Air Pollution Control on the Southern Ute Indian Reservation
| Publication year | 2013 |
| Pages | 85 |
Natural Resource and Environmental Law
Air Pollution Control on the Southern Ute Indian Reservation
By Sam W. Maynes
Natural Resource and Environmental Law articles are sponsored by the CBA Environmental Law, Water Law, and Natural Resources and Energy Law Sections. The Sections publish articles of interest on local and international topics.
Coordinating Editors
Melanie Granberg (Environmental), Denver, Gablehouse Calkins & Granberg, LLC-(303) 572-0050, mgranberg@gcgllc.com; Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP-(303) 443-6800, kkinnear@pbblaw.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham & Stubbs LLP-(303) 892-7470, joel.benson@dgslaw.com
About the Author
Sam W. Maynes is a partner in the Durango law firm of Maynes, Bradford, Shipps & Sheftel, LLP. For several decades, the Maynes firm has served as general legal counsel for the Southern Ute Indian Tribe. His practice involves representation of the Tribe in many diverse matters, including natural resources, environmental matters, intergovernmental relations, taxation, treaty rights, and jurisdictional and regulatory issues. Recently, his work has involved assisting the Tribe in the development and implementation of air pollution control programs for the Southern Ute Indian Reservation. Maynes thanks his partner Thomas H. Shipps for his comments on the draft of this article and his former partner Patricia A. Hall for her expert editing.
This article describes the obstacles the Southern Ute Indian Tribe overcame and the lessons learned by the Tribe in becoming the first Indian tribe in the nation to receive a delegation of authority from EPA to administer the Clean Air Act's Title V (40 CFR Part 70) operating permits program on its reservation in Southwest Colorado.
Since 1999, the Southern Ute Indian Tribe (Tribe) and State of Colorado (State) have been working cooperatively under a unique intergovernmental agreement (IGA) to develop air pollution control programs for the Southern Ute Indian Reservation.[1] On March 2, 2012, the U.S. Environmental Protection Agency (EPA) delegated authority to the Tribe to administer the program developed through the IGA,[2] and the Tribe thereby became the first Indian tribe with authority to administer the Clean Air Act's (CAA) Title V, 40 CFR Part 70, operating permit program.[3]
Title V of the Clean Air Act
In 1990,[4] the U.S. Congress added Title V to the CAA with provisions authorizing EPA to treat Indian tribes in the same manner as states for purposes of administering air pollution control programs on their reservations. Title V gave states three years to develop and submit for EPA approval a permitting program for "major sources" of air pollution.[5] "Major sources" are defined as any stationary facility or source of air pollutants that directly emits or has the potential to emit 100 tons per year or more of any air pollutant.[6] To be approvable, the state programs must include certain minimum elements that are listed in Title V and EPA regulations.[7]
Among the minimum elements, Title V permitting programs must require owners and operators of major sources to apply for and receive an operating permit within twelve months after the source has begun to operate or within twelve months of the source becoming subject to an approved program.[8] The permits contain monitoring, record-keeping, and reporting requirements.[9] Owners of sources with operating permits must certify that the source is in compliance each year, and the permits must be renewed every five years.[10] The permit fee provisions require sources to pay fees sufficient to cover the costs of developing and implementing the permit program.[11]
Title V does not impose new substantive air pollution control requirements;[12] rather, operating permits compile all the requirements of the CAA applicable to a facility into one document.[13] Congress's objective, by requiring the incorporation of the underlying applicable requirements into a single document, was to enable owners and operators, states, EPA, and the public to better understand the requirements to which each source is subject and whether the source is meeting those requirements.[14]
The Tribe overcame several obstacles in obtaining delegation to administer a Part 70 program on the Reservation. An examination of those obstacles reveals that, although the system for regulating air pollution on the Reservation satisfies most of the IGA's objectives, it is administratively cumbersome and may not be a model for other tribes.
The Southern Ute Indian Reservation
Located in Southwestern Colorado, the Southern Ute Indian Reservation includes approximately 700,000 acres of tribal trust lands; Indian allotments; homestead fee tracts; tribally owned or Indian-owned fee land; Bureau of Reclamation, National Forest, and Bureau of Indian Affairs lands; and State-owned land-a patchwork pattern of reservation land ownership commonly referred to as a "checkerboard reservation." The Southern Ute Indian Tribe currently owns (either in its own name or as a federal trust beneficiary) approximately 300,000 acres of the surface estate within the Reservation, as well as much of the mineral estate. The Reservation includes substantial portions of the northern San Juan Basin and, since the 1950s, natural gas exploration and development have been widespread. Consequently, several thousand well-pads dot the Reservation, and roads and gathering pipelines crisscross the Reservation. Among the many oil and gas facilities on the Reservation, there are currently forty-two major sources of air pollution, consisting mainly of natural gas wells, compressors, and associated processing facilities and equipment.[15] The number of major sources on the Reservation amounts to approximately one-third of the major sources in all of Indian country nationwide,[16] as well as an estimated 1,000 minor sources of air pollution.[17]
Regulation of Air Pollution
Inside and Outside Indian Country
Outside Indian country, air pollution generally is regulated by the state where the source is located. EPA delegates responsibility to any state that desires to create its own air pollution control programs, provided the state program is no less stringent than those established by EPA.[18]
CAA § 301(d) authorizes EPA to treat Indian tribes as states for various CAA programs. For a tribe to receive a delegation of authority from EPA to implement a particular CAA program on its reservation, the tribe must apply for and receive 'Treatment in the same manner as a State" (TAS) status. EPA is authorized to grant TAS status when a tribe meets the following criteria:
1. the Indian tribe has a governing body carrying out substantial governmental duties and powers;
2. the functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction; and
3. the Indian tribe is reasonably expected to be capable, in the judgment of the Administrator, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations.[19]
In the absence of a delegation of authority to a tribe, EPA regulates the emission of air pollutants from sources in Indian country.[20]
Obstacles to Obtaining Delegation of the Title V Program
It was not easy for the Tribe to obtain a delegation of the Title V program. The following discussion describes the obstacles the Tribe overcame.
State Challenge to the Scope of the Tribe's Authority to Regulate Air Pollution Sources
The first of two major obstacles the Tribe faced in obtaining approval of its TAS application to administer the Part 70 operating permit program was a potential challenge by the State to the scope of the Tribe's authority to regulate air pollution sources on the Reservation. Under § 301(d) of the CAA, a required eligibility criterion for obtaining TAS approval is that the functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the tribe's reservation. EPA interprets that provision as a delegation of federal authority to tribes approved by EPA to administer CAA programs in the same manner as states, over all air resources with the exterior boundaries of the tribe's reservation for such programs.[21] Under that interpretation, tribes with checkerboard reservations are not required to demonstrate inherent authority over fee lands within their reservation,[22] but instead can rely on the federal statute as a grant of authority.[23]
In 1998, the Tribe submitted a TAS application requesting treatment as a state with respect to the administration of CAA programs over all land within the Reservation. The specific purposes of the TAS application were to receive grant funding under CAA § 105 and recognition as an "affected state" to comment on draft operating permits proposed by neighboring permitting authorities.
The basis for the Tribe's assertion of jurisdiction to regulate all sources of air pollution located within the Reservation's exterior boundaries under the CAA, including non-Indian-owned sources located on fee lands, was two-fold. First, the Tribe relied on EPA's interpretation that, in adding § 301(d) to the CAA, Congress specifically delegated federal jurisdiction to tribes. Second, even if a demonstration of inherent tribal jurisdiction were required, the Tribe would still qualify for TAS status under the CAA for all lands within the Reservation, because air pollution is a matter that affects the general welfare of the Tribe.[24]
In comments on the Tribe's TAS application, the...
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