Options for Tribes to Manage Air Quality in Indian Country

Rich McAllisterHobbs, Straus, Dean & Walker206-245-5985

Laura McKelveyEPA Office of Air Quality Planning and Standards919-541-5497

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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

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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

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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

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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

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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

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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

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TIP BenefitsTIP 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

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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)

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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 yetimplementing aCAA program

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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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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

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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)

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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.”

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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

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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

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EPA/Tribal Authorization Agreement and

Yearly Work Plan Document inspector training Conditions/limits on use of credentials

When inspections may be conductedWhere inspections may be conducted

Credential security measures, including reporting of lost credentials Submit inspection reports for all inspections

conducted with EPA credentials

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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

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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)

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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

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Potential Air Quality Non-Regulatory Roles

Indoor AQ monitoring and other indoor work

Woodstove change-outs Outreach and education Solid waste management

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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

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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?

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QUESTIONS?