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Tribal Permit Training

Fond du Lac Reservation

June 12, 2013

Tribal Roles in Minor NSRby: Joy Wiecks, Fond du Lac Band

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What We Will CoverHistory and purposeGeneral permitting

informationTribal decision matricesPro’s and con’s of

decision choicesWhat to consider in

decision-making

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Initiated in 1990’s, proposed in 2006, finalized on July 1, 2011

Tribal NSR closed a gap in permitting on Reservations

Tribes now have input on how on-Reservation sources will be permitted

Tribal New Source Review Implementation manual available from NTAA and EPA websites, May 2012

Tribal NSR Overview

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Permitting GapPreviously, only major sources in

attainment areas could be permitted in Indian Country

Minor sources – no mechanism for permitting

Major sources in non-attainment areas – no mechanism for permitting

No predictability for sources or tribes

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TNSR clarifies the permitting process and tribal jurisdiction, and creates a mechanism for permitting

Protects air qualityLevels the playing field in terms of

Predictability for econ. developmentPermit content

Minor NSR regulates True minor sourcesSynthetic minor sourcesMinor modifications at Major sources

Non-attainment major NSR gap also filled

TNSR, Continued

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Minor Source Permitting Information

Major sources - emit more than 250 ton/year of any criteria pollutant (or more than 100 tpy in 28 specific source categories)

Minor sources – emit 0.1-10 tpy of a criteria pollutant

“True” minor’s potential emissions stay under major source thresholds at all times

“Synthetic” minor sources need permit limits to do this

Sources need to obtain pre-construction permits

Permits may have requirements/limits for operating parameters

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Developed to help tribes understand options for implementing the Tribal NSR rule

Three scenarios are presented that range from:Tribe wanting no, little, or limited

participationTribe wanting to start small and develop

program over timeAny combination or mixture of these steps are

open to the tribe

Tribal Involvement Decision Matrix

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Decision Matrix

Education &

Outreach

Assessment/

Analysis

Identify & Determine

Goals/Priorities

Basic Options

EPA Implements Program

Delegation

TIP/Tribal Rule

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Matrix Continued

Delegation TIP/Rule

EPA Implementatio

n/Tribal Participation

Cap

aci

ty

Cri

teri

a

Reso

urc

es

Imp

lem

en

tat

ion

Pro

s/C

on

s

Role

s &

R

esp

on

sib

ilit

ies

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Education & Outreach

Identify resources to learn about:Final ruleImplementation issues

Better understand information to present to:Tribal leadersCommunity tribal

audienceSources on the

Reservation

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Assessment

Determine to what extent tribe wants to participate in implementation of the NSR rule

Identify sources to have data to support your proposed plan of action

Identify plans for future economic development

Meet within the tribe and with EPA to discuss

Identify questions for EPA to answer to help your tribe make an informed decision

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Identify PrioritiesDetermining priorities is important

Number of sources on ReservationResourcesPolitical direction of tribe

Determine what tribe is willing to engage in or prepared to do today to implement TNSRAnd, to what extent in the future

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Steps in ProcessMoving from lowest involvement or

none at all, the following slides will show choices ranging from EPA implementation of TNSR to full tribal implementation

Remember, a tribe may decide to jump in between steps due to capacity levels as they move towards developing a Tribal NSR rule implementation plan

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Tribal NSR Decision Matrix

Because the TNSR was done as a FIP… EPA is required to implement the program The tribe is not required to participate

A tribe may chose… To do nothing Limited participation (i.e. outreach, conf. calls) Participate or begin building capacity and work

with EPA Review permits Help with outreach to the community

Delegation

EPA Implementatio

n/Tribal Participation

TIP/Rule

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Pros and Cons of EPA Implementation

Pros Builds tribal capacity over time EPA lends credibility No TAS necessary Low to medium tribal resources needed Least likely to lead to challenges to tribal

jurisdiction Pros/Cons

More supportive of sovereignty than prior to rule No enforcement role for tribes

Cons EPA resources may be limited Less control over progress/rule implementation Can be seen as infringement on sovereignty

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Tribal NSR Decision Matrix

Delegation is an established agreement to authorize the administration of one or more federal rules in a FIP with a tribe to assist in whole or partial administration of a specific Tribal NSR rule, with EPA retaining enforcement responsibility

EPA Implementatio

n/Tribal Participation

Delegation TIP/Rule

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Pros and Cons of Delegation Pros

Builds tribal capacity Credibility of implementing an EPA program Less complicated than developing TAS or TIP Tribal involvement may improve community acceptance of

program May be most effective and efficient due to tribal

knowledge Pros/Cons

More supportive of sovereignty than prior to rule No enforcement for tribe

Cons Some parties may challenge tribe’s participation Non-tribal constituents may have concerns Requires more resources and capacity than EPA

implementation Less assertion of tribal sovereignty than a TIP

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Delegation (continued) Requirements for delegation

Show federal recognition Have governing body adequate to carry out the duties

and powers over the area Identify Reservation boundaries Demonstrate tribe has or will have technical capacity TAS is not required for delegation

Delegation can be requested for the entire FIP or it can be severable

Roles and responsibilities Tribe can take on as much or as little as they wish Tribe may develop its own rules or codes to implement

a program Capacity – tribes can work through delegation with

EPA to build capacity by doing the work

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Tribal NSR Decision Matrix

A tribe can choose to develop a TIP to take on authority for ensuring that the NAAQS are met within its jurisdiction

Developing a TIP gives the tribe the option of implementing and enforcing its own program

Once a TIP is approved by EPA, the provisions of the implementation plan become federally enforceable in addition to being enforceable by the tribe

TAS is required for a TIP

EPA Implementati

on/Tribal Participation

Delegation TIP/Rule

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TIP/Tribal Rule Pros

Tribally implemented program Tribal rules may be better fit than federal program Greatest exertion of Tribal sovereignty Tribal program may be more acceptable to a tribal

population Pros/Cons

Enforcement issues Cons

May draw challenges to tribal authority or boundaries

Non-tribal constituents may have concerns Resource intensive Demands lots of coordination with EPA

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Decision MatrixAreas to consider

when deciding which route to pursue (if any)

Example questions What type of capacity is

needed for delegation? Criteria for delegation? Resources needed? How to implement a

delegated program? Pros and cons for the tribe? What are the specific roles

and responsibilities of the tribe/EPA in a delegated program?

Capacity

Delegation Criteria

Resources

How to Implement

Pros/Cons

Roles and Responsibilities

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ConclusionsDecision of what route to take is very

individual depending on your tribeNeed to make decision working with

your tribal governmentIf decide to pursue a more active role,

talk with EPA to determine roles/schedule, etc.