CHAPTER 12 The Clean Air Act “Treatment As States” Rule

• Jurisdiction: United States

Natural Resources Development and Environmental Regulation in Indian Country
(May 1999)
CHAPTER 12
The Clean Air Act "Treatment As States" Rule
William C. Scott
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico

I. Introduction

Air quality regulation in this country has long been characterized by varying degrees of shared responsibility and authority between the federal government and the states. Beginning in the 1950's the federal government provided financial and technical assistance to the states to study the problem of air pollution.¹ Then, in the 1960's, Congress provided for the establishment of air quality criteria which the states could, but were not required to, adopt.² By 1970, Congress mandated the establishment of national air quality standards that each state then became primarily responsible for implementing, maintaining and enforcing.³ Since then, the federal government and the states "have had to work together to prepare state implementation plans, emission inventories, air pollution control measures, ambient air monitoring networks, and a host of other elements of the comprehensive [national] air quality management strategy."⁴

This model of allocated responsibility for air quality management did not authorize Indian tribes to participate as governments in implementing, maintaining, or enforcing national air quality standards or other national air quality management programs.⁵ The 1990 amendments to the federal Clean Air Act⁶ (the "CAA" or "Act"), however, have changed that by authorizing the Administrator of the United States Environmental Protection Agency (the "EPA") to "treat Indian tribes as States" under the Act.⁷ The 1990 amendments established the minimum eligibility requirements for tribes to be treated as states for purposes of the Act and directed the EPA to "promulgate regulations...specifying those provisions of [the Act] for which it is appropriate to treat Indian tribes as States."⁸ In response to that statutory directive, the EPA, on February 12, 1998, published its final rule (the "TAS Rule") 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."⁹

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.¹⁰ 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."¹¹ Because Title V of the CAA

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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."¹² 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 country,' pursuant to Title V of the Clean Air Act as amended in 1990...."¹³ 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 TAS Rule, will have a significant impact upon air permitting and regulation for sources in or near Indian country.

This paper examines these two significant rules governing air quality management within "Indian country." Part II of the paper provides a brief background concerning the evolution of the treatment of Indian tribes under the CAA and reviews the pertinent 1990 amendments to the Act. Part III then examines the issues and problems raised by the TAS Rule. Part IV in turn discusses the issues and problems raised by the amendments to EPA's regulations governing federal operating permits for sources in Indian country.

II. Evolution of the Treatment of Tribes Under the Federal Air Pollution Control Laws.

A. Background.

Congress passed the first significant federal air pollution control act in 1963.¹⁴ That act neither mentioned Indian tribes nor authorized direct tribal government participation in air quality management. That act provided for federal grants to state and local air pollution control agencies and established a cumbersome scheme for municipalities, states and interstate air pollution control agencies to abate air pollution which endangered "the health or welfare of persons in a State other than that in which the discharge" originated by means of an abatement conference.¹⁵ While some abatement conferences were held and some rudimentary control efforts were initiated as a result of those conferences, it was clear that the 1963 act was not adequately addressing the air pollution problem.

Congress enacted the Air Quality Act of 1967 to address some of the perceived shortcomings of the 1963 act.¹⁶ The 1967 act required the Secretary of the Department of Health, Education and Welfare ("HEW") to define "atmospheric areas of the Nation on the basis of those conditions, including, but not limited to, climate, meteorology and topography, which affect the interchange and diffusion of pollutants in the atmosphere."¹⁷ Next, the act directed the HEW to designate, after consultation with appropriate state and local authorities, "air quality control regions based on jurisdictional boundaries, urban-industrial concentrations,

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and other factors including atmospheric areas necessary to provide adequate implementation of air quality standards."¹⁸ The consideration of "jurisdictional boundaries" focused on state, county, or municipal boundaries, without consideration of tribal jurisdiction.¹⁹ Once air quality control regions had been defined, the HEW was to "develop and issue to the States such criteria of air quality as in his judgment may be requisite for protection of public health and welfare."²⁰ States, in turn, could then elect to "adopt, after public hearings, ambient air quality standards applicable to any designated air quality control region or portions thereof within such State" so long as the standards were "consistent with" the HEW criteria.²¹ The states could also establish "implementation plans" to achieve the federally approved ambient air quality standards.²² Like the 1963 act, the 1967 act did not mention Indian tribes or reservations and did not provide for direct participation by tribal governments in air quality regulation.²³ As a consequence, air quality standards within reservation boundaries were controlled, directly or indirectly, by states and air pollution sources on Indian lands were regulated, if at all, by the states.

The 1970 amendments to the Clean Air Act²⁴ restructured the federal/state scheme for regulating air pollution. The 1970 amendments continued to look to state and local governments as the primary regulatory bodies, but provided the newly created United States Environmental Protection Agency with authority to establish minimum air quality and regulatory goals that the states and local governments were required to achieve. Specifically, Congress commanded the EPA to establish primary and secondary national ambient air quality standards ("NAAQS") to protect public health and welfare.²⁵ Each state was then to "have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State."²⁶ Congress further mandated that EPA promulgate a federal implementation plan for any area that did not meet specified attainment deadlines.²⁷ The 1970 amendments also strengthened the federal role by adding a new section providing, among things, federal authority to enforce state implementation plan provisions.²⁸ Once again, the 1970 amendments did not mention Indian tribes or provide a role for tribal governments in implementing the federal air quality management scheme.²⁹

Section 110 of the 1970 amendments, governing state implementation plans (SIPs), became and has remained a key regulatory section in the CAA. Section 110 implements the CAA's underlying philosophy that "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments...."³⁰ The 1970 version of § 110 of the CAA mandated that, within nine months³¹ after the promulgation of a primary or secondary NAAQS, each State "shall...adopt and submit to the Administrator...a plan which provides for implementation, maintenance, and enforcement" of each such primary and secondary standard "in each air quality control region (or portion thereof) within such State."³² Each SIP is thus the "master plan for the state's compliance with applicable NAAOS."³³ SIPs are also the vehicle for states to

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"implement source-specific federally mandated control programs" including "new source review (NSR) under federal NSPS...