Managing Air Quality in Indian Country

Rich McAllisterUS EPA Region 10

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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 CAAAssess air qualityInventory emissions and

identify problems

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The Inherent Authority of Tribes

Indian tribes were independent, self-governing societies long before contact with European nations

The 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“In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.”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

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 off-reservation 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 Bank128 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

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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ApprovedTribal Implementation Plans

Saint Regis Mohawk Tribe of New York, Dec. 10, 2007

Mohegan Tribe of Connecticut, Nov. 14, 2007

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TAS ConsiderationsTAS 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 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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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)

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 permitsSources with PTE at least 100 tons/year

(lower for some pollutants)Requires Lowest Achievable Emission

Rate technology (LAER)Emission offsets

Minor NSRSources above thresholdsSynthetic minor sources

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EPA Program Delegation

Delegates authority to tribe to help EPA administer a 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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Delegation of the Part 71 Program to the Navajo Nation

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

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

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

mcallister.rich@epa.gov

206-553-8203