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Options for Tribes to Manage Air Quality in Indian Country
Rich McAllisterHobbs, Straus, Dean & Walker206-245-5985
Laura McKelveyEPA Office of Air Quality Planning and Standards919-541-5497
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Overview Assessing the situation with EPA grants Using tribal inherent authority Federal environmental law alternatives
CAA treatment in same manner as a state Federal Direct Implementation Delegation to administer federal
programs DITCAs, EPA Inspector credentials,
circuit riders Intergovernmental agreements
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How to fill the regulatory gap?
Approve tribal programs Direct implementation by EPA Develop rules to fill regulatory gap Build capacity of tribes to assist EPA Develop cooperative approaches with
tribes, states, locals
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Assessment Grants
Indian General Assistance Program Section 106 of the Clean Water Act Sec. 104(b)(3) of the CWA Sec. 319 of the CWA (non-point source) Sec. 103 of the Clean Air Act Sec. 23 of FIFRA
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Program Financial Assistance
Sec. 105 of CAA Pollution Prevention Act, Sec. 6605 Public Water System Supervision under Sec.
1443 and 1451 of the Safe Drinking Water Act Lead-Based Paint Program under Title IV of
the Toxic Substances Control Act Tribal response program under Sec. 128 of the
CERCLA
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Clean Air Act Options for Tribes
TAS for grants and other roles to study and participate in air quality management.
TAS for developing a Tribal Implementation Plans or other CAA program under tribal law
Let EPA promulgate Federal Implementation Plans and work with EPA’s program
Delegation agreement with EPA to administer the FIP and federal requirements
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Tribal Implementation Plans under the Clean Air Act
After qualifying for TAS, tribe may develop air programs under tribal law for reservation and other areas within its jurisdiction
Tribes not bound by CAA deadlines for submitting implementation plans
Tribe may operate CAA program for one or a few requirements, or may chose to forego air quality work under CAA
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TIP BenefitsTIP Benefits
Tribe with TAS plays more active role in managing tribal air resources by exercising tribal sovereignty
TIP can be tailored to address particular concerns or broad as tribe chooses
Efforts to establish CAA program can be viewed positively by community and business by providing stable regulatory environment
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EPA 1984 Indian Policy
Until tribal governments are willing and able to assume full responsibility for delegable programs, Agency will retain responsibility for managing programs for reservations (unless state has expressed grant of jurisdiction from Congress sufficient to support delegation to the state government)
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EPA’s Direct Implementation Authority under the CAA in Indian
Country
Under EPA’s 1998 CAA TAS rule, EPA will protect air quality throughout Indian Country by directly implementing CAA's requirements under the authority of sec. 301(d)(4) where tribes have chosen not to develop or are not yetimplementing aCAA program
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Federal Implementation Plans
CAA gives EPA discretionary authority to promulgate Federal Implementation Plan (FIP) provisions as “necessary or appropriate” to protect air quality within specific areas of Indian country. 40 CFR § 49.11(a)
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EPA Program Delegation
EPA may delegate authority to tribe to help EPA administer a specific federal rule as authorized EPA representative
Delegation allows tribe building a program to gain experience by assisting EPA with implementing federal rules while deciding whether to establish tribal programs through TAS or under tribal inherent authority
Generally, EPA will have responsibility for enforcement of federal requirements
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EPA Delegation Rules
Delegation provision in the FARR (40 CFR § 49.122) allows tribes to establish agreement to administer one or more federal rules in effect on reservation
Minor NSR rule provides for delegations at 40 CFR 46.161
Major Nonattainment Rule provides for delegations at 40 CFR 49.173
Title V Rule provides for delegations at 40 CFR 71.10 Delegation not currently available to tribes for major
NSR PSD (but under consideration)
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INSPECTOR CREDENTIALS
Sec. 114(a)(2) of CAA provides “the Administrator or his authorized representative, upon presentation of his credentials, shall have a right of entry to, upon, or through any premises . . . and may at reasonable times have access to and copy any records, inspect any monitoring equipment . . . and sample any emissions which such person is required to sample.”
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Conducting Inspections as an Authorized EPA Rep.
Ensures better coverage by trained inspectors and a better enforcement by EPA
Allows quicker response to emergencies, especially in remote areas
Provides increased environmental protection Authorizes direct participation of tribe’s staff EPA must first determine that issuing an
inspector credential is appropriate
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Guidance for Issuing EPA Inspector Credentials (9/30/04)
Authorization Agreement describes appropriate oversight and controls to ensure inspections are conducted at EPA’s request or under an inspection plan
Inspection reports are submitted to EPA Basic Inspector training; Health and Safety Training with
annual refresher training; media-specific training Possible for “circuit riders” to cover multiple reservations Cross-boundary inspections as approved by EPA
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EPA/Tribal Authorization Agreement and
Yearly Work Plan Document inspector training Conditions/limits on use of credentials
When inspections may be conductedWhere inspections may be conducted
Credential security measures, including reporting of lost credentials Submit inspection reports for all inspections
conducted with EPA credentials
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Direct Implementation Tribal Cooperative Agreements
During FY2001, EPA first authorized to award Direct Implementation Tribal Cooperative Agreements (DITCA) to Indian tribes and eligible intertribal consortia
DITCAs authorize tribes to assist EPA in implementing federal environmental programs for Indian tribes in absence of acceptable tribal program, unlike grants
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Direct Implementation Tribal Cooperative Agreements
Permits EPA to to fund tribe to help EPA conduct federal direct implementation
DITCAs provide tribes with opportunities to develop capacity and have direct involvement in EPA implementation
No funds appropriated specifically for DITCAs. Funding available from either STAG or EPM appropriations (can’t mix)
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Reasons for DITCAs
Some tribes find TAS process cumbersome, risky EPA cannot use grant or cooperative agreement
mechanisms for funding tribe to help EPA directly implement federal program through delegation agreement
DITCA provides tribes with opportunities to Develop capacity Address specific tribal environmental priorities
within EPA direct implementation authority Determine scope and pace of tribal involvement Work closely with EPA staff
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Potential Air Quality Non-Regulatory Roles
Indoor AQ monitoring and other indoor work
Woodstove change-outs Outreach and education Solid waste management
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Intergovernmental Agreements
EPA’S 1984 INDIAN POLICY
6. The agency will encourage cooperation between tribal, state, and local governments to resolve environmental problems of mutual concern
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WHAT KINDS OF AGREEMENTS?
Agreement for Issuing Field Burning Permits
Tribal/fire dept. agreement on responding to open burning complaints and issuing burn permits
Other examples?
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QUESTIONS?