AN INDUSTRY LAWYER'S PERSPECTIVE ON TRIBAL AIR POLLUTION CONTROL AUTHORITY UNDER THE CLEAN AIR ACT'S “TREATMENT AS STATES” PROVISION

• Jurisdiction: United States

Air Quality Regulation For The Natural Resources Industry
(2000)
CHAPTER 13C
AN INDUSTRY LAWYER'S PERSPECTIVE ON TRIBAL AIR POLLUTION CONTROL AUTHORITY UNDER THE CLEAN AIR ACT'S "TREATMENT AS STATES" PROVISION
William C. Scott
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico

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I. Introduction

As part of the 1990 amendments to the Clean Air Act (the "Act" or the "CAA"), Congress authorized the Administrator of the United States Environmental Protection Agency (the "EPA") to "treat Indian tribes as States" under the Act.¹ Specifically, the 1990 amendments established the minimum eligibility requirements for tribes to be treated as states and directed the EPA to "promulgate regulations...specifying those provisions of [the Act] for which it is appropriate to treat Indian tribes as States."² In response to that statutory directive, the EPA, on February 12, 1998, published its final rule (the "Tribal Authority Rule" or the "TAR") setting forth "the CAA provisions for which it is appropriate to treat Indian tribes in the same manner as States," establishing "the requirements that Indian tribes must meet if they choose to seek such treatment," and providing "for awards of federal financial assistance to tribes to address air quality problems."³

Among the many CAA programs for which EPA has determined that it is "appropriate to treat Indian tribes in the same manner as States" is the Title V operating permit program.⁴ Eligible tribes may, but are not required to, obtain approval to implement and enforce an operating permit program governing sources "within the exterior boundaries of the [tribe's] reservation or other areas within the tribe's jurisdiction."⁵ Because Title V of the CAA requires EPA to promulgate, administer, and enforce a federal operating permit program when a "State" has failed to timely develop or adequately administer and enforce such a program, EPA has declared that, until such time as a state or tribal program has been explicitly approved for such areas, EPA should implement and enforce a federal operating permit program covering both reservations and off-reservation "Indian country."⁶ Accordingly, on February 19, 1999, EPA published its final rule "setting forth EPA's approach for issuing Federal operating permits to covered stationary sources in `Indian county,' pursuant to Title V of the Clean Air Act as amended in 1990...."⁷ Under that rule, the EPA will administer a federal operating permit program within areas for which EPA believes the Indian country status is in question (even if a state program is already asserting authority over that geographic area and even if a source has already applied for or received a permit from that state program) until EPA explicitly approves or extends approval of a state or tribal program to cover that area. This rule, together with the TAR, will have a significant impact upon air permitting and regulation for sources in or near Indian country.

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This paper⁸ presents an industry lawyer's perspective⁹ on the development and implementation of tribal air pollution control authority under the CAA's treatment as states provision.¹⁰ Industry's concerns with tribal air quality regulation are varied. As a consequence, this paper does not (and could not) purport to speak for the entire regulated community. Instead, the paper highlights some common concerns or themes that have been distilled from conversations with representatives of the regulated community and from the author's own experience. The paper begins with a brief discussion of the relevant provisions of the 1990 amendments to the Act and EPA's implementing regulations. The paper then turns to an examination of five broad areas of concern to the regulated community. First, the paper addresses concerns about the EPA's approach to the review and approval of tribal applications for treatment as state status and delegation of program authority. Next, the paper reviews concerns about the EPA's approach to tribal jurisdiction over both on and off reservation sources. The paper then considers the potential problems arising from the possible dual tribal/federal regulation. After that, the paper considers issues related to tribal expertise and financing of air quality programs. Finally, the paper outlines concerns regarding development and enforcement of tribal air quality regulatory programs.

II. The 1990 Amendments Regarding Treatment of Tribes as States.

The 1990 amendments to the CAA added two provisions broadly authorizing tribes to be treated like states under the Act. First, Congress added Section 301(d)¹¹ (the "Treatment as States Provision") authorizing the EPA Administrator "to treat Indian tribes as States..."¹² and establishing the minimum eligibility criteria for tribes to be accorded such treatment. Under that section, Tribes may be treated as states only if:

(A) the Indian tribe has a governing body carrying out substantial governmental duties and powers;

(B) 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

(C) 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.¹³

Congress provided, however, that EPA need not treat tribes the same as states for every provision of the Act. "In any case in which the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the

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Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions so as to achieve the appropriate purpose."¹⁴

The second amendment affecting tribal authority was the addition of section 110(o) governing tribal implementation plans ("TIPs").¹⁵

If an Indian tribe submits an implementation plan to the Administrator pursuant to section 7601(d) of this title, the plan shall be reviewed in accordance with the provisions for review set forth in this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601(d)(2) of this title. When such plan becomes effective in accordance with the regulations promulgated under section 7601(d) of this title, the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.¹⁶

While that amendment declared that a TIP "shall be reviewed in accordance with the provisions for review set forth ... for State plans," the amendment also provided that the "Administrator may promulgate regulations which establish the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof."¹⁷

The 1990 amendments directed the EPA Administrator to "promulgate regulations within 18 months after November 15, 1990, specifying those provisions of this chapter for which it is appropriate to treat Indian tribes as States."¹⁸ The amendments further provided that if "the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions so as to achieve the appropriate purpose."¹⁹

On August 25, 1994, EPA issued proposed rules to implement the Treatment as States provision.²⁰ After receiving comments from state and tribal officials, private industry, and the general public, EPA made some revisions and then published the final TAR on February 12, 1998.²¹ That Rule became effective on March 16, 1998.²² In April, 1998, an appeal from the final TAR was filed in the United States Court of Appeals for the District of Columbia Circuit.²³ As of the date of this article's submission, that appeal was still pending.

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III. Industry Issues and Concerns Regarding Tribal Air Quality Regulation.

Two factors are at the heart the regulated communities concerns about EPA's delegation of air quality regulation to tribes. First, industry is concerned about the level of predictability and certainty under tribal regulatory programs. Whether already located within "Indian country" or considering locating to that area, regulated entities want a sense that the regulations governing their activities are clearly defined, that those regulations will remain relatively stable, and that they will be enforced in a consistent manner, subject, if necessary, to judicial review and oversight. Second, the regulated community is concerned about its ability to participate in development and revision of tribal programs. Industry is accustomed to being an active participant in the formulation of federal and state regulatory programs. The state and federal administrative regimes that the regulated community are used to provide for notice and an opportunity for comment, hearings and opportunities for judicial review. Such procedures not only promote more carefully considered administrative decisions, but also increase the confidence and comfort of the regulated community by giving them a role in, and a better understanding of, the rules that will govern their activities.

Unfortunately, the EPA's regulations implementing the CAA's treatment as states provision have engendered significant uncertainty in the regulated community about both the predictability of the regulatory regime governing air quality for sources in Indian country and industry's ability to participate in such regulatory regimes. EPA's approach concerning...