1. Addressing the Oklahoma DEQ v. EPA D.C. Circuit Decision: Implementation Plans in Indian Country National Tribal Forum – May 2015 EPA Outreach and Information Division – RTP, North Carolina

2. Objectives 2  Familiarize you with the court’s decision.  Describe issues arising from the decision.  Get your thoughts regarding these issues.

3. “Indian country” 3  Reservations: both formal and informal reservations/ Trust lands  Allotments  Dependent Indian Communities The D.C. Circuit decision impacts non-reservation Indian country, i.e., allotments and dependent Indian Communities.

4. Key Elements of Decision 4  January 2014 D.C. Circuit adverse decision; April 2014 rehearing denied; Dept. of Justice and EPA did not seek Supreme Court review.  Vacates EPA’s Indian country NSR rule for non- reservation areas. Under CAA sec. 107(a), states, not EPA or tribes, have initial primary responsibility for, and jurisdiction over, non-reservation Indian country for purposes of implementation plans.  The court noted that state jurisdiction can be displaced by a demonstration by EPA or a tribe that a tribe has jurisdiction over a particular non-reservation area.

5. Key Elements of Decision (continued) 5  A few key points regarding the reach of the decision:  Does not apply to reservations.  Does apply to non-reservation Indian country throughout the U.S., not just lands in Oklahoma.  In EPA’s view, applies to SIPs under CAA sec. 110; does not apply to other statutes or other parts of CAA such as Title V, 111(d).  Oklahoma believes it applies to all programs under the CAA  To the extent that states are aware of the decision, some are comfortable with it while others may have concerns.  States cannot waive responsibility for CAA implementation plan coverage of non-reservation areas within their borders.

6. 180 o Reversal of Initial Primary Responsibility 6 State EPA Tribe State EPA Pre-decisionPost-decision

7. Principles 7  Ensure air quality is protected – no gaps.  Protect tribal sovereignty consistent with the Federal Trust responsibility and Federal and EPA policy.  Minimize burden wherever possible on tribes, states, sources, and EPA.  Provide regulatory certainty to sources that would like to locate in non-reservation areas.

8. Implementing the Decision 8 Issues We Particularly Need Your Thoughts On: 1. Information gathering/scoping: Where is non- reservation Indian country and what sources exist (or would like to locate) there? 2. Managing tribal consultations for future SIP approvals since many now apply to parts of Indian country. Additional Issues Are there other issues related to the decision that you would like to raise?

9. Issue 1 - Information Gathering/Scoping 9  Significant information gaps exist:  Where are the non-reservation areas of Indian country?  What sources exist (or would like to locate) there?  What is said about Indian country in prior SIP approvals and SIPs?  Some gap-filling efforts are underway at EPA and at Dept. of the Interior.  Complete answers to these questions are unlikely in the near future (or even long-term?)

10. Issue 2 - Offering Consultation on SIP Actions 10  As a result of the court’s decision, SIP actions (under CAA sec. 110) in states with non-reservation areas of Indian country could affect tribes.  E.O. 13175 “Consultation and Coordination with Indian Tribal Governments” and EPA’s Tribal Consultation Policy are considerations.  EPA processes hundreds of SIP actions each year, some of which are substantive (e.g., an attainment SIP), and others of which are more administrative in nature.  Ideally a process for offering consultation would (1) enable tribes to engage in a meaningful way, (2) minimize burden on tribes and EPA, and (3) minimize delay.

11. Issue 2 – Offering Consultation on SIP Actions (continued) 11 What ideas do you have for how EPA might offer consultation to tribes regarding upcoming SIP actions? Do you think your tribe would want to consult with EPA on SIP actions? If so, what kinds of SIP actions may be of interest? Opportunity To Provide Feedback

12. Discussion and Next Steps Gregory Green U.S. EPA Office of Air Quality Planning and Standards green.gregory@epa.gov (919) 541-2769