Transcript Document

Managing Air Quality in
Indian Country
Rich McAllister
US EPA Region 10
Overview
 Getting
Started
 Tribal inherent authority
 “Treatment in the same manner
as a State” or “TAS”
 Federal
Implementation

Delegation
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Getting Started with
Funding to Assess
 Indian
General Assistance
Program
 Sec. 103 of the CAA
 Assess air quality
 Inventory emissions and
identify problems
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The Inherent Authority of Tribes
Indian tribes were independent, selfgoverning societies long before contact
with European nations
 The U.S. recognizes tribes as “distinct,
independent political communities”
qualified to exercise powers of selfgovernment by reason of their original
tribal sovereignty

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Reserved 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withdrawn by treaty or statute, or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 selfgovernment and to control internal
relations

Subject to plenary power of Congress
(may be unilateral)

Authority over nonmembers as granted
or delegated by Congress

Inherent authority to regulate
nonmember conduct is limited
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Enforcement of
Tribal Requirements
 Key
issue: Does the Tribe wish to
establish civil requirements under
Tribal law enforced against both
members and nonmembers in Tribal
Court?
 Requires both Tribal Regulatory and
Tribal Adjudicatory jurisdiction
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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 a 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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Evolving Caselaw
Nevada v. Hicks
121 S. Ct 2304 (2001).
A tribal court lacks jurisdiction to
adjudicate a tribal member’s civil claims
against a state game warden who was
executing a search warrant on tribal
reservation lands for alleged offreservation crimes
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Nevada v. Hicks
“The ownership status of land . . . is
only one factor to consider in
determining whether regulation of the
activities of nonmembers is ‘necessary
to protect tribal self-government or to
control internal relations.’ . . . But the
existence of tribal ownership is not
alone enough to support regulatory
jurisdiction over nonmembers.”
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Plains Commerce Bank
128 S.Ct. 2709 (2008)



Montana does not permit Indian tribes to regulate
the sale of non-Indian fee land
Montana and its progeny permit tribal regulation
of nonmember conduct inside reservation that
“implicates the tribe’s sovereign interests”
“Tribe’s ‘traditional and undisputed power to
exclude persons from tribal land, gives it the
power to set conditions on entry to that land . .
via licensing requirements and hunting
regulations”
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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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What is TAS?

Congress gave EPA authority to treat
tribes in same manner as statute
authorizes 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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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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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

For areas outside boundaries of
reservation, application must demonstrate
tribe’s inherent authority
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How to Show
Authority for TAS


For applications covering areas within a
reservation, the Tribe must identify, with
clarity and precision, the exterior boundaries
of reservation [see Sec. 110(o)]
“Reservation” includes lands held in trust for
a tribe (tribal trust) and pueblos
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Tribal Implementation Plans


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A tribe with TAS may develop air programs
under Tribal law, subject to approval by EPA
Tribes are not bound by CAA deadlines for
submittal of implementation plans
Tribes may operate CAA programs using a
modular approach, or may chose to not
undertake air quality work under the CAA
No need for full criminal authority
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Approved
Tribal Implementation Plans
 Saint
Regis Mohawk Tribe of New
York, Dec. 10, 2007
 Mohegan
Tribe of Connecticut,
Nov. 14, 2007
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TAS Considerations



EPA will offer state opportunity to
comment on reservation boundaries &
publish newspaper notices of comment
opportunity
Once a TIP is approved by EPA, tribe’s
rules are federally enforceable
Compliance with EPA-approved TIP
means compliance with CAA
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EPA’s Direct Implementation
Authority under the CAA in Indian
Country
TAR preamble states EPA will protect
air quality throughout Indian Country by
directly implementing the CAA's
requirements under authority of sec.
301(d)(4) where tribes have chosen not
to develop or are not
implementing a
CAA 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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FIPs that Have Been Issued

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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)
Astaris-Idaho LLC Facility (formerly FMC
Corporation) in Fort Hall PM10 Nonattainment
Area, 40 CFR 49.10711 (2000)
Federal Air Rules for Reservations (FARR) in
EPA Reg. 10, 40 CFR Part 49, subpart C and M
(2005)
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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 the TIP and FIP apply

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Proposed Preconstruction
New Source Review Rules

Nonattainment Area Major NSR permits
Sources with PTE at least 100 tons/year
(lower for some pollutants)
 Requires Lowest Achievable Emission
Rate technology (LAER)
 Emission offsets


Minor NSR
Sources above thresholds
 Synthetic minor sources

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EPA Program Delegation

Delegates authority to tribe to help EPA
administer a specific federal air rule


EPA 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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Delegation of the Part 71
Program to the Navajo Nation

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14 Title V sources on Navajo Nation
Permit fees must be sufficient to cover
“permit program costs”
Navajo Nation sought delegation of EPA’s
Part 71 program before applying for TAS
and Part 70 operating permits program
Fees are paid to Navajo because Part 71
programs fully delegated
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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 the 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,
including calling “burn bans”
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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

Tribe assists EPA in implementing federal
environmental programs for Indian tribes in
absence of acceptable tribal program
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Reasons for DITCAs


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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
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
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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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CONDUCTING INSPECTIONS
AS AUTHORIZED EPA REP

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Ensures better coverage by trained
inspectors and better enforcement by EPA
Allows quicker response to emergencies,
especially in remote areas
Provides increased environmental protection
Authorizes direct participation of tribe’s staff
Requires EPA to determine that issuing
Inspector credential is appropriate
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Contact Information
Rich McAllister
Office of Regional Counsel
US EPA Region 10
[email protected]
206-553-8203
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