Transcript Tribal Authority Rule (TAR) Overview

Laura McKelvey, U.S. EPA
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CAA Implementation Authority
[Section 301(d)]
◦ 1990 CAA Amendments
◦ Tribal air management authority
◦ TAS / TIP
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EPA proposed implementation in 1994
◦ Eligibility requirements
◦ Application procedures
◦ Provisions for “treating tribes like states”
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Rule proposed Aug. 25, 1994
Rule promulgated February 12, 1998
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Jurisdiction
Sovereign immunity
Modular approach
Grant match requirement
Federal implementation
Eligibility requirements
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Within exterior boundaries of reservation
Other areas where tribes can demonstrate
jurisdiction
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Treating tribes in a manner similar to
states
◦ Tribes objected
◦ Sovereign immunity waived only voluntarily or by
Congressional statute
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Final TAR addresses issue directly
◦ Withdraws proposal on section 304
◦ Allows alternative to judicial review
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Ensures flexibility
Tribes and EPA develop approaches
Elements to be
◦ Reasonably severable
◦ Consistent with legal requirements
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Grants under Sec. 103 & 105
Sec. 103 requires no match
Sec. 105
◦ 5%, then 10% after 2 years with TAS with EPA RA
demonstration of tribes’ ability to increase it’s
share
◦ 40% without TAS
◦ Waivers available for hardship (rare)
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EPA will review program over time
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Trust responsibility
Federal Implementation Plan (FIP)
required
◦ With necessary and appropriate provisions
◦ Without unreasonable delay
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Federally recognized tribe
Governing body with substantial governing
duties and powers
Statement of tribe’s authority to regulate
air quality
Capability to carry out program
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DC Circuit Court of Appeals
Petitions for review filed by
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State of Oklahoma
AZ Public Service Company
National Assoc. of Manufacturers et al.
Salt River Project et al.
Oklahoma Gas and Electric Co.
National Mining Association
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Judicial review
Direct administration
Public participation in TAS process
Reservation size
Jurisdiction
Oklahoma-specific issues
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Upheld EPA’s interpretation on
every issue
One judge dissented on extent of
delegation provided by Congress
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Issues in petition
◦ Definition of “reservation”
◦ Congressional delegation of authority
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Supreme Court denied certiorari (review)
◦ (re-hearing possible but not likely)
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DC Circuit Court opinion upheld
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◦ TAS is eligibility (we used to call it an
eligibility determination)
 Implementation another matter
 Administrative programs – nothing to
implement (CAA 105), does not
require separate program
 No obligation
 Part of unique 2-step process
(TAS/TIP)
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◦ 40 CFR 49.9 details EPA review
 Within 30 days of completeness finding
 Notice/comment to appropriate
governmental entities
 (g) if the EPA RA determines that a tribe
meets the requirements of 49.6 for the
purposes of a Clean Air Act provision,
the Indian tribe is eligible to be treated
in the same manner as a state with
respect to that provision.
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Tribal Implementation Plan
◦ Paralleled by SIP and FIP
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Implements TAS programs
◦ Tribe must submit demonstration of capability
to implement
 Can be combined with or separate from TAS
application
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◦ Does create an obligation
 (h) …a tribal application containing a CAA program
submittal will be reviewed by EPA in accordance
with applicable statutory and regulatory criteria in a
manner similar to the way EPA would review a
similar state submittal.
 Tribes have been approved for CAA §106, 107, 110
 Administrative delegations of § 105, 505(a)(2)
 Navajo Nation has delegation of Part 71
 Minor NSR permitting at St. Regis Mohawk
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