1. Laura McKelvey, U.S. EPA

2. 2  CAA Implementation Authority [Section 301(d)] ◦ 1990 CAA Amendments ◦ Tribal air management authority ◦ TAS / TIP

3. 3  EPA proposed implementation in 1994 ◦ Eligibility requirements ◦ Application procedures ◦ Provisions for “treating tribes like states”  Rule proposed Aug. 25, 1994  Rule promulgated February 12, 1998

4. 4  Jurisdiction  Sovereign immunity  Modular approach  Grant match requirement  Federal implementation  Eligibility requirements

5. 5  Within exterior boundaries of reservation  Other areas where tribes can demonstrate jurisdiction

6. 6  Treating tribes in a manner similar to states ◦ Tribes objected ◦ Sovereign immunity waived only voluntarily or by Congressional statute  Final TAR addresses issue directly ◦ Withdraws proposal on section 304 ◦ Allows alternative to judicial review

7. 7  Ensures flexibility  Tribes and EPA develop approaches  Elements to be ◦ Reasonably severable ◦ Consistent with legal requirements

8. 8  Grants under Sec. 103 & 105  Sec. 103 requires no match  Sec. 105 ◦ 5%, then 10% after 2 years with TAS with EPA RA demonstration of tribes’ ability to increase it’s share ◦ 40% without TAS ◦ Waivers available for hardship (rare)  EPA will review program over time

9. 9  Trust responsibility  Federal Implementation Plan (FIP) required ◦ With necessary and appropriate provisions ◦ Without unreasonable delay

10. 10  Federally recognized tribe  Governing body with substantial governing duties and powers  Statement of tribe’s authority to regulate air quality  Capability to carry out program

11. 11  DC Circuit Court of Appeals  Petitions for review filed by ◦ State of Oklahoma ◦ AZ Public Service Company ◦ National Assoc. of Manufacturers et al. ◦ Salt River Project et al. ◦ Oklahoma Gas and Electric Co. ◦ National Mining Association

12. 12  Judicial review  Direct administration  Public participation in TAS process  Reservation size  Jurisdiction  Oklahoma-specific issues

13. 13  Upheld EPA’s interpretation on every issue  One judge dissented on extent of delegation provided by Congress

14. 14  Issues in petition ◦ Definition of “reservation” ◦ Congressional delegation of authority  Supreme Court denied certiorari (review) ◦ (re-hearing possible but not likely)  DC Circuit Court opinion upheld

15. 15 ◦ TAS is eligibility (we used to call it an eligibility determination)  Implementation another matter  Administrative programs – nothing to implement (CAA 105), does not require separate program  No obligation  Part of unique 2-step process (TAS/TIP)

16. 16 ◦ 40 CFR 49.9 details EPA review  Within 30 days of completeness finding  Notice/comment to appropriate governmental entities  (g) if the EPA RA determines that a tribe meets the requirements of 49.6 for the purposes of a Clean Air Act provision, the Indian tribe is eligible to be treated in the same manner as a state with respect to that provision.

17. 17  Tribal Implementation Plan ◦ Paralleled by SIP and FIP  Implements TAS programs ◦ Tribe must submit demonstration of capability to implement  Can be combined with or separate from TAS application

18. 18 ◦ Does create an obligation  (h) …a tribal application containing a CAA program submittal will be reviewed by EPA in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal.  Tribes have been approved for CAA §106, 107, 110  Administrative delegations of § 105, 505(a)(2)  Navajo Nation has delegation of Part 71  Minor NSR permitting at St. Regis Mohawk