SIPs and FIPs

Rich McAllister

Hobbs, Straus, Dean & Walker

206-245-5985

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Overview

Tribal inherent authority “Treatment in same manner

as State” or “TAS”

Federal implementation Delegation

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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

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SIPS and Implementation Plans Affect Indian Country

Tribes have interests in SIPs, may participate in state SIP development processUpwind or airshed sources outside reservation

regulated by stateSources 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

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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

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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 approachChoose not to undertake AQ work under CAA

No need for full criminal authority

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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

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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 aCAA program

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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

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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

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Reserved Rights DoctrineReserved 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)

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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

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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

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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.”

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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

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

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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)

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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

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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)

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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

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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

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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

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TAS and TIP ConsiderationsTAS 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

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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

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EPA TAS StrategyJan. 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

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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

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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)

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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)

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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

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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)

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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)

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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

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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

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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

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EPA Program Delegation

Delegates authority to tribe to help EPA administer specific federal air ruleEPA 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

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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”

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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

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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.”

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Contact Information

Rich McAllister, Of Counsel

Hobbs, Straus, Dean & Walker

rich@richmcallisterlaw.com

206-245-5985