[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20811]
[[Page Unknown]]
[Federal Register: August 25, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 35, 49, 50 and 81
Indian Tribes: Air Quality Planning and Management; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 35, 49, 50, and 81
[OAR-FRL-5024-1]
RIN 2060-AE95
Indian Tribes: Air Quality Planning and Management
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Clean Air Act directs EPA to promulgate regulations
specifying those provisions of the Act for which it is appropriate to
treat Indian Tribes in the same manner as States. For those provisions
specified, a Tribe may develop and implement one or more of its own air
quality programs under the Act. This proposed rule sets forth the CAA
provisions for which it is appropriate to treat Indian Tribes in the
same manner as States, establishes the requirements that Indian Tribes
must meet if they choose to seek such treatment, and provides for
awards of Federal financial assistance to Tribes. EPA requests public
comments on all aspects of today's proposal.
DATES: Comments on this proposed rule must be received on or before
November 23, 1994.
ADDRESSES: Comments must be mailed (in duplicate, if possible) to the
EPA Air Docket Office (6102), Attn: Air Docket No. A-93-3087, room
M1500, 401 M St., SW., Washington, DC 20460. Copies of the comments and
supporting documents, contained in Docket No. A-93-3087, are available
for public inspection and review Monday through Friday from 8 a.m.--4
p.m., except legal holidays. Starting October 1, 1994, dockets will be
available for inspection from 8 a.m.--5:30 p.m., except legal holidays.
A reasonable charge may be assessed for photocopying of materials.
Comments and data may also be submitted electronically by any of
three different mechanisms: by sending electronic mail (e-mail) to:
[email protected]; by sending a ``Subscribe'' message to
[email protected] and once subcribed, send your
comments to RIN-2060-AE95; or through the EPA Electronic Bulletin Board
by dialing 202-488-3671, enter selection ``DMAIL,'' user name ``BB-
USER'' or 919-541-4642, enter selection ``MAIL,'' user name ``BB-
USER.'' Comments and data will also be accepted on disks in WordPerfect
in 5.1 file format or ASCII file format. All comments and data in
electronic form should be identified by the docket number A-93-3087.
Electronic comments on this proposed rule, but not the record, may be
viewed or new comments filed online at any Federal Depository Library.
Additional information on electronic submissions can be found in Part
VII of this document.
FOR FURTHER INFORMATION CONTACT: Christina Parker, Office of Air and
Radiation (6102), U.S. Environmental Protection Agency, 401 M Street,
SW., Washington, DC 20460 at (202) 260-6584.
SUPPLEMENTARY INFORMATION: This preamble is organized according to the
following outline:
I. Background of the Proposed Rule
A. Development of the Proposed Rule
1. Federal/EPA Indian Policy
2. Consultation with Tribal Representatives
B. General Structure of the CAA
C. Description of Section 301(d) of the CAA
II. Jurisdictional Issues
A. Delegation or Grant of CAA Authority to Tribes
B. Federal Authority and Protection of Tribal Air Resources
C. Objective of Tribal Primacy and Self-Determination
III. Tribal CAA Programs
A. New Process for Determining Eligibility for CAA Programs
1. Federally Recognized Tribe
2. Substantial Governmental Duties and Powers
3. Jurisdiction Requirement
4. Capability Requirement
5. Tribal Consortia
B. Provisions for which Tribal Implementation is Appropriate
1. Tribal Implementation is Generally Appropriate
2. Exceptions to Tribal Implementation
a. National Ambient Air Quality Standards Applicable
Implementation Plan Submittal Deadlines and Related Sanctions
b. Visibility Implementation Plan Submittal Deadlines
c. Interstate Air Pollution and Visibility Transport Commission
Plan Submittal Deadlines
d. Criminal Enforcement
e. Title V Operating Permit Program Submittal Deadlines,
Implementation Deadlines and Other Requirements
f. Small Business Assistance Program Submittal Deadline and
Compliance Advisory Panel Requirement
3. Stringency of Tribal Regulations
4. Provisions for which No Separate Tribal Program Required
C. Procedures for Review of Tribal Air Programs
1. Modular Approach to Tribal Air Programs
2. Procedures for Reviewing and Approving Tribal Implementation
Plans (``TIPs'')
3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')
D. Revisions to CAA Implementing Regulations
1. 40 CFR Part 35--State[, Tribal] and Local Assistance
2. 40 CFR Part 49--Tribal Clean Air Act Authority
3. 40 CFR Part 50--National Primary and Secondary Ambient Air
Quality Standards
4. 40 CFR Part 51--Requirements for Preparation, Adoption, and
Submittal of Implementation Plans
5. 40 CFR Part 52--Approval and Promulgation of Implementation
Plans
6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs
7. 40 CFR Part 81--Designation of Areas for Air Quality Planning
Purposes
IV. Federal Financial Assistance
A. Sources of Funding Assistance
B. Tribal Eligibility for Air Grant Assistance
1. Section 103 Air Assessment Grants
2. Section 105 Air Program Grants
3. Tribal Agencies and Consortia
C. Use of EPA General Assistance Grants
D. Additional Administrative Requirements
V. Miscellaneous
A. Executive Order (EO) 12866
B. Regulatory Flexibility Act (RFA)
C. Executive Order (EO) 12875
D. Paperwork Reduction Act
VI. Request for Public Comments
VII. Electronic Filing of Comments
Addendum A: General Description of Clean Air Act Programs
Addendum B: List of EPA Regional Offices
I. Background of the Proposed Rule
A. Development of the Proposed Rule
This notice describes proposed regulatory changes to implement
section 301(d) of the Clean Air Act, as amended, 42 U.S.C. 7401, et
seq. (the ``Act'' or ``CAA''). Section 301(d) requires EPA to
promulgate regulations that provide for Indian Tribes, if they so
choose, to assume responsibility for the development and implementation
of CAA programs on lands within the exterior boundaries of their
reservations or other areas within their jurisdiction. This Tribal
authority will apply to all CAA programs which the EPA Administrator
determines to be appropriate in taking final action on this proposal.
An Indian Tribe that takes responsibility for a CAA program under this
rule would essentially be treated in the same way as a State would be
treated for that program, with any exceptions noted in this rule and
discussed below in this preamble.
1. Federal/EPA Indian Policy
In developing this proposed rule, EPA has acted on the principles
expressed in existing Federal policy statements regarding Indian
Tribes. On January 24, 1983, the President issued a Federal Indian
Policy stressing two related themes: (1) that the Federal government
will pursue the principle of Indian ``self-government'' and (2) that it
will work directly with Tribal governments on a ``government-to-
government'' basis. Presidential support was reaffirmed in an April 1,
1993 statement.
On November 8, 1984, in response to the 1983 Federal statement, EPA
adopted a policy statement and implementing guidance addressing the
administration of EPA environmental programs on Indian reservations.
EPA's policy is ``to give special consideration to Tribal interests in
making Agency policy, and to ensure the close involvement of Tribal
Governments in making decisions and managing environmental programs
affecting reservation lands.'' EPA committed to pursue certain
principles to meet this objective, including the following:
EPA recognizes Tribal Governments as sovereign entities with
primary authority and responsibility for the reservation populace.
Accordingly, EPA will work directly with Tribal Governments as the
independent authority for reservation affairs, and not as political
subdivisions of States or other governmental units.
* * * * *
In keeping with the principle of Indian self-government, the
Agency will view Tribal Governments as the appropriate non-Federal
parties for making decisions and carrying out program
responsibilities affecting Indian reservations, their environments,
and the health and welfare of the reservation populace. Just as
EPA's deliberations and activities have traditionally involved the
interests and/or participation of State Governments, EPA will look
directly to Tribal Governments to play this lead role for matters
affecting reservation environments.
See November 8, 1984 ``EPA Policy for the Administration of
Environmental Programs on Indian Reservations'' at p. 2. EPA
Administrator Carol M. Browner reaffirmed the 1984 policy in a
Memorandum issued on March 14, 1994.
2. Consultation With Tribal Representatives
In addition, EPA has consulted with Tribal representatives in
developing this proposed rule. EPA discussed preliminary issues
associated with the proposed rule at the ``First National Tribal
Conference on Environmental Management'' held in Cherokee, North
Carolina in May 1992 and the ``Second National Tribal Conference on
Environmental Management'' in Cherokee held in May 1994.
In the Fall of 1992, EPA met with Tribal representatives at three
outreach meetings in Chicago, Denver and San Francisco. These meetings
included a discussion of issues raised by this proposed rule as well as
EPA's efforts to assist Tribes in obtaining training in air quality
management. Overall, representatives of approximately 70 different
Tribes attended. In September 1993, EPA discussed a draft of this
proposed rule with representatives of approximately 40 Tribes at a
seminar sponsored by EPA and the Office of Native American Programs at
Northern Arizona University and a subsequent meeting with
representatives of State and local governments sponsored by the State
and Territorial Air Pollution Program Administrators/Association of
Local Air Pollution Control Officials. EPA has also consulted with
Tribal and State representatives periodically throughout the
development of the proposed rule.
EPA received comments both during and following the Tribal and
State outreach meetings. EPA has considered these comments in
developing today's proposed rule. To the extent any such commenters
have concerns that have not been adequately addressed by today's
proposal, they should submit formal written comments to EPA in response
to today's action. Any such comments must be received by the deadline
indicated at the outset of today's notice and submitted to the EPA
address specified above.
B. General Structure of the CAA
In order to fully understand this proposal, a basic understanding
of the structure of the CAA and its division of responsibilities
between EPA and the States is necessary. Such a description is set
forth below. In addition, a brief description of some of the many
programs contained in the CAA is set forth in Addendum A, as an
introduction and guidance to Tribes wishing to develop their own CAA
programs. Reading Addendum A in conjunction with today's proposed
action will also facilitate the reader's understanding of the
discussion that follows.
The CAA is implemented in two basic ways. The principal method is
through a cooperative partnership between the States and EPA. While
this partnership can take several shapes, generally EPA issues national
standards or Federal requirements and the States assume primary
responsibility for implementing these requirements. However, as a
prerequisite to assuming implementation responsibility, States must
submit their programs to EPA and must demonstrate that their programs
meet minimum Federal CAA requirements. Among these requirements is the
mandate that States demonstrate that they have adequate legal authority
and resources to implement the programs.
If a State program is approved or if the authority to implement a
Federal program is delegated to a State, EPA maintains an ongoing
oversight role to ensure that the program is adequately enforced and
implemented and to provide technical and policy assistance. An
important aspect of EPA's oversight role is that EPA retains legal
authority to bring an enforcement action against a source violating a
CAA program implemented by the States. Thus, if a State fails to
adequately enforce CAA requirements, EPA can step in and ensure that
they are followed.
An example of this cooperative Federal/State arrangement is
provided by Title V of the Act, 42 U.S.C. 7661-7661e, which contains
requirements for an operating permit program. Generally, the program
requires that certain sources of air pollution obtain permits which
contain all of the requirements under the Act applicable to such
sources. EPA has issued rules specifying the minimum requirements for
State permit programs. 57 FR 32250 (July 21, 1992). States are required
to develop programs consistent with minimum Federal requirements and to
submit those programs to EPA for approval. In those instances when
State programs are approved by EPA, the approved States will be
primarily responsible for implementing these provisions of the CAA. EPA
will maintain an active oversight role to provide necessary assistance
and to ensure that the EPA-approved State programs continue to be
implemented consistent with minimum Federal requirements.
In the second, less common form of CAA implementation, EPA is
primarily responsible both for setting standards or interpreting the
requirements of the Act and for implementing the Federal requirements
that are established. Under this approach, the Act provides little
formal role for States.1 In general, this approach is reserved for
programs requiring a high degree of uniformity in their implementation.
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\1\ States nevertheless often actively participate in federal
rulemakings and policy development even if the CAA does not call for
primary implementation by the States. EPA similarly encourages
Tribes to participate actively in EPA's rulemakings and policy
development.
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Title VI of the Act, which provides for the phase-out of certain
substances that deplete stratospheric ozone, is one such program, since
it affects products sold throughout interstate commerce. 42 U.S.C.
7671-7671q. Title VI is both a Federally established and Federally
managed program. EPA is charged with issuing the rules to implement the
phase-out. Through, for example, reporting requirements and
enforcement, EPA also ensures that the restrictions in production and
consumption of ozone-depleting substances that are called for by the
Act are, in fact, met.
Section 301(d)(2) of the Act authorizes EPA to issue regulations
specifying those provisions of the Act ``for which it is appropriate to
treat Indian tribes as States.'' 42 U.S.C. section 7601(d)(2). Thus,
the CAA programs where States have a formal implementation role will be
the programs that are directly affected by today's proposed action.
Conversely, those programs that are established and implemented
primarily by EPA will largely be unaffected by today's proposal.
C. Description of Section 301(d) of the CAA
Section 301(d)(1) of the CAA authorizes EPA to ``treat Indian
tribes as States'' under the Act, so that Tribes may develop and
implement CAA programs in the same manner as States within Tribal
reservations or in other areas subject to Tribal jurisdiction.2
For a Tribe to be eligible for such treatment it must be Federally
recognized (see section 302(r)) and must meet the three criteria set
forth in section 301(d)(2)(A)-(C). Briefly, these criteria consist of:
(1) a showing of an adequate governing body; (2) that is capable of
implementing the particular requirements of the CAA and applicable
regulations for which the Tribe is seeking program approval; and (3)
within the exterior boundaries of the reservation or other areas within
the Tribe's jurisdiction. The precise criteria are set forth in today's
proposed rule and are described in detail in Part III.A. below,
together with EPA's proposal as to how this eligibility determination
should be made.
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\2\ For convenience of expression, portions of this rule refer
only to Tribal programs within reservations. However, these
references should not be interpreted to limit Tribal programs solely
to lands within reservation boundaries since the CAA acknowledges
that tribes may possess authority over off-reservation lands.'' See
Part II.A, below.
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At the same time, the Act recognizes that it may not be appropriate
or feasible in all instances to treat Tribes and States identically.
Accordingly, EPA is required under section 301(d)(2) of the Act to
promulgate regulations ``specifying those provisions of [the CAA] for
which it is appropriate to treat Indian tribes as States.'' Tribes that
satisfy the criteria discussed above are eligible to implement those
provisions specified by EPA if the minimum Federal requirements set out
in the provisions have been met. In general, EPA is proposing that
Tribes be eligible to implement the same provisions as States, with
some exceptions, as set forth in today's proposed rule and discussed in
Part III.B. below.
In addition, section 301(d)(3) of the Act gives EPA the discretion
to promulgate regulations establishing the elements of Tribal
implementation plans (``TIPs'') and procedures for approval or
disapproval of those plans or portions thereof. See Addendum A, ``Title
I'' discussion. These regulations would be implemented in conjunction
with section 110(o) of the Act, which provides that any TIP that is
submitted to EPA under section 301(d) shall be reviewed in accordance
with the provisions for review of State implementation plans (``SIPs'')
set out in section 110, except as otherwise provided by this
regulation. Once effective, the TIP would be applicable to all areas
located within the exterior boundaries of the reservation. See section
110(o). In today's action, EPA is proposing TIP regulations and
procedures, as well as procedures for the review of other Tribal air
programs (``TAPs''). These procedures are discussed further in Part
III.C. below.
Finally, section 301(d) of the Act makes provision for EPA to
furnish grant and contract assistance to Tribes. See section 301(d)(1),
(5) of the CAA. The grant provisions proposed today are described in
Part IV of this preamble.
II. Jurisdictional Issues
A. Delegation or Grant of CAA Authority to Tribes
It is a settled point of law that Congress may, by statute,
expressly delegate Federal authority to a Tribe. United States v.
Mazurie, 419 U.S. 544, 554 (1975). See also South Dakota v. Bourland,
113 S. Ct. 2309, 2319-20 (1993); Brendale v. Confederated Tribes and
Bands of the Yakima Indian Nation, 492 U.S. 408, 426-28 (1989) (White,
J., for four Justice plurality). Such a delegation or grant of
authority can provide a Federal statutory source of Tribal authority
over designated areas, whether or not the Tribe's inherent authority
would extend to all such areas. It is EPA's proposed interpretation of
the CAA that the Act grants, to Tribes approved by EPA to administer
CAA programs in the same manner as States, authority over all air
resources within the exterior boundaries of a reservation for such
programs. This grant of authority by Congress would enable such Tribes
to address conduct on all lands, including non-Indian owned fee lands,
within the exterior boundaries of a reservation. Thus, this proposed
interpretation relates to the potential scope of regulatory
jurisdiction that may be exercised by eligible Tribes under EPA-
approved Tribal Clean Air Act programs (hereafter ``approved''
Tribes).3
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\3\ As indicated in Part III.B.4, in some instances qualifying
Tribes may have a role in CAA implementation without having to make
an entire program submittal.
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The Agency recognizes that a Tribe will generally have inherent
sovereign authority over air resources within the exterior boundaries
of its reservation. As stated in Mazurie, the sovereign authority of
Indian Tribes extends ``over both their members and their territory.''
419 U.S. at 557. Thus, Tribes generally have extensive authority to
regulate activities on lands that are held by the United States in
trust for the Tribe. See Montana v. United States, 450 U.S. 544, 557
(1981). Furthermore, a Tribe ``may * * * retain inherent power to
exercise civil authority over the conduct of non-Indians on fee lands
within its reservation when that conduct threatens or has some direct
effect on the * * * health or welfare of the tribe.'' Montana, 450 U.S.
at 566. However, a Tribe's inherent authority must be determined on a
case-by-case basis, considering whether the conduct being regulated has
a direct effect on the health or welfare of the Tribe substantial
enough to support the Tribe's jurisdiction over non-Indians. See
Brendale, 492 U.S. 408; see also 56 FR 64876 at 64877-64879 (Dec. 12,
1991).4 Such a determination is not necessary with a direct grant
of statutory authority.5
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\4\ In proposing to interpret the CAA as granting approved
Tribes authority over all air resources within the exterior
boundaries of a reservation, EPA recognizes that its approach under
some of the other statutes it administers relies on a Tribe's
inherent authority.
\5\ Even without this proposed direct grant of authority, Indian
Tribes would very likely have inherent authority over all activities
within reservation boundaries that are subject to CAA regulation.
The high mobility of air pollutants, resulting area-wide effects,
and the seriousness of such impacts, would all tend to support
Tribal inherent authority; as noted below, these factors also
underscore the desirability of cohesive air quality management of
all air pollution sources within reservation boundaries including
those air pollution-related activities on fee lands within
reservation boundaries. See, e.g., Bourland, 113 S. Ct. at 2320
(reaffirming the Montana ``exceptions to `the general proposition
that the inherent sovereign powers of an Indian tribe do not extend
to the activities of nonmembers of the tribe''') (citation omitted)
(1993); see also, e.g., CAA section 101(a)(2), 42 U.S.C. section
7401(a)(2); H.R. Rep. No. 490, 101st Cong., 2d Sess. (1990); S. Rep.
No. 228, 101st Cong., 1st Sess. (1989).
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EPA's proposed position that the CAA constitutes a statutory grant
of jurisdictional authority to Tribes is consistent with the language
of the Act, which authorizes EPA to treat a Tribe as a State for the
regulation of ``air resources within the exterior boundaries of the
reservation or other areas within the tribe's jurisdiction.''6
Section 301(d)(2)(B) (emphasis added). EPA believes that this statutory
provision, viewed within the overall framework of the CAA, reflects a
territorial view of Tribal jurisdiction and authorizes a Tribal role
for all air resources within the exterior boundaries of Indian
reservations without distinguishing among various categories of on-
reservation land. EPA believes a territorial approach to air quality
regulation best advances rational, sound air quality management. Air
pollutants disperse over areas several and sometimes even hundreds of
miles from their source of origin, as dictated by the physical and
chemical properties of the pollutants at issue and the prevailing winds
and other meteorological conditions. The high mobility of air
pollutants, resulting areawide effects and the seriousness of such
impacts, underscores the undesirability of fragmented air quality
management within reservations.
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\6\ As indicated above, EPA interprets the second clause of this
provision as meaning that Tribes may also assert jurisdiction over
air resources that are not within the boundaries of their
reservations. However, EPA has not interpreted this clause as a
direct grant of jurisdictional authority to Tribes with respect to
such off-reservation air resources. Rather, where a Tribe submits a
program asserting jurisdiction over air resources outside the
boundaries of a reservation, EPA will require a demonstration of the
factual and legal basis for the Tribe's inherent authority over such
resources, consistent with relevant principles of Federal Indian
law.
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Moreover, language contained in two other provisions of the CAA,
which expressly recognizes Tribal authority over all areas within the
exterior boundaries of the reservation provides particularly compelling
evidence that Congress intended to adopt this territorial approach. One
such provision is in the CAA program governing the amount of
incremental air quality deterioration allowed in ``clean air'' areas.
Section 164(c) of the CAA provides that ``[l]ands within the exterior
boundaries of reservations of federally recognized Indian Tribes may be
redesignated [with regard to the prevention of significant
deterioration of air quality] only by the appropriate Indian governing
body.''
In addition, section 110(o) of the CAA provides that upon approval
by EPA, Tribal Implementation Plans (TIPs) ``shall become applicable to
all areas * * * located within the exterior boundaries of the
reservation, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation.'' Section 110(o) of the
Act recognizes that approved Tribes will exercise authority over all
areas within the exterior boundaries of a reservation for purposes of
TIPs. TIPs, in turn, are the administrative tools for implementing the
requirements under Title I of the CAA necessary to assure attainment
and maintenance of the national ambient air quality standards (NAAQS),
one of the central CAA programs. Significant regulatory entanglement
and inefficiencies could result if Tribes have jurisdiction over such
plans pursuant to section 110(o) of the Act, but are not found to have
jurisdiction within reservation boundaries over non-TIP CAA programs.
For example, a stationary source located on an area of a reservation
over which the Tribe was found to lack inherent authority would be
subject to the Tribal Implementation Plan provisions imposing NAAQS-
related requirements, but might be determined to be subject to State
regulation for some other CAA program. This entanglement could
potentially subject a source to differing local regulatory authorities,
possibly with conflicting goals and approaches, and potentially
duplicative or inconsistent reporting, monitoring and other regulatory
requirements. There is no evidence that Congress intended to create
such complex jurisdictional entanglements. These entanglements are
reasonably avoided by interpreting the CAA as granting to approved
Tribes regulatory authority over all air resources within a
reservation.
Further, a grant of authority to Tribes for NAAQS-related purposes
alone would conflict with the implementation of the operating permit
program called for by Title V of the Act. Title V explicitly prohibits
partial State permit programs unless, at a minimum, such a program
``ensures compliance with * * * [a]ll requirements of [Title] I * * *
applicable to sources required to have a permit.'' Section 502(f)
(emphasis added); see also section 502(b)(5)(A) (requires permitting
authorities ``to have adequate authority to * * * assure compliance by
sources required to have a permit under this title with each applicable
standard, regulation, or requirement under this Act'') (emphasis added)
and section 504(a) (each permit issued under Title V ``shall include *
* * conditions as are necessary to assure compliance with the
applicable requirements of this [Act], including the requirements of
the applicable implementation plan''). Since States could not
unilaterally ``ensure compliance with * * * [a]ll requirements of
[Title] I'' within Indian reservations because Tribes are granted
authority over implementation plans under section 110(o), it appears
that States could not, in fact, submit Title V permit programs for
Indian reservations that would conform with section 502(f) or other
provisions of Title V.
A basic rule of statutory construction is to avoid interpreting a
statute in a manner that would nullify or render meaningless a
statutory provision.7 Because section 110(o) confers on approved
Tribes the authority to administer Title I programs on Indian
reservations, the provision of Title V requiring that a permit program
must at a minimum ensure compliance with the applicable requirements of
Title I cannot be met by States seeking authority to implement a Title
V program within the boundaries of a reservation. These provisions can
reasonably be harmonized by construing the Act as generally granting
approved Tribes CAA regulatory authority over all air resources within
the exterior boundaries of their reservations. Thus, this statutory
structure further supports EPA's proposed interpretation of the CAA as
granting approved Tribes authority within reservation boundaries.
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\7\See U.S. v. Nordic Village, Inc., 112 S.Ct. 1011, 1015 (1992)
(rejecting an interpretation that ``violates the settled rule that a
statute must, if possible, be construed in a fashion that every word
has some operative effect'') (citation omitted); Boise Cascade Corp.
v. U.S. EPA, 942 F.2d 1427, 1432 (9th Cir. 1992) (``[u]nder accepted
canons of statutory interpretation, we must interpret statutes as a
whole, giving effect to each word and making every effort not to
interpret a provision in a manner that renders other provisions of
the same statute inconsistent, meaningless or superfluous'')
(citations omitted).
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Accordingly, in light of the statutory language and the overall
statutory scheme8, EPA proposes to exercise the rulemaking
authority entrusted to it by Congress to conclude that the CAA grants
approved Tribes authority over all air resources within the exterior
boundaries of a reservation. See generally Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837, 842-45 (1984).9
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\8\This proposed interpretation of the CAA as generally
delegating jurisdictional authority to approved Tribes is also
supported by the legislative history, which provides some additional
evidence of Congressional attention to this issue: ``the Act
constitutes an express delegation of power to Indian tribes to
administer and enforce the Clean Air Act in Indian lands'' (citation
to Brendale omitted). S. Rep. No. 228, 101st Cong., 1st Sess. 79
(1989).
\9\Further, it is a well-established principle of statutory
construction that statutes should be construed liberally in favor of
Indians, with ambiguous provisions interpreted in ways that benefit
tribes. See County of Yakima v. Confederated Tribes and Bands of the
Yakima Indian Nation, 112 S.Ct. 683, 693 (1992). In addition,
statutes should be interpreted so as to comport with tribal
sovereignty and the federal policy of encouraging tribal
independence. See Ramah Navajo School Board, Inc. v. Bureau of
Revenue of New Mexico, 458 U.S. 832, 846 (1982).
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Based on recent Supreme Court case law, EPA has construed the term
``reservation'' to incorporate trust land that has been validly set
apart for use by a Tribe, even though that land has not been formally
designated as a ``reservation.'' See 56 FR at 64,881 (Dec. 12, 1991);
see also Oklahoma Tax Commission v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). EPA will be guided by
relevant case law in interpreting the scope of ``reservation'' under
the CAA.
Section 301(d)(2)(B) of the CAA also provides that a Tribe may be
treated in the same manner as a State for functions regarding air
resources ``within the exterior boundaries of the reservation or other
areas within the tribe's jurisdiction'' (emphasis added). The
emphasized language envisions potential Tribal jurisdiction under the
CAA over areas that lie outside the exterior boundaries of a
reservation, upon a fact-based showing of a Tribe's inherent authority
over sources located on such lands. Thus, this provision authorizes an
eligible Tribe to develop and implement Tribal air quality programs on
off-reservation lands that are determined to be within the Tribe's
inherent jurisdiction. Accordingly, for purposes of this rule, EPA
proposes to conclude that an eligible Tribe may be able to implement
its air quality programs on off-reservation lands up to the limits of
``Indian country,'' as defined in 18 U.S.C. section 1151, provided the
Tribe can adequately demonstrate authority to regulate air quality on
the off-reservation lands in question under general principles of
Indian law.
In sum, EPA is proposing to interpret the CAA as granting approved
Tribes regulatory authority over all air resources within the exterior
boundaries of their reservations. Thus, no independent fact-based
showing of inherent Tribal jurisdiction will be required for air
resources located within such reservation boundaries. EPA recognizes
that ``other'' off-reservation areas may fall within Tribal
jurisdiction. EPA is proposing to interpret the CAA as providing no
blanket grant of Federal authority for such areas. Thus, for off-
reservation areas, a Tribe must demonstrate that it has inherent
authority over sources it seeks to regulate under general principles of
Indian law.
B. Federal Authority and Protection of Tribal Air Resources
The CAA authorizes EPA to protect air quality throughout Indian
country. EPA intends to use this authority to remedy and prevent gaps
in CAA protection for Tribal air resources. EPA's authority to provide
this CAA protection is based in part on the general purpose of the Act,
which is national in scope. As stated in section 101(b)(1) of the Act,
Congress intended to ``protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and the
productive capacity of its population'' (emphasis added). It seems
clear that Congress intended for the CAA to be a ``general statute
applying to all persons to include Indians and their property
interests.'' Phillips Petroleum Co. v. United States E.P.A., 803 F.2d
545, 556 (10th Cir. 1986) (holding that the Safe Drinking Water Act
applied to Indian Tribes and lands by virtue of being a nationally
applicable statute; see generally id. at 553-58).
Section 301(a) of the Act delegates to EPA broad authority to issue
such regulations as are necessary to carry out the functions of the
Act. Further, several provisions of the Act call for Federal issuance
of a program where, for example, a State fails to adopt a program,
adopts an inadequate program or fails to adequately implement a
required program. E.g., sections 110(c) and 502 (d), (e), (i) of the
Act. It follows that Congress intended that EPA would similarly have
broad legal authority in instances when Tribes choose not to develop a
program, fail to adopt an adequate program or fail to adequately
implement an air program authorized under section 301(d). In addition,
section 301(d)(4) of the CAA empowers the Administrator to directly
administer CAA requirements so as to achieve the appropriate purpose,
where Tribal implementation of CAA requirements is inappropriate or
administratively infeasible. These provisions evince Congressional
intent to authorize EPA to directly implement CAA programs where Tribes
fail to submit approvable programs or lack authority to do so.
In fact, EPA is currently providing Federal support for CAA
protection within reservations. For example, EPA administers the permit
program governing review of proposed new and modified major stationary
sources of air pollution (``new source review'' or ``NSR'') on
Reservations and other areas in Indian country (hereafter ``Tribal
lands''). There are several reasons for this emphasis in the exercise
of EPA's authority.
Many Tribal lands have air quality that presently meets the
national ambient air quality standards (``NAAQS''), and the central
concern is to prevent the relatively clean air from significantly
deteriorating. Thus, EPA has ensured that major sources seeking to
locate on Tribal lands obtain the Prevention of Significant
Deterioration (``PSD'') permit required under the CAA's NSR program. In
broad overview, this program imposes limitations on the ambient air
quality impact of new or modified major stationary sources and requires
the application of best available control technology on such sources.
See section 165 of the Act. Similarly, in those circumstances where the
air quality on Tribal lands currently is worse than the NAAQS, EPA's
administration of the nonattainment NSR program prevents the air
quality from further deteriorating by ensuring that a proposed major
source implements the most stringent control technology (the ``lowest
achievable emission rate'' as defined in section 171(3)) and offsets
its emissions by obtaining emissions reductions from nearby sources.
Section 173 of the Act.
Owners and operators that construct air pollution sources on Tribal
lands without first obtaining the proper permit from EPA expose
themselves to Federal enforcement action and citizen suits. For
example, section 165 of the Act, 42 U.S.C. 7475, prohibits the
construction of a major emitting facility that does not have a PSD
permit. Section 173, 42 U.S.C. 7503, contains a similar requirement for
new and modified major stationary sources in nonattainment areas.
Sections 113 and 167, 42 U.S.C. 7413 & 7467, authorize EPA to take
enforcement action (including, in certain instances, criminal action)
against an owner or operator that is in violation of the requirement to
obtain a preconstruction permit that meets the requirements of the Act.
Furthermore, section 304 of the Act, 42 U.S.C. 7604, authorizes any
person to bring a ``citizen suit'' in U.S. district court against an
owner or operator who constructs any new or modified major stationary
source without a PSD permit or nonattainment NSR permit that meets the
Act's requirements.
EPA also currently provides technical and financial support to
Tribes that have initiated the process of developing Tribal air
programs. For example, some EPA Regional Offices are currently
providing such assistance to Tribes that have air quality that is worse
than the NAAQS. The objective is to assist the Tribes in developing a
strategy for controlling emissions from existing sources that will
bring the area back into attainment with the NAAQS. Because EPA has not
finalized today's rule authorizing Tribes to submit Federal CAA
programs to EPA for approval, some EPA Regions are now working with
Tribes to develop programs that will be promulgated and administered by
EPA until this rule is finalized and a Tribal program is
approved.10 Where air quality problems have already been
identified, it is EPA's policy to proceed expeditiously, in conjunction
with Tribes, to address such problems.
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\1\0Such an interim EPA-administered program would be displaced
upon EPA's approval of a Tribal program addressing the same CAA
requirements.
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In addition, as described in Part I.B, there are some programs that
are solely Federal programs (e.g. Phase I of the Acid Rain Program and
Title VI of the Act, which provides for the phase-out of certain
substances that deplete stratospheric ozone). Such programs apply to
sources located on Tribal lands in the same manner as sources on lands
subject to State jurisdiction.
EPA views these efforts as an important and substantial first step
in providing CAA protection of reservation air resources.
EPA also intends to develop an implementation strategy for
achieving Federal CAA protection of air resources within Indian
reservations. The strategy will be designed to prioritize EPA resources
in support of this rule. It is EPA's policy to assist Tribes in
developing comprehensive and effective air quality management programs
to insure that Tribal air quality management programs will be
implemented to the extent necessary on Indian reservations. EPA will do
this by, among other things, providing technical advice and assistance
to Indian Tribes on air quality issues. EPA intends to consult with
Tribes to identify their particular needs for air program development
assistance and to provide on-going assistance as necessary.
However, as it required many years to develop State and Federal
programs to cover lands subject to State jurisdiction, so it will
require time to develop Tribal and Federal programs to cover
reservations and other lands subject to Tribal jurisdiction. As a first
step in this process, EPA intends to draft a Plan for Reservation Air
Program Implementation that will provide a strategy for developing
reservation programs in accordance with this policy. The Plan will
identify priority needs and include a strategy to address them by
providing technical and grant assistance for the development of air
quality management programs. EPA will seek appropriate input from
Tribal governments in developing the Plan.
C. Objective of Tribal Primacy and Self-Determination
Ultimately, of course, EPA would prefer to work with Tribes to have
the Tribes develop and administer their own air quality management
programs under the CAA, just as EPA works with States. This is the
principal objective of the Federal financial assistance described in
Part IV below.
While some Tribes may entirely develop their own CAA programs,
other Tribes may consider forming Tribal consortia. Smaller Tribes in
particular may wish to form consortia or create inter-Tribal agencies
as ways to develop the necessary expertise to administer CAA programs
in a cost-effective way. One of the advantages of forming a consortium
of Tribes is that a Tribe may rely on the expertise and resources of
the consortium in demonstrating that the Tribe is reasonably expected
to be capable of carrying out the functions to be exercised, as
described below.
Today's action also does not require Tribes to develop CAA programs
wholly from scratch. For example, a Tribe may adopt or incorporate
standards from an adjacent or similarly situated State, with
appropriate revisions that would adapt the State standards to
reservation conditions and Tribal policies. The use of such adaptations
would enable Tribes to build on State experience and expertise, and
might represent quicker and less costly ways to establish Tribal
programs than developing Tribal programs independently. This technique
of utilizing small-scaled adaptations of State programs would allow
Tribes to build experience and expertise that could later be used to
revise existing programs, if appropriate.
Tribes could also choose to negotiate a cooperative agreement with
an adjoining State to jointly plan and administer CAA programs that are
appropriately tailored to individual reservation conditions and Tribal
policies. Such an agreement would be subject to the review and approval
of the Administrator or her delegatee, if it is to be made part of an
approvable Tribal air program under the CAA.
Aside from any formal arrangements between Tribes and States, EPA
notes that the objective of this rule, and EPA's responsibility in
overseeing the administration of the CAA, is to provide air quality
protection. Therefore, EPA encourages all affected sovereigns to work
cooperatively in informal capacities to protect the public health and
welfare from the serious health and welfare effects associated with air
pollution.
III. Tribal CAA Programs
The discussion which follows addresses streamlined procedures that
EPA is proposing to satisfy the eligibility requirements set out in
section 301(d)(2) of the Act. These are proposed requirements that
Tribes must meet in order to obtain approval to implement CAA programs.
The discussion also identifies those provisions of the Act for which
EPA is proposing to treat Indian Tribes in the same manner as States
and those provisions for which EPA believes such treatment is
infeasible or otherwise inappropriate.
One of EPA's central concerns is to encourage Tribes to develop and
administer Clean Air Act programs on Tribal lands in the same way that
States currently do on State lands. This concern is grounded in the
objective of Tribal self-government as enunciated in both the Federal
and the EPA Indian Policies. In order to facilitate this process, EPA
is proposing to eliminate duplicative review and unnecessary delay
during EPA's processing of Tribal program submittals. The eligibility
determination process proposed in today's action is consistent with an
EPA policy pronouncement that followed from EPA's review of the Tribal
programs it administers under other environmental statutes. Further,
EPA is proposing to accept ``reasonably severable'' Tribal air program
submittals that meet the applicable requirements of the CAA. This will
allow Tribes to identify and then immediately target their most
important air quality issues without the corresponding burden of
developing entire CAA programs. Further, it allows Tribes to develop
incremental expertise that will facilitate development and expansion of
further programs over time.
A. New Process for Determining Eligibility for CAA Programs
To be eligible to be treated in the same manner as a State for CAA
programs, including financial assistance, an applicant must meet the
definition of ``tribe'' in section 302(r) of the Act (i.e. it must be
Federally recognized) and must satisfy the three criteria set forth in
section 301(d)(2)(A)-(C) of the Act. These criteria are set out in
today's proposed rule and concern the Tribe's governing body, its
jurisdiction, and its capability to carry out the necessary functions
under the Act.
In general these same criteria are set forth under the Clean Water
Act and the Safe Drinking Water Act. EPA has previously issued
regulations implementing the criteria under those Acts. These
regulations have come to be known as the ``treatment as a state''
(``TAS'') process.11 Approval under this process was required
every time a Tribe sought to obtain an EPA grant or implement an EPA
program on its reservation.
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\1\1EPA recognizes that Tribes are sovereign nations with a
unique legal status and a relationship to the Federal government
that is significantly different from that of States. EPA believes
that Congress did not intend to alter this when it authorized
treatment of Tribes ``as States'' under the CAA. Rather, Congress
intends to ensure that, to the extent appropriate and feasible,
Tribes may assume a role in implementing the CAA on Tribal lands
that is comparable to the role States have in implementing the CAA
on State lands.
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Because the ``TAS'' process proved to be quite burdensome to
Tribes, EPA formed a working group to focus on ways of improving and
simplifying the process. After considering the workgroup's
recommendations, EPA announced a policy that is intended to streamline
and simplify the process. Memorandum from F. Henry Habicht, the Deputy
Administrator of EPA, to the Agency, dated November 10, 1992. EPA is
proposing to implement this new policy in this rulemaking, and is
calling the resulting new process the ``eligibility'' process. See also
56 FR 1380 (March 23, 1994) (proposing similar revision to Tribal
approval process in Clean Water Act and Safe Drinking Water Act
regulations).
Under the new eligibility process proposed in today's action, a
Tribe does not need to go through a separate eligibility review every
time it seeks approval for grant funding or to implement a specific
program. Instead, a Tribe's eligibility may be determined at the same
time that it seeks approval for a particular program. By making the
eligibility determination a part of the program approval process, much
of the delay and duplication inherent in the old sequential TAS process
should be reduced, if not eliminated. In addition, EPA is proposing to
simplify some of the demonstrations of eligibility that will be
required under the Clean Air Act, as discussed below. Finally, after
promulgation of this rule, EPA intends to facilitate development of
Tribal applications by providing Tribes with a narrative checklist of
the eligibility requirements described below.
1. Federally Recognized Tribe
A Tribe is defined in section 302(r) of the Act as follows:
[A]ny Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
The requirement of Federal recognition is common to all statutes
authorizing EPA to treat Tribes in a manner similar to that in which it
treats States. Any Tribe that has been approved for ``TAS'' under any
of the existing Water Act regulations or any other EPA program is
Federally recognized. Moreover, once a Tribe has been found to be
Federally recognized in the course of approval under any EPA-
administered statute, or any provision of the CAA, it need only so
state in the future. To facilitate review of Tribal applications, EPA
therefore requests that Tribal applications inform EPA whether the
Tribe has been approved for ``TAS'' under the old process or deemed
eligible to receive funding or authorization for any EPA-administered
environmental program under the revised process governing treatment of
Tribes in the same manner as States.
Any other Tribe need only state that it appears on the list of
Federally recognized Tribes that the Secretary of the Interior
periodically publishes in the Federal Register. See 58 FR 54364 (Oct.
21, 1993). If the Tribe notifies EPA that it has been recognized but is
not included on this list because the list has not been updated, EPA
will verify the fact of recognition with the Department of the Interior
(``DOI'').
2. Substantial Governmental Duties and Powers
A Tribe also must show that it ``has a governing body carrying out
substantial governmental duties and powers.'' This requirement is also
found in the Federal Water Pollution Control Act (``Clean Water Act'')
and the Public Health Service Act (``Safe Drinking Water Act''). See 33
U.S.C. 1377(e) & 42 U.S.C. section 300j-11(b). Accordingly, as
discussed above, a Tribe that has had a submittal approved by EPA under
either of these provisions has already established that it meets the
governmental requirement and need not make this showing again.
Similarly, a Tribe that has made this showing in the course of
obtaining approval for a Clean Air Act program need not do so again. In
either case, a Tribe may simply state that it has already been
approved.
A Tribe that has not yet made its initial showing of ``substantial
governmental duties and powers'' can do so by demonstrating that it has
a governing body that is presently carrying out substantial
governmental functions. A Tribe will be able to make the required
demonstration if it is currently performing governmental functions to
promote the public health, safety, and welfare of its population within
a defined area. Many Indian Tribal governments perform these functions.
Examples of such functions include, but are not limited to, levying
taxes, acquiring land by exercising the power of eminent domain, and
police power. Such examples should be included in a narrative statement
supporting the certification, which describes: (1) The form of the
Tribal government, (2) the types of essential governmental functions
currently performed, such as those listed above; and (3) the legal
authorities for performing these functions (e.g. Tribal constitutions
or codes). It should be relatively easy for Tribes to meet this
requirement without submitting copies of specific documents unless
requested to do so by EPA.
3. Jurisdiction Requirement
As discussed in section II.A above, EPA is proposing to interpret
the CAA as granting or delegating certain Federal authority to approved
Tribes over all air resources within the exterior boundaries of their
reservations. Generally, therefore, the significant issue that remains
in determining the extent of Tribal jurisdiction is the precise
boundary of the reservation in question. Accordingly, a Tribal
jurisdictional showing must identify, with clarity and precision, the
exterior boundaries of the reservation. Consistent with the simplified
review process, EPA is not proposing to specify particular supporting
materials that the Tribe must provide. However, a Tribal submission
will need to contain information adequate to demonstrate to EPA the
location and limits of the reservation, which will usually include a
map and a legal description of the area. EPA will determine the meaning
of the term ``reservation'' as indicated previously.
Note that there may be less frequent instances when more complex
legal and factual demonstrations must be made to establish
jurisdiction. As indicated above, section 301(d)(2)(B) of the Act
addresses jurisdiction over ``air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction'' (emphasis added). While EPA is proposing to construe the
Act as delegating to Tribes authority over all air resources within the
exterior boundaries of their reservations, the Agency will require a
Tribe to demonstrate its inherent authority over any areas outside of
the exterior boundaries of the reservation before EPA will approve a
Tribal program covering such areas. Where a Tribe seeks to develop and
administer an air program on off-reservation lands, the Tribal
submittal must be accompanied by appropriate legal and factual
information which supports its inherent authority to regulate emission
sources located on such lands.
Under the TAS process which EPA has implemented in the past, EPA
would not determine that a Tribe had the requisite jurisdiction without
first notifying appropriate ``governmental entities,'' such as States,
other Tribes and Federal land management agencies, of the Tribe's
jurisdictional assertions. Those entities were then given an
opportunity to comment on the Tribe's jurisdictional statement, and
whenever a comment raised a ``competing or conflicting claim,'' EPA
could not approve the Tribal application without first consulting with
DOI. Consistent with the revised eligibility policy, EPA is proposing
to implement a more streamlined approach under the CAA.
The first time a Tribe submits an application to EPA under the CAA,
EPA will, upon receipt of the application, notify all appropriate
``governmental entities''\12\ regarding the Tribe's assertion of
jurisdiction. The precise content of EPA's notification of other
governmental entities will depend on the geographic extent of the
Tribe's jurisdictional assertion. Specifically, if a Tribe seeks only
to implement a CAA program within the exterior boundaries of its
reservation, EPA's notification of other governments will only specify
the geographic boundaries of the reservation, as set forth in the
Tribe's application. However, where a Tribe seeks to administer a CAA
program on lands outside the exterior boundaries of a reservation, EPA
will notify the appropriate governmental entities of the substance of
and bases for the Tribe's assertion of inherent jurisdiction with
respect to such off-reservation lands.
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\12\For purposes of the CAA rule, EPA is proposing to adopt the
same definition of ``governmental entities'' as the Agency did in
its December 1991 Water Quality Standards regulation. See 56 FR
64876 at 64884 (Dec. 12, 1991).
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The appropriate governmental entities will have fifteen days
following their receipt of EPA's notification to provide formal
comments to EPA regarding any dispute they might have with the Tribe
concerning the boundary of the reservation. Where a Tribe has asserted
jurisdiction over off-reservation lands, and has included a more
detailed jurisdictional statement in its application, appropriate
governmental entities may request a one-time fifteen day extension to
the general fifteen day comment period. In all cases, comments from
appropriate governmental entities must be offered in a timely manner,
and must be limited to the Tribe's jurisdictional assertion. Where no
timely comments are presented, EPA will conclude that there is no
objection to the Tribal applicant's identified reservation boundaries
(or, if relevant, its assertion of jurisdiction outside the
reservation). Further, to raise a competing or conflicting claim, a
commenter must clearly explain the substance, basis, and extent of its
objections. Finally, where EPA receives timely notification of a
dispute, it may obtain such additional information and documentation as
it believes appropriate and may, at its option, consult with DOI.
Where EPA identifies a dispute and cannot confidently resolve it
promptly, it will retain the option of limiting approval of a Tribal
program to those areas that a Tribe has clearly shown are part of the
reservation (or are otherwise within the Tribe's jurisdiction). This
will allow EPA to approve the portion of a Tribal application that
covers all undisputed areas, while withholding action on the portion of
the application that addresses areas where a jurisdictional issue has
not been satisfactorily resolved. However, this approach will be
subject to any applicable statutory restrictions. See, e.g., section
110(k) of the Act (calls upon EPA to complete action on a SIP submittal
within certain specified timeframes).
Once EPA has made a determination under the CAA or other EPA-
administered environmental programs concerning the boundaries of a
reservation, it will rely on that determination in evaluating all
future applications from that Tribe under the CAA unless the
application presents different legal issues. For example, once the
Agency has arrived at a position concerning a reservation boundary
dispute, it will not alter that position in the absence of significant
new factual or legal information. Thus, as with the recognition and
governmental requirements, there will generally be no need to provide
EPA with additional demonstrations of jurisdiction, unless the Tribe is
making a more expansive jurisdictional assertion in a subsequent
submittal.
EPA believes that this new process for resolving questions of
jurisdiction constitutes a significant improvement over the old TAS
jurisdiction process. It will provide States with an opportunity to
notify EPA of boundary disputes and enable EPA to obtain relevant
information as needed while minimizing delays in the process and
focusing its inquiry on what is likely to be the principal relevant
issue, namely, the geographic boundaries of the reservation.
4. Capability Requirement
Section 301(d)(2)(C) of the CAA provides that in determining Tribal
eligibility the Administrator also must determine that the Tribe ``is
reasonably expected to be capable * * * of carrying out the functions
to be exercised in a manner consistent with the terms and purposes of
[the CAA] and all applicable regulations.'' A program-by-program
inquiry into the question of capability is necessary since a Tribe may
have capability to carry out certain activities but not others.
Therefore, EPA may request that to establish capability a Tribe submit
a narrative statement or other documents showing it is capable of
administering the program for which it is seeking approval. The
specific capabilities which must be described are set forth in today's
proposed rule.
In evaluating a Tribe's demonstration of capability, EPA may
consider the following factors:
(1) The Tribe's previous management experience;
(2) Existing environmental or public health programs administered
by the Tribe;
(3) The mechanism(s) in place for carrying out the executive,
legislative, and judicial functions of the Tribal government;
(4) The relationship between regulated entities and the
administrative agency of the Tribal government that will be the
regulator; and
(5) The technical and administrative capabilities of the staff to
administer and manage the program.
EPA recognizes that certain Tribes may not have substantial
experience administering environmental programs. A lack of experience
will not preclude a Tribe from demonstrating the required capability.
Otherwise Tribes would be placed in the dilemma of being denied the
opportunity to develop the requisite capability because they lack such
capability. For this reason, today's proposed rule requires Tribes
either to show that they have the necessary management and technical
skills or to submit a plan detailing steps for acquiring those skills.
However, this flexibility does not change the requirement that to
obtain approval for a particular program under the CAA the Tribe must
submit a fully effective program that meets all the applicable
statutory and regulatory requirements associated with the program in
question. Because a Tribe may not want to go through the expense of
developing such a program without first being assured of meeting the
eligibility requirements, today's proposed rule provide that a Tribe
may, at its option, ask for a preliminary finding on any or all of
these requirements.
EPA's evaluation of capability will also consider the relationship
between the existing or proposed Tribal agency that will implement the
program in question and any potential regulated Tribal entities. It is
not uncommon for a Tribe to be both the regulator and regulated entity,
and such a situation could result in a conflict of interest since the
Tribe would then be regulating itself. Independence of the regulator
and regulated entity best assures effective and fair administration of
a program.
A Tribe will generally not be required to divest itself of
ownership of any regulated entities to address this problem. Instead,
for example, the Tribe could create an independent organization to
regulate Tribal entities subject to CAA regulatory requirements.13
Similar arrangements could be established using existing Tribal
organizations.
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\1\3While States also are both the regulator and regulated
entity, state government organization is typically one in which the
State agency operating the regulated entity is not the same State
agency that has primary regulatory authority. Thus, this separation
of functions helps avoid potential conflicts of interest.
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This discussion is intended to alert Tribes at an early date about
a potential bar to regulatory program assumption that must be resolved.
For example, section 110 of the CAA sets out some of the basic
requirements that SIPs must meet to assure attainment and maintenance
of the NAAQS. Section 110(a)(2)(E)(ii) of the Act directs that SIPs
must provide requirements that the State comply with the requirements
applicable to State boards under section 128. Section 128, in turn,
provides that each SIP shall contain requirements that:
(1) Any board or body which approves permits or enforcement
orders under [the CAA] shall have at least a majority of members who
represent the public interest and do not derive any significant
portion of their income from persons subject to permits or
enforcement orders under [the CAA], and
(2) Any potential conflicts of interest by members of such board
or body or the head of an executive agency with similar powers be
adequately disclosed.
EPA does not intend to limit Tribal flexibility in creating
structures which will ensure adequate separation of the regulator and
regulated entity. Instead, EPA will evaluate whether the Tribal
submittal will ensure adequate separation of the regulator and
regulated entity on a case-by-case basis in the context of the
statutory and regulatory requirements applicable to the CAA program for
which a Tribe is seeking approval.
5. Tribal consortia
Each member of a Tribal consortium must meet the eligibility
qualifications described above. However, members of a consortium may
rely on the expertise and resources of the consortium in demonstrating
that the Tribe meets the capability requirement described above.
For example, some members of a consortium may have more technical
expertise and environmental management experience than other members. A
Tribe with less resources and expertise may rely on the combined
resources of the consortium in demonstrating that the Tribe is
``reasonably expected'' to be capable of carrying out the functions to
be exercised. However, a Tribe relying on a consortium in this manner
must provide reasonable assurances that the Tribe has responsibility
for carrying out necessary functions in the event the consortium fails
to.
B. Provisions for Which Tribal Implementation is Appropriate
1. Tribal Implementation is Generally Appropriate
Part III.A discussed the eligibility requirements that a Tribe must
meet in order to be treated as a State under the Clean Air Act. There
is a separate question of whether it is appropriate to treat eligible
Tribes in the same manner as States for all provisions under the Act,
or whether only certain provisions lend themselves to such an approach.
The Act provides that the Administrator shall promulgate regulations:
specifying those provisions of [the CAA] for which it is appropriate
to treat Indian tribes as States.
Section 301(d)(2). The Act further provides,
[i]n any case in which 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.
Section 301(d)(4). Thus, read together, the Act delegates to the
Administrator broad discretion in determining those provisions of the
Clean Air Act for which Tribes should be treated in the same manner as
States and those provisions for which such treatment would be
inappropriate or infeasible.
It is EPA's basic position, proposed here, that treatment of Tribes
in the same manner as States is appropriate for all programs under the
Act with the exception of only a few provisions (those for which EPA
has determined that it is infeasible or otherwise inappropriate to
treat States and Tribes in the same manner). EPA proposes to be
inclusive in identifying the provisions of the Act for which it is
appropriate to treat Tribes in the same manner as States so as to
maximize the opportunities for Tribal participation in CAA programs.
In light of this basic approach, today's proposed rule provides
that Tribes will generally be treated in the same manner as States for
all the provisions of the Clean Air Act, and specifies the limited
exceptions to this approach. EPA is proposing to treat Tribes in the
same manner as States for all of the remaining provisions of the
statute not identified as exceptions in the discussion below. Today's
action also addresses alternative means to achieve the intended purpose
of the Act, where EPA believes such provisions are necessary in light
of a proposed exception. Section 301(d)(4).
A common concern raised by both Tribes and States during the
development of this proposed rule was the potential for sources located
on State or Tribal lands to adversely impact air quality on downwind
State or Tribal lands. EPA is proposing in this rule that the CAA
protections against interstate pollutant transport apply with equal
force to States and Tribes.
Thus, for example, EPA is proposing that the prohibitions and
authority contained in sections 110(a)(2)(D) and 126 of the CAA apply
to Tribes in the same manner as States. Section 110(a)(2)(D), among
other things, requires States to include provisions in their SIPs that
prohibit emissions activity within the State from significantly
contributing to nonattainment, interfering with maintenance of the
NAAQS, or interfering with measures under the PSD or visibility
protection programs in another State. Section 126 authorizes any State
to petition EPA to enforce these prohibitions against a State
containing an allegedly offending source or group of sources.
2. Exceptions to Tribal Implementation
EPA notes at the outset that recurring provisions for which EPA is
proposing not to treat Tribes in the same manner as States involve
certain Clean Air Act submittal deadlines. The Act contains many
deadlines that mandate the submittal of a State plan, program or other
requirement by certain dates. However, Tribes are not similarly
compelled to develop and seek approval of air programs. Section
301(d)(2) provides for EPA to promulgate regulations specifying ``those
provisions of this [Act] for which it is appropriate to treat Indian
tribes as States'' but does not require Indian Tribes to develop CAA
programs.
Further, the State program submittal deadlines in the statute are
based upon a relatively long history of Clean Air Act planning and
implementation by States.14 States have assumed an active role in
Clean Air Act implementation since the 1970 Amendments to the Act. By
comparison, in substantial part, Tribal authority for Clean Air Act
programs was expressly addressed in the Act for the first time in the
1990 Amendments. Tribes, therefore, are at best in the early stages of
developing air program expertise and planning efforts. Accordingly, EPA
believes it would be both infeasible and inappropriate to subject
Tribes to the State program submittal and related deadlines in the
statute as explained in more detail below.
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\1\4Note also that many of the submittal deadlines run from the
enactment of the 1990 Amendments to the Clean Air Act on November
15, 1990. Therefore, Tribes submitting programs in response to the
final rule authorizing the treatment of Tribes as States for those
provisions would already be substantially behind in meeting the
deadlines.
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A related set of provisions are the sanctions and other Federal
oversight mechanisms in the Act which are triggered when States fail to
meet the air program submittal deadlines called for in the Act or when
EPA disapproves a program submittal. In several instances, the Act
mandates the imposition of sanctions, such as Federal transportation
funding restrictions and two-to-one new source review offsets, by a
specific deadline if a State fails to timely submit a required program
or submits a program that is not fully approvable. E.g., CAA sections
179 and 502(d)(2)(B). Similarly, the Act often imposes specific
deadlines upon EPA for issuing a Federal program within a certain
period after a State fails to submit a program or after EPA disapproves
an inadequate State program. E.g., CAA sections 110(c)(1) and
502(d)(3). For the reasons stated above, EPA is proposing not to treat
Tribes in the same manner as States for certain provisions contained in
these sections.
However, EPA is proposing to treat Tribes in the same manner as
States for those provisions that mandate the imposition of Federal
sanctions for failure to adequately implement or enforce an approved
Clean Air Act program. E.g., CAA sections 179(a)(4) and 502(i)(2). This
includes EPA's authority to withhold all or part of air pollution
control grants awarded under section 105. EPA is proposing to treat
Tribes in the same fashion as States for the purposes of mandatory
sanctions for nonimplementation of an approved Tribal program because
once a Tribe has sufficient legal authority and capability to have a
program approved, it should be treated as a similarly situated State.
Thus, EPA expects a Tribe to follow through on its implementation of an
approved program in the same manner as a State. This will provide an
incentive for Tribes to maintain the primary role in implementing a
previously approved air program and to administer effective programs.
In addition, EPA will also treat Tribes in the same fashion as States
with respect to EPA's discretionary authority to impose sanctions.
E.g., sections 110(m), 502(d)(2), and 502(i)(1).
The approach EPA is proposing today regarding Clean Air Act
deadlines and Federal sanctions is consistent with the approach
outlined under Parts II.B. and II.C. of this notice. EPA's principal
goal is to have Tribes develop and administer their own CAA programs.
As indicated, EPA intends to issue guidance subsequent to this rule
that sets out in some detail the Federal efforts and timetables for
providing broader air quality protection for reservation air resources
in those instances when Tribes choose not to develop their own
programs. EPA intends to provide direct Federal Clean Air Act
protection on reservations if, after some reasonable time, its efforts
to assist Tribes in developing Tribal programs under the Act do not in
fact lead to Tribal program adoption and approval.
a. National Ambient Air Quality Standards applicable implementation
plan submittal deadlines and related sanctions. Consistent with the
general discussion above, EPA is not proposing to treat Tribes in the
same manner as States for the general implementation plan submittal
deadlines specified in section 110(a)(1) of the Act. Further, Tribes
will not be subject to the plan submittal deadlines for nonattainment
areas set out in sections 172(a)(2), 182, 187, 189, and 191. EPA also
is not proposing to treat Tribes in the same manner as States for the
deadlines set out in section 124, associated with the review and
revision of implementation plans related to major fuel burning sources.
However, EPA is proposing to treat Tribes in the same manner as
States with respect to the statutory requirements that will apply in
evaluating a Tribal program once a Tribe has decided to make a
submittal. Further, as indicated previously, EPA intends to issue
guidance specifying timeframes by which it will provide Federal
protection for Tribes that have air quality worse than the NAAQS but
are unable to develop their own CAA programs. The timing of Federal
protection will be informed by the applicable Clean Air Act NAAQS
attainment deadlines.
Also consistent with the general discussion above, EPA is not
proposing to treat Tribes in the same manner as States for the
imposition of certain mandatory sanctions by EPA under section 179
because a Tribe has failed to submit a Tribal Implementation Plan (TIP)
or other requirement, has made an incomplete submittal, or has made a
submittal that is in part or in whole not approvable. See CAA section
179(a)(1)-(3); see also discussion under Part III.C.1. of this
preamble, concerning EPA's ``modular'' approach to Tribal Air Programs
(TAPs). However, EPA is proposing to treat Tribes in the same manner as
States for those provisions of section 179 mandating the imposition of
sanctions when EPA determines that a requirement of an approved plan is
not being implemented. See CAA section 179(a)(4). In addition, EPA is
proposing to treat Tribes in the same manner as States with respect to
EPA's discretionary authority to impose sanctions. See CAA section
110(m).
EPA is not proposing to treat Tribes in the same manner as States
for the provisions of section 110(c)(1) that direct EPA to issue a
Federal Implementation Plan (FIP) within two years after EPA finds that
a State has failed to submit a required plan or has submitted an
incomplete plan or within two years after EPA has disapproved a plan in
whole or in part. This exception would apply only for that provision of
section 110(c)(1) that sets a specified date by which EPA must issue a
FIP. Treating Tribes in a similar manner as States under that provision
would be inappropriate since Tribes are not in the first instance, like
States, required to make submittals by a date certain, and in light of
the very recent initiation of Tribal air quality planning efforts. EPA
is proposing to treat Tribes in the same manner as States for all other
provisions of section 110(c)(1). Thus, EPA would continue to be subject
to the basic requirement to issue a FIP for affected areas within some
reasonable time. EPA would give substantial weight to Tribal air
quality needs in determining what is reasonable in particular
instances. Further, as discussed in Part II.B., EPA intends to spell
out in subsequent guidance the specific programs that EPA will
implement to provide CAA protection within reservations and on other
lands subject to Tribal jurisdiction.
However, EPA is proposing to treat Tribes in the same manner as it
treats States for the State Implementation Plan/Tribal Implementation
Plan (SIP/TIP) call provisions under sections 110 (a)(2)(H)(ii) and
(k)(5) of the Act. These provisions authorize EPA to require a State to
revise a plan that is inadequate to assure attainment and maintenance
of the relevant NAAQS or is otherwise inadequate to ensure compliance
with applicable Clean Air Act requirements. Thus, once a Tribal
Implementation Plan has been approved in whole or in part as meeting an
applicable CAA requirement, Tribes will be similarly subject to these
SIP/TIP call provisions.
b. Visibility implementation plan submittal deadlines. EPA is not
proposing to treat Tribes in the same manner as States for the
provisions of section 169A or implementing regulations requiring the
submittal of visibility implementation plans by specific deadlines.
Under today's proposal, Tribes would be treated in the same manner as
States for all other purposes under section 169A and its implementing
regulations.
c. Interstate air pollution and visibility transport. Commission
plan submittal deadlines. EPA is not proposing to treat Tribes in the
same manner as States for those interstate commission CAA provisions
requiring the submittal of an applicable implementation plan by a
specific date. See CAA sections 169B(e)(2), 184 (b)(1) & (c)(5).
However, EPA is proposing to treat Tribes in the same manner as States
for all other interstate commission-related provisions under sections
169B, 176A and 184 of the CAA.
Therefore, for example, Tribes meeting eligibility requirements for
these provisions of the CAA would be treated in the same manner as
States in identifying what areas should be included in ``interstate''
air pollution and visibility transport regions and in establishing
commission membership. For eligible Tribes participating as members of
such Commissions, the Administrator would establish those submittal
deadlines that are determined to be practicable or, as with other non-
participating Tribes in an affected transport region, provide for
Federal implementation of necessary measures.
d. Criminal enforcement. In general, EPA is proposing that the
enforcement provisions of sections 113 and 114 of the Act apply to
Tribes in the same way that they apply to States. This would include
the ability of a Tribe to establish its own administrative enforcement
program, so that the Tribe could enforce administrative as well as
civil penalties. In both cases, EPA would have the authority to take
necessary enforcement action if the Tribe did not take such action or
did not enforce adequately (e.g. did not impose a sufficient penalty);
however, it would be most prudent for Tribes to attempt enforcement in
the first instance. It should also be noted that EPA has a general
policy of consulting with Tribal leaders and managers prior to taking
an enforcement action against Tribal owned or managed facilities.
November 8, 1984 ``EPA Indian Policy Implementation Guidance'' at p. 6.
Section 113(c) of the CAA provides for the imposition of criminal
penalties. However, in certain circumstances Indian Tribes have limited
criminal enforcement authority. Federal law prohibits Indian Tribes
from holding criminal trials of or imposing criminal penalties on non-
Indians, in the absence of a treaty or other agreement to the contrary.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In addition,
the Federal Indian Civil Rights Act prohibits any Indian Tribe from
imposing for conviction of any one offense any criminal fine greater
than $500. 25 U.S.C. section 1302(7). To provide for the possible
imposition of criminal penalties with respect to facilities located on
Tribal lands, each Tribe seeking approval of a CAA program that
requires such authority must enter into a formal Memorandum of
Agreement with EPA, through which it would agree to provide for the
timely and appropriate referral of criminal enforcement matters to the
EPA Regional Administrator.
e. Title V operating permit program submittal deadlines,
implementation deadlines and other requirements. For the reasons stated
in the introduction to this section of the preamble, EPA is not
proposing to treat Tribes in the same manner as States for the
operating permit program submittal deadline set out in section
502(d)(1). Similarly, EPA is not proposing to treat Tribes in the same
manner as States under the provisions of section 502(d)(2)(B) that
mandate the imposition of sanctions under section 179 when a State
fails to timely submit a required permit program or EPA disapproves a
permit program. EPA also is not proposing to treat Tribes as States for
the provisions of section 502(d)(3) that direct EPA to promulgate and
administer a Federal permit program if, within two years after the
required submittal date, EPA has not approved a State permit program.
Similar to the companion provision in Title I described above (i.e.,
section 110(c)(1)), EPA is proposing to exclude only those limited
provisions of section 502(d)(3) that direct EPA action by a date
certain (EPA would continue to be subject to the basic requirement to
implement a Federal permit program within a reasonable period; EPA
would give substantial weight to Tribal air quality needs in
determining what is reasonable in particular instances). These
provisions are inappropriate because Tribes are not in the first
instance directed by the statute to submit their own programs and in
light of the fact that the Tribal CAA program development efforts are
at a very preliminary stage.
However, Tribes will be subject to the sanctions provisions of
section 502(i) (1)-(4) in the same manner as States. Section 502(i)
provides for the discretionary and mandatory imposition of section 179
sanctions when EPA determines that a permitting authority is not
adequately administering and enforcing an operating permit program, or
a portion thereof. Thus, once a Tribe submits an operating permit
program and EPA approves that program, Tribes will be subject to the
sanction provisions of section 502(i)(1)-(4) in the same way that
States are. In addition, Tribes will be treated in the same manner as
States with respect to EPA's discretionary authority to impose
sanctions under section 502(d)(2)(A).
EPA is also not proposing to treat Tribes in the same manner as
States for the interim approval provisions in section 502(g) of the
Act. Those provisions authorize EPA to temporarily grant approval to a
program that in substantial part meets the requirements of the Act, but
that is not fully approvable. An interim approval under these
provisions expires on a date established by EPA but not later than two
years after the approval. Section 502(g) provides that the Title V
sanctions provisions and obligations of the Administrator to promulgate
a Federal operating permit program are suspended during this interim
period.
The interim approval provisions allow EPA to grant States
submitting a substantially satisfactory permit program up to two
additional years to submit a fully approvable program without risk of
sanctions and Federal implementation. These provisions are an adjunct
of the statutory deadline requiring the submittal of State Title V
operating permit programs by November 15, 1993. If States were not in
the first instance required to submit operating permit programs by that
date certain, the relief of additional time to submit an approvable
program without the risk of Federal penalties would be unnecessary. As
stated previously, EPA is not proposing to treat Tribes in the same
manner as States for Title V program submittal deadlines. Accordingly,
EPA is also not proposing to treat Tribes in the same manner as States
for this related interim approval authority.
Consistent with the general modular approach proposed with respect
to Tribal programs (discussed below), EPA intends to allow Tribes some
additional flexibility in implementing Title V programs. For example,
EPA may allow Tribes to extend the period for permitting affected Title
V sources over as long as five years from program approval.
Accordingly, EPA is not proposing to treat Tribes in the same manner as
States for those provisions of section 503(c) of the Act that direct
permitting authorities to establish a phased schedule for acting on
permit applications submitted within the first full year after the
effective date of a permit program (or a partial or interim program).
Section 503(c) provides that the phased schedule shall assure that at
least one-third of such permit applications will be acted on by the
permitting authority over a period of not to exceed three years after
the effective date. EPA is not proposing to subject Tribes to these
provisions. While it is possible that EPA may require some Tribes to
permit affected sources within three years, EPA nevertheless wants to
retain the discretion to allow Tribes up to five years to permit
affected Title V sources after the date of program approval.
Further discussion of Title V requirements is set out below under
the portion of this notice titled ``Revisions to CAA Implementing
Regulations.''
f. Small business assistance program submittal deadline and
compliance advisory panel requirement. EPA is not proposing to treat
Tribes in the same manner as States for the provisions of section
507(a) specifying a deadline for the submittal of plans for
establishing a small business stationary source technical and
environmental compliance assistance program. EPA also is not proposing
to treat Tribes in the same manner as States under section 507(e) which
directs States to establish a Compliance Advisory Panel. Both of these
provisions are inconsistent with section 301(d), which authorizes but
does not require Tribes to develop and submit Clean Air Act programs to
EPA for approval. However, if a Tribe elects to establish a Compliance
Advisory Panel under section 507(e), the membership specified in
section 507(e)(2) shall be selected by the Tribal leader, legislative
bodies and Tribal agencies that correspond with those identified for
States.
Generally, the preceding discussion identifies those provisions of
the CAA for which EPA is not proposing to treat Tribes in the same
manner as States. EPA is proposing that Tribes be treated in the same
manner as States for all other provisions of the statute.
3. Stringency of Tribal Regulations
Under the Clean Air Act, States generally retain legal authority to
impose requirements that are more stringent that Federal standards.
Section 116 of the Act, 42 U.S.C. 7416, expressly reserves States'
authority to impose air pollution control requirements that are more
stringent than those specified under the Act. This State discretion is
retained except where the Act explicitly preempts or precludes the
establishment of stricter State standards.
In certain instances under the Act uniformity is necessary to avoid
an undue burden on the interstate sale of goods. In such instances,
Congress has expressly prevented States from imposing stricter State
standards and, therefore, the Federal requirements under the Act
represent both the nationwide floor and ceiling. For example, section
209 of the Act, 42 U.S.C. section 7543, limits States' authority to
adopt and enforce emission standards for new motor vehicles.
EPA is proposing to treat Tribes in the same manner as States for
the purposes of both section 116 of the Act and for all of the CAA
preemption provisions, including provisions such as section 177 that
authorize exclusions from preemption provisions. This will clarify
EPA's position that Tribes like States generally have authority to
exceed minimum Federal requirements. It will also clarify the fact that
Tribes, like States, are preempted from imposing stricter standards
where Congress has so specified. This will advance the overarching
purpose of the preemption provisions to avoid undue barriers on the
trade of goods in commerce.
4. Provisions for Which no Separate Tribal Program Required.
Under some provisions of the CAA, Tribes would have a specific role
by virtue of having met the minimum eligibility requirements discussed
in Part III.A, irrespective of whether a specific program is approved.
For example, under section 107(d)(3), the Administrator would
notify an eligible Tribe of information indicating that an area within
the Tribe's jurisdiction should be redesignated, and the Tribe would
have an opportunity to provide input on that redesignation in the same
fashion as a State. Under section 107(d)(3) a Tribe could also submit a
revised designation of any area within its jurisdiction on its own
motion. Similarly, under section 112(r)(7)(B)(iii), risk management
plans would be submitted to Tribal Emergency Response Commissions.
Under sections 169B, 176A and 184 Tribes meeting eligibility
requirements for such provisions shall be treated in the same manner as
States in identifying what areas should be included in interstate air
pollution and visibility transport regions and in establishing
commission membership.15
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\1\5EPA always retains any general discretionary authority to
make Federal Indian Reservations part of a transport Region and to
include representatives of Indian Tribes as interstate transport
Commission members.
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Also, treating Tribes in the same manner as States for purposes of
section 505(a)(2) would require permitting authorities under Title V to
notify an eligible Tribe that is contiguous to a State in which an
emission originates and whose air quality may be affected by that
emission, or that is within 50 miles of the emission source, of any
Title V permit applications that are forwarded to EPA.16
Permitting authorities would also be required to provide such Tribes an
opportunity to submit written recommendations and to notify such Tribes
in writing of any recommendations not accepted and the reasons why. See
40 CFR 70.8(b)(2). Thus, special procedural provisions would apply to
Tribes treated in the same manner as States for the purpose of Title V
notification. This Title V notification and permitting authority
obligation to explain any recommendations not accepted would apply
regardless of whether an eligible Tribe has an approved Title V
program.
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\1\6The geographic scope of Tribal lands for Title V
notification purposes would include any lands over which an eligible
Tribe has been determined to have jurisdiction, including any off-
reservation lands.
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As elaborated below, EPA expects that most recognized Tribes will
be able to readily meet the eligibility requirements for such
provisions as Title V permit application notification. To promote
intergovernmental coordination, EPA encourages States and local
governments to take steps now to provide Title V notification to
Tribes, instead of waiting for a formal eligibility determination by
EPA. EPA also encourages Tribes to exercise the notification rights
that extend to any citizen under the Title V program in the interim
period preceding a Tribal eligibility determination, if necessary to
ensure notification. The regulations implementing the Title V operating
permit program generally require that permitting authorities must
provide adequate procedures for public notice including offering an
opportunity for public comment and a hearing on the draft permit. See
40 CFR 70.7(h). These procedures include providing notice of draft
permit proceedings to persons on a mailing list developed by the
permitting authority, including those who request in writing to be on
the list. See 40 CFR 70.7(h)(1). Thus, a Tribe not determined eligible
to be treated in the same manner as a State for notification could
nevertheless ensure that it receives notification of draft permits by
submitting a written request for such notification to appropriate
permitting authorities.
EPA intends to revise existing CAA regulations to reflect this
Tribal authority as part of its on-going regulatory development
efforts. EPA also requests public comment identifying any other
provisions of the CAA which similarly do not require a Tribal program
submittal in order for a Tribe to have a role in CAA implementation.
In all instances, including those provisions of the Act for which
no separate Tribal program submittal is required, it is a statutory
requirement that a Tribe meet the section 301(d)(2) eligibility
requirements, discussed in Part III.A above, before it may be treated
in the same manner as a State. However, as a practical matter, this
should not be burdensome. Often the provisions not requiring
accompanying program submittals are intended to promote
intergovernmental coordination and involve receipt or transmittal of
information or active participation on a multigovernmental entity.
Therefore, a minimal demonstration would be necessary to establish
Tribal capability to carry out these functions consistent with the
terms and purposes of statutory and regulatory requirements. Further,
under today's proposed streamlined procedures for determining
eligibility, EPA has generally simplified the demonstration that must
be made for eligibility approval. Taken together with the minimum
capability needed to carry out these particular requirements, most
Federally recognized Tribes are expected to be able to readily
demonstrate eligibility to be treated in the same manner as States for
CAA provisions not requiring a program submittal.
C. Procedures for Review of Tribal Air Programs
In general, Tribes will be required to comply with the same
statutory and regulatory requirements as States for the CAA programs
that are submitted to EPA for approval. The main difference is that
section 301(d) does not require Tribes to develop CAA programs. Thus, a
Tribe may decide to implement only those programs, or even portions of
programs, that are most relevant to the air quality situation on its
reservation or other lands subject to its jurisdiction. This ``modular
approach'' to Tribal CAA program development is discussed further in
Part III.C.1 below.
In addition, section 301(d)(3) of the Act provides that:
[t]he Administrator may promulgate regulations which establish
the elements of tribal implementation plans and procedures for
approval of tribal implementation plans and portions thereof.
Section 301(d)(4) provides that:
[i]n any case in which 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.
Further, as discussed previously, section 301(d)(2) delegates to
the Administrator broad discretion in determining those provisions of
the Act for which it is appropriate to treat Tribes as States.
EPA interprets these provisions to mean that, both in the case of
TIPs and in the case of other Tribal air programs (``TAPs''), where EPA
finds that it is not appropriate for the same requirements to apply to
Tribes as to States, EPA may modify those requirements by rulemaking.
Accordingly, in this rulemaking EPA is proposing to make some changes
to the State requirements for Tribal CAA programs. In addition, EPA is
proposing to allow a Tribe to demonstrate to EPA that a specific CAA
requirement may be inappropriate for that Tribe in light of the
circumstances presented in a particular case. These issues are
discussed further in Parts III.C.2 and C.3 below.
1. Modular Approach to Tribal Air Programs
Because Tribal governments have limited resources, and because
Federal funding to support Tribal efforts is also limited, Tribes may
decide to implement only certain of the CAA provisions for which EPA
has determined it is appropriate to treat Tribes in the same manner as
States. In order to provide flexibility and incentive for Tribal
governments to assume responsibility for CAA programs, Tribes may
submit reasonably severable elements of programs to EPA for approval
instead of entire complex programs. However, in order to be approved,
any such submittal must meet all applicable minimum Federal
requirements.
As one of the first steps in identifying Tribal priorities, EPA
encourages Tribes to thoroughly assess their current air quality
through emission inventories. Tribes should develop an accurate,
comprehensive and current inventory of emissions from all sources of
air pollution within the reservation and should project potential
future emissions based on likely growth. This will help Tribes estimate
the nature and location of air quality problems and, in turn, help
prioritize Tribal CAA program development.17 Note that EPA has
issued detailed guidance on how to conduct emission inventories.18
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\1\7As discussed in Part II.B. above, EPA intends to provide
Tribal air quality protection when Tribes do not develop such
programs. EPA's efforts will take place in a prioritized, phased-in
fashion due to limitations on Federal resources.
\1\8See Volumes I-V of the Procedures for Emission Inventory
Preparation--Volume I: Emission Inventory Fundamentals, EPA-450/4-
81-026a, Sept. 1981; Volume II: Point Sources, EPA-450/4-81-026b,
Sept. 1981; Volume III: Area Sources, EPA-450/4-81-026c, Sept. 1981;
Volume IV: Mobile Sources, EPA-450/4-81-026d, 1992; Volume V:
Bibliography, EPA-450/4-81-026e, Sept. 1981. The Clearinghouse for
Inventories and Emission Factors, (919) 541-5285, has information on
obtaining copies of these and other emission inventory guidance
documents.
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The results of Tribal emissions inventory assessments and
projections regarding future growth will help Tribes to determine
whether relatively few or many activities will need to be implemented
immediately. Some minor problems may be addressed through public
education and basic strategies to control the sources of pollution.
Other problems may require some combination of monitoring, modelling
and the development of Tribal plans and regulations. If future growth
in emissions is projected, Tribes should also consider developing
programs for the Prevention of Significant Deterioration of Air Quality
(``PSD''). See Addendum A, ``Title I'' discussion (overview of the PSD
program) and Part III.D.
Where the emissions inventory reveals a potential air quality
problem, air quality monitoring can help further characterize the
potential problem. EPA has issued regulations and guidance on air
quality monitoring. EPA's air quality monitoring regulations are set
out at 40 CFR part 58. Among other things, Appendices A through G to 40
CFR part 58 describe air quality network design, criteria for citing
air quality monitors and quality assurance criteria.
In prioritizing Tribal efforts, Tribes should also evaluate the
expertise and resource requirements needed to implement desired
programs. As stated above, Tribes will be given the flexibility of
implementing programs in a modular fashion. Thus, Tribes can develop
reasonably severable CAA programs to address particular air quality
problems and submit them to EPA for approval.
For example, a Tribe having a PM-10 air quality problem may develop
a partial PM-10 nonattainment implementation plan that addresses
pollution from existing sources but does not, for example, contain a
program governing the review of new sources that propose to locate in
the area. EPA would not decline to approve the submittal until the
Tribe developed a nonattainment new source review program for PM-10 or
developed a plan for addressing an ozone pollution problem.
Similarly, a Tribe having relatively good air quality and
anticipating likely new source growth in the area may choose to focus
resources on developing a PSD program. The CAA's PSD permit program
provides for preconstruction review of the air quality impacts
associated with proposed new or modified major stationary sources in
areas meeting air quality standards. The permitting process is to
ensure that the proposed source employs state-of-the-art control
technology, does not cause or contribute to an exceedance of air
quality standards, and does not adversely impact National Parks and
Wilderness areas.
A Tribe may develop and submit to EPA for approval a PSD permit
program alone. A Tribe expecting certain categories of new source
growth may develop and submit to EPA for approval a PSD permit program
addressing those sources or source categories.19 Under the rule
proposed today, if the implementation plan elements or other partial
CAA program submitted by the Tribe is reasonably severable and meets
the applicable minimum requirements under Federal law, EPA will approve
the submittal.
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\1\9As described elsewhere in this notice, EPA will issue PSD
permits for any sources not covered by an approved PSD program.
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2. Procedures for Reviewing and Approving Tribal Implementation Plans
(``TIPs'')
The CAA contains provisions which specifically govern EPA's review
and processing of the State implementation plans (SIPs) developed under
Title I of the Act to provide for attainment and maintenance of the
national ambient air quality standards (NAAQS). See Addendum A, ``Title
I'' discussion. These provisions are set forth in section 110(k) of the
Act. The CAA authorizes EPA to amend, by regulation, the procedures
governing the review and processing of analogous Tribal implementation
plans (TIPs). See sections 110(o) and 301(d)(3).
In broad terms, section 110(k)(1) provides the criteria EPA is to
apply in determining whether a submittal is complete and therefore
warrants further review and action. See also 57 FR 13,498, 13,565
(April 16, 1992). The EPA's completeness criteria for SIP submittals
are set out at 40 CFR Part 51, Appendix V. EPA is required to make
completeness determinations within 60 days of receiving a SIP
submittal. However, a submittal is deemed complete by operation of law
if a completeness determination has not been made by EPA within 6
months of EPA's receipt of the submittal. Section 110(k)(1) & 57 FR at
13,565.
Section 110(k)(3)-(4) address EPA's review of submittals that have
been deemed complete. For example, section 110(k)(3) provides that EPA
shall fully approve submittals that meet all of the applicable
requirements of the Act, and partially approve and disapprove
submittals that meet only a portion of the applicable requirements.
Section 110(k)(4) further authorizes EPA to conditionally approve
commitments by a State to adopt specific enforceable measures by a date
certain that is no later than one year after the approval. The
conditional approval is automatically converted to a disapproval if the
State fails to fulfill the commitment. Section 110(k)(2) directs EPA to
act on a submittal within 12 months of determining it to be complete.
The Act calls for the imposition of sanctions and the issuance of a
Federal implementation plan when a State fails to submit a required
plan or such plan is disapproved. See sections 110(c)(1), 110(m) and
179 of the Act. Guidance on EPA's implementation of these and related
provisions is set out in a July 9, 1992 memorandum from John Calcagni,
``Processing of State Implementation Plan (SIP) Submittals.''
As indicated previously, the Act does not require Tribes to submit
TIPs. For that reason and other reasons specified above, EPA is not
proposing to treat Tribes in the same manner as States for the
implementation plan submittal deadlines specified in the Act. See Part
III.B above. Further, EPA is proposing to accept any reasonably
severable portion of an applicable Tribal implementation plan.
EPA is proposing to apply the completeness criteria to TIPs in the
manner described below. If a Tribe submits a reasonably severable
portion of a TIP that meets applicable completeness criteria, EPA will
continue to process the submittal. If the submittal is incomplete EPA
will return it to the Tribe, identifying the deficiencies. EPA will
exercise one of two options with respect to a complete TIP submittal.
EPA will fully approve any portion of a TIP if it is reasonably
severable and meets the applicable Federal requirements. For any
portion that is not approvable, EPA will disapprove the submittal and
work closely with the Tribe to correct the identified deficiencies.
However, as noted earlier in Part III.B, EPA's disapproval of a TIP
will not have the mandatory sanctions consequences that apply to States
under section 179 of the Act or the consequences under section
110(c)(1) of requiring a FIP within two years of the disapproval.
As with SIPs, TIPs should be submitted to the EPA Regional Office
for the region in which the Tribe is located. Addendum B to this notice
contains a list and the addresses of EPA's Regional Offices and a map
indicating the regions that they encompass. Any Tribes that have not
yet been determined to be eligible by EPA for CAA program purposes must
submit the materials described in Part III.A above, in conjunction with
any TIP submittal.
3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')
EPA will review all other Tribal air program submittals in light of
the applicable statutory and regulatory requirements as well as EPA
policy, including the modular concept described above. EPA is proposing
in today's rule to treat Tribes in the same manner as States for all of
the provisions of the CAA, with the limited exceptions identified in
Part III.B & C above. However, EPA recognizes that in proposing this
rule and obtaining comments, EPA may not have anticipated and
identified all of those requirements applicable to States that would be
infeasible or inappropriate to apply to Tribes. Therefore, EPA is
proposing to add a regulatory provision that will generally allow
Tribes to demonstrate to EPA, in conjunction with the submittal of a
TAP, that treatment of a Tribe in the same manner as a State for a
particular provision is inappropriate or administratively infeasible.
EPA will review the Tribal demonstration and take appropriate action.
TAPs should be submitted to the Regional Office for the region in
which the Tribe is located. See Addendum B. EPA will internally review
TAPs in the same manner as it reviews State submittals for the specific
CAA programs presented, consulting with and obtaining the concurrence
of the appropriate EPA offices. A determination that a TAP is not
approvable or that a Tribe has not met the general eligibility
requirements described in Part III.A above does not preclude the Tribe
from making subsequent submittals at a future date. If EPA determines
that a Tribal submittal is deficient or incomplete, EPA will work
closely with the Tribe to identify and correct the deficiencies.
D. Revisions to CAA Implementing Regulations
The regulations implementing the CAA span many pages of the Code of
Federal Regulations. In today's action, EPA is proposing to add new 40
CFR part 49, which will address the Tribal CAA authority described in
this notice. To implement this authority EPA is also proposing to add a
general requirement in part 49 that eligible Tribes will be treated in
the same manner as States under all of EPA's existing, currently
effective regulations implementing the Clean Air Act, except those
regulations implementing provisions of the CAA for which EPA has
concluded that it would be inappropriate to treat Tribes as States.
Such exceptions are described in detail in Part III.B of this notice.
EPA will undertake a major effort, in conjunction with forthcoming
rulemaking initiatives and its periodic review and revision of existing
regulations, to make conforming changes to all CAA implementing
regulations. As examples, today's proposed rule contains conforming
modifications to 40 CFR Parts 50 and 81. The discussion below also
explains in detail how the existing regulations implementing new source
review permitting requirements and Title V permit program requirements
would be affected by the action proposed today. The general regulatory
provision applying existing, currently effective regulations to Tribes,
as described in the previous paragraph, will address the application of
existing regulations during the interim period in which conforming
changes are made to CAA regulations.
Further, in Part IV below, EPA outlines potential ways in which
EPA's administration of Federal financial assistance for Tribes may
differ from States. Thus, EPA is proposing to make corresponding
changes to regulations implementing Federal financial assistance
requirements.
1. 40 CFR Part 35--State [Tribal] and Local Assistance
EPA is proposing to make changes to its regulations at 40 CFR Parts
35 related to Federal financial assistance. The proposed changes are
described in detail in Part IV of today's preamble.
2. 40 CFR Part 49--Tribal Clean Air Act Authority
The general Tribal authority provisions proposed in today's action
will be codified at 40 CFR part 49. This includes the following: EPA's
proposed interpretation of relevant jurisdictional issues, discussed in
Part II; the proposed simplified eligibility criteria, discussed in
Part III.A; the proposed finding that Tribes should generally be
treated in the same manner as States under the CAA, the specific
exceptions to this general finding, and the proposed provision
authorizing Tribes to identify and request additional exceptions on an
ad hoc basis, discussed in Part III.B, and; the general procedures for
reviewing Tribal air programs, discussed in Part III.C.
3. 40 CFR Part 50--National Primary and Secondary Ambient Air Quality
Standards
EPA is proposing conforming changes to 40 CFR part 50. These
modifications clarify that references to the term ``State'' in 40 CFR
Part 50 include, as appropriate, ``Indian Tribe'' and ``Indian
country.'' The revisions proposed clarify, for example, that under 40
CFR 50.2(c), the promulgation of NAAQS shall not be considered in any
manner to allow significant deterioration of existing air quality in
any portion of Indian country (as defined in 18 U.S.C. 1151). They also
clarify that in the same way that section 50.2(d) provides that States
retain discretion to establish ambient air quality standards more
stringent than the NAAQS, the establishment of NAAQS in no way
prohibits Indian Tribes from establishing ambient air quality standards
that are more stringent than the NAAQS.
4. 40 CFR Part 51--Requirements for Preparation, Adoption, and
Submittal of Implementation Plans.
The regulations in Part 51 contain the basic requirements for state
implementation plans (SIP). However, EPA has not systematically updated
40 CFR Part 51 since the passage of the 1990 Amendments to the Clean
Air Act. In many instances these regulatory requirements are
inconsistent with the revised law and are therefore inoperative as a
matter of law. See CAA section 193 (``regulation * * * in effect before
the date of enactment of the Clean Air Act Amendments of 1990 shall
remain in effect according to its terms, except to the extent * * *
inconsistent with any provision of this Act.'')
To facilitate SIP development under the amended law, EPA has issued
guidance documents. These documents reflected EPA's preliminary
interpretations of the relevant Act requirements at that time. See,
e.g., ``General Preamble for the Implementation of Title I of the Clean
Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992; 57 FR 18070,
April 28, 1992); ``New Source Review (NSR) Program Supplemental
Transitional Guidance on Applicability of New Part D NSR Permit
Requirements'' (Issued by Office of Air Quality Planning and Standards
Director on September 3, 1992); NOX Supplement to the General
Preamble (57 FR 55620, November 25, 1992).
EPA intends to update both the existing and new source regulatory
requirements in Part 51 to make clear which regulatory provisions were
rendered nugatory by the 1990 Amendments and which continue to have
legal force.
Interim implementation of applicable Title I requirements for
Tribal lands should be guided by EPA's preliminary interpretations of
the revised Title I requirements and the interpretive statements in
this notice.
5. 40 CFR Part 52--Approval and Promulgation of Implementation Plans
Federal PSD Permitting. EPA has issued rules that provide for
Federal implementation of the PSD permit program (preconstruction
permit requirements applicable to major stationary sources or major
modifications20 in areas that currently meet the NAAQS). 40 CFR
52.21. In the same manner as States, Federal implementation of a PSD
program on Tribal lands applies in any case where the Tribe does not
have an approved PSD program.
---------------------------------------------------------------------------
\2\0Note that a proposed source in certain listed source
categories is ``major'' for PSD purposes if it has the potential to
emit 100 tons per year of any pollutant regulated under the Act.
Other sources are ``major'' for PSD if their emissions may exceed
250 tons per year. The regulatory definitions of ``major stationary
source'' and ``major modification'' for the PSD program are set out
at 40 CFR 52.21(b) (1), (2).
---------------------------------------------------------------------------
EPA is undertaking a comprehensive regulatory effort to revise its
PSD rules (and its nonattainment NSR program, see below) consistent
with some of the changes made to the substantive PSD program under the
revised Act (and as a part of a broader reform initiative). Since these
revised rules have not yet been promulgated, EPA has issued detailed
guidance addressing transitional and interim implementation issues
associated with the changes made by the 1990 Amendments. See 57 FR
18070 at 18074-77 (April 28, 1992) (Appendix D--``New Source Review
(NSR) Program Transitional Guidance,'' March 11, 1991). At least until
any further guidance is provided in EPA's NSR rulemaking, EPA's review
and issuance of PSD permits for applicable sources proposing to locate
on Tribal lands will be in accordance with the previously-issued PSD
transitional permitting guidance, today's guidance, and 40 CFR 52.21,
to the extent that the existing provisions of 40 CFR 52.21 are
consistent with the amended Act.21 See section 193 of the Act.
---------------------------------------------------------------------------
\2\1The 1977 Amendments to the CAA authorized Indian tribes to
redesignate the classification of lands within the exterior
boundaries of a reservation for PSD planning purposes. Section
164(a), 42 U.S.C. 7474(c); Nance v. EPA, 645 F.2d 701 (9th Cir.
1981), cert. den'd, 451 U.S. 1081 (1981). Area classifications for
PSD determine the maximum increment of degradation that is
permissible in a clean air area. Tribal authority to redesignate
areas for this purpose is set forth in 40 CFR 52.21. Tribes continue
to have this authority under the Act as amended in 1990.
---------------------------------------------------------------------------
Federal NSR Permitting. 40 CFR 52.24(c) provides that 40 CFR part
51, Appendix S (``Offset Ruling'') governs the issuance of NSR permits
(required for the construction and operation of new and modified major
stationary sources in nonattainment areas) where approved State rules
are not in place. The Offset Ruling sets out EPA's interpretation
regarding the conditions that are designed to ensure that sources and
source modifications subject to the NSR requirements will be controlled
to the greatest degree possible and that more than equivalent
offsetting emission reductions will be obtained from existing sources,
thus ensuring progress toward achievement of the NAAQS.
The 1990 Amendments to the CAA added new provisions to the Act
addressing the substantive NSR permitting requirements. See, e.g.,
sections 173, 182 and 189(b)(3) of the Act, 42 U.S.C. 7503, 7511a and
7513a(b)(3). As with the new changes to the PSD program, EPA has issued
guidance addressing the implementation of the revised nonattainment NSR
requirements in the period before EPA's comprehensive regulations are
adopted. See 57 FR 13498 (April 16, 1992); 57 FR 18070, 18075-77 (April
28, 1992) (Appendix D--``New Source Review (NSR) Program Transitional
Guidance,'' March 11, 1991); ``New Source Review (NSR) Program
Supplemental Transitional Guidance on Applicability of New Part D NSR
Permit Requirements'' (Sept. 3, 1992). In the interim period before EPA
issues further guidance through its Federal nonattainment NSR
rulemaking to implement the amended Act, EPA intends to conduct
nonattainment NSR permitting on Tribal lands consistent with the Offset
Ruling and the transitional EPA guidance addressing the revisions to
the Act.
6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs
This discussion explains how the regulations at 40 CFR Part 70
implementing the Title V operating permit program would be affected by
today's proposed action. EPA is currently developing Federal rules to
be codified in 40 CFR Part 71 that will authorize direct Federal
implementation of Title V permit program requirements for States and
Tribes that lack adequate program coverage.
Program Submittal Deadlines and Processing. Program submittal
deadlines are set out at 40 CFR 70.4(a). Tribes will not be compelled
to develop and submit Title V permit programs to EPA for approval. 40
CFR 70.4(e) addresses the processing of Title V program submittals. Any
Tribal submittal that is incomplete or disapproved will be returned to
the Tribe following such determination. To the extent possible, EPA
will work with the Tribe to remedy deficiencies in the Tribal program.
However, the timeframes governing EPA's processing of Tribal submittals
will be the same as those applicable to State submittals.
Program Coverage. The regulations call for States to issue permits
that assure compliance with ``each applicable requirement * * * by all
part 70 sources''. 40 CFR 70.4(b)(3)(i); see also 40 CFR 70.6(a)(1)
(``[e]ach permit issued under this part shall include * * * [e]mission
limitations and standards * * * that assure compliance with all
applicable requirements at the time of permit issuance''). Approvable
Tribal programs must address all affected Part 70 sources within a
Tribe's jurisdiction.
Deadlines for Permit Applications and Processing of Applications.
40 CFR 70.5(a) requires the owner or operator of Part 70 sources to
submit applications within 12 months of becoming subject to the
program. 40 CFR 70.7(a)(2) requires the permitting authority to act on
an application within 18 months of receipt. To ensure that permits are
expeditiously submitted and reviewed, these deadlines will apply with
equal force to Tribal programs, to the extent that Tribes elect to
develop and implement such programs.
40 CFR 70.4(b)(11) requires States to have a transition plan for
acting on applications received within the first 12 months after
approval, such that the State will act on one-third of the applications
in each of the first three years of its program. This requirement
overrides the 18-month requirement for acting on applications during
the first 3 years. As discussed in Part III.B.2.e above, the 3-year
implementation requirement in section 503(c) is among the provisions of
the CAA for which EPA is not proposing to treat Tribes in the same
manner as States. For Tribal programs, this initial program phase-in
will be based on a schedule developed by the Regional Office in
conjunction with each Tribe. This case-by-case approach will ensure
that any transition adequately accounts for the scope of Tribal program
coverage, the universe of Part 70 sources and the extent of Tribal
expertise and resources. However, EPA is also proposing to provide that
in no case shall such a transitional schedule exceed 5 years from the
date of EPA's approval of the Tribal program.
Enforcement. Required enforcement authority is set out in 40 CFR
70.11. As stated above, Federal law prohibits Indian Tribes from
holding criminal trials of or imposing criminal penalties on non-
Indians, in the absence of a treaty or other agreement to the contrary.
Oliphant, at 435 U.S. 191. In addition, Federal law prohibits Indian
Tribes from imposing for conviction of any one offense a criminal fine
greater than $500. 25 U.S.C. section 1302(7). Tribes requesting Title V
program approval will be required to enter into formal Memorandum of
Agreement with EPA, through which it would agree to provide for the
timely referral of criminal enforcement matters to the appropriate EPA
Regional Administrator.
Operational Flexibility. The three operational flexibility
provisions at 40 CFR 70.4(b)(12) will be optional for Tribes as will 40
CFR 70.6(a)(8), (10) (emissions trading in the permit) and 40 CFR
70.6(a)(9) which requires States to include alternative operating
scenarios, if requested, in their permits.
Permit Issuance, Revisions Procedures. Generally, for the
procedures governing permit issuance and revision, EPA will treat
Tribes in the same manner as it treats States. While Tribes will have
some flexibility regarding the form and manner of public notice
requirements under 40 CFR 70.7(h), the minimum period for public notice
will be 30 days for Tribes as with States.
Tribes, like States, must have authority to reopen permits for
cause, as required by 40 CFR 70.7(f).
Application content requirements. These requirements are set out in
40 CFR 70.5. These requirements will apply with equal force to sources
within Tribal jurisdiction, since EPA believes that the information
specified in this provision constitutes the minimum information that is
essential to the issuance of an effective permit.
Permit content requirements. These are found in 40 CFR 70.6(a),
(c). The permit content requirements will generally apply to Tribes in
the same manner in which they apply to States. These remaining
requirements are necessary to an effective permit. These requirements
include 40 CFR 70.6(a)(3), which requires the State and, under today's
proposal, the Tribal permitting authority to insert monitoring
requirements into the permit where the underlying monitoring
requirement is deficient.
Judicial Review. 40 CFR 70.4(b)(3)(x)-(xii) requires States to
provide an opportunity for judicial review of a final permit action and
for the State's failure to take such final action. Tribes will have to
meet the same requirements.
EPA Veto and Citizen Petition Process. 40 CFR 70.8 requires States
to provide EPA with a 45-day review period and opportunity for veto.
The provision further specifies that no permit may issue prior to the
expiration of that period or at all over an EPA veto. It also provides
citizens the right to petition EPA to veto a State-issued permit. These
provisions will apply with equal force to Tribal programs.
40 CFR 70.8(b) also requires that State programs provide that the
permitting authority notify any affected States of each draft permit.
This requirement to provide notice will apply with equal force to
Tribal programs. Further, any State or Tribal permitting authority will
provide notice to any affected Tribe in the same manner as the
regulations require notification to affected States. See Part III.B.4
above.
General Revisions. References to States and State officials will
include Tribes and corresponding Tribal officials.
7. 40 CFR Part 81--Designation of Areas for Air Quality Planning
Purposes.
EPA is proposing conforming regulatory changes to part 81, in light
of today's proposal to treat Indian Tribes in the same manner in which
it treats States under the air quality designation provisions set out
at section 107 of the Act.
Pursuant to section 107(d)(3) of the CAA EPA would notify eligible
Indian Tribes that EPA has information indicating that an air quality
designation for an Indian Reservation should be revised. Then, as with
the Governor of an affected State, the relevant Tribal leader would
have 120 days to reply to EPA. In addition, eligible Indian Tribes
would on their own initiative have authority to submit a redesignation
request to EPA for approval in the same way that States and the
relevant Governors are authorized to under section 107(d)(3)(D) of the
Act.
EPA is proposing to add explicit definitions of Indian Reservation,
Indian Tribe and State to 40 CFR Part 81. EPA is also proposing
revisions to subpart C of Part 81 to reflect the authority that
eligible Indian Tribes may have to initiate revisions to designations.
Future air quality designations for eligible Tribes will be
codified under an entry for the affected Indian Tribe in subpart C,
Part 81 that is the same as State air quality designations under Part
81.
IV. Federal Financial Assistance
A. Sources of Funding Assistance
Financial assistance for Indian Tribes under the Clean Air Act is
available via two principal authorities: grants for the support of air
pollution planning and control programs under section 105 (42 U.S.C.
7405); and grants for investigations, demonstrations and studies into
the causes, effects, extent, prevention and control of air pollution
under section 103 (42 U.S.C. 7403).
In addition to these potential sources of funds under the Clean Air
Act, EPA can provide Tribes funding assistance for air quality work
under the Agency's Indian Environmental General Assistance Grants
Program (40 CFR part 35, subpart Q). These grants provide funds to
Tribes for planning, developing and establishing the capacity to
implement environmental programs on Indian lands, regardless of the
program's environmental media.
Each of these assistance and fee programs carries various statutory
and/or administrative requirements which are discussed and explained in
this portion of the preamble. Proposed regulatory revisions are set out
at the end of this notice.
B. Tribal Eligibility for Air Grant Assistance
In today's action, EPA is proposing to modify certain regulatory
and administrative limitations on the manner in which Indian Tribes
qualify for and obtain financial assistance under the Act. EPA also
seeks comment from interested parties on options in meeting the non-
Federal matching requirements for grants obtained under section 105
authority. The financial assistance options are described below.
1. Section 103 Air Assessment Grants
Tribes may apply for grant assistance to assess reservation air
quality conditions under authority of section 103(b)(3) of the Act.
Section 103(b)(3) allows EPA to fund investigations, research, surveys,
and studies concerning any specific problem of air pollution in
cooperation with any air pollution control agency. Tribes may undertake
specific projects to assess Tribal air quality conditions at any time.
Typically, Tribes will undertake such projects as an initial step,
prior to initiating development and adoption of Tribal regulations to
control air resources. Section 103(b)(3) grant funds are not available
for developing Tribal capacity.
Funds provided under section 103 are available to Tribes at up to a
95% Federal share. Thus each recipient must contribute at least five
percent of the total allowable project costs. The Agency believes that
the five percent cost sharing requirement should be retained.
EPA rules limit award of section 103 grants to a maximum of five
years for any one project period. 40 CFR 40.125-1. This should allow a
reasonable amount of time for Tribal recipients of assistance to assess
the nature of their air quality and determine the extent of any air
quality problems. However, the Agency will carefully consider requests
for deviations under 40 CFR 31.6 for extensions of grant project
periods. Further, section 103 is available for multiple project
periods. Finally, Tribes that have received previous section 103 grants
will remain eligible for future grants to fund appropriate projects at
any time. The determination of each Tribal applicant's continued
eligibility and the appropriate authority of award will be the
responsibility of the appropriate Regional Administrator. As this
suggests, Tribes not establishing eligibility to be treated in the same
manner as States under section 301(d) will remain eligible, as they are
currently, for assistance under section 103(b)(3).
2. Section 105 Air Program Grants
The Agency encourages eligible Tribes to apply for continuing
environmental assistance under authority of section 105 and 301(d) of
the Act, particularly after a comprehensive assessment of reservation
air quality conditions. Section 105 allows EPA to make grants for
implementing programs for the prevention and control of air pollution
or implementation of air quality standards.
Currently, in order to be eligible to receive a grant under section
105, a recipient must meet the definition of an air pollution control
agency specified in section 302(b) of the Act. This definition includes
``[a]n agency of an Indian tribe.'' See section 302(b)(5). Thus,
section 302(b)(5) authorizes 105 grants to Tribes that have not
established their eligibility to be treated in the same manner as
States.
The Act expressly provides that until the promulgation of these
regulations, EPA may continue to provide section 105 grants to eligible
Tribes on this basis. See section 301(d)(5). EPA believes that section
301(d)(5) was intended to ensure that Tribes would be able to receive
financial assistance while this regulation was being developed. The
Agency does not believe that this provision, which on its face is
designed to ensure Tribal access to funds, must be read to require that
EPA cease awarding section 105 grants to Tribes not meeting the
eligibility requirements after this regulation is issued.
Consistent with this legal interpretation, this regulation provides
two avenues for Tribes to obtain section 105 assistance. A Tribe that
does not establish eligibility for treatment in the same manner as a
state under section 301 but that is ``an agency of an Indian tribe,''
and therefore meets the definition of an ``air pollution control
agency'' under section 302(b)(5), can obtain 105 funds, subject to the
same limitations that apply to other 105 grant recipients. These
limitations include the statutory requirement that the grant recipient
contribute matching funds for 40% of the allowable project costs.
Alternatively, Tribes that establish their eligibility to be
treated in the same manner as States under section 301(d) may, like
States, receive section 105 financial assistance. However, assistance
to Tribes pursuant to 301(d) can be provided without being subject to
every limitation that applies to such grants when made to States.
Section 301(d)(4) expressly provides that, in cases where it is not
appropriate to treat Tribes as identical to States, EPA ``may provide,
by regulation, other means by which the [Agency] will directly
administer such provisions so as to achieve the appropriate purpose.''
EPA believes that requiring the 40% match as a prerequisite for
assistance under section 105 could impose an undue financial burden on
Tribes; the Agency further believes it can best administer section 105
to achieve the purpose of maximizing tribal access to this assistance
by providing relief from the cost share requirement. However, based on
statutory language, this special relief will, as noted above, only be
available for Tribes that have established their eligibility to be
treated in the same manner as states and therefore are eligible for
financial assistance pursuant to section 301(d).
This proposal seeks comments on the appropriate level of Tribal
cost share for a section 105 grant match, from a minimum of 5% to a
maximum of 40%. This proposal also seeks comments on the establishment
of a phase-in period for Tribes to meet whatever match is ultimately
required for section 105 grants.
A 40% match of air grant funds under section 105 is currently
required from States. However, when these air grants were originally
awarded some 25 years ago, a 25% State match was required. Given the
lack of Tribal financial resources, there is concern that even this
lower level of Tribal match may not be appropriate in many instances.
In addition, the Agency believes it may be appropriate to allow a Tribe
establishing eligibility to be treated in the same manner as a state to
begin receiving 105 assistance with a lower match, which would
gradually be phased upward until it reaches some appropriate level.
During the development of the regulation, EPA discussed the option
of developing a sliding scale, with differing levels of match based on
tribal demonstrations of ability to pay. This option is not being
proposed in this regulation, due to the Agency's concern that requiring
some tribes to pay a higher match than others could create barriers to
participation by those tribes, and that all tribes experience resource
constraints.
The Agency also recognizes that its approach should be consistent
with President Clinton's April 29 Presidential Memorandum on
``Government-to-Government Relations with Native American Tribal
Governments.'' 59 FR 22,951 (May 4, 1994). That Memorandum directs
agencies to ``take appropriate steps to remove any procedural
impediments to working directly and effectively with tribal governments
on activities that affect the * * * governmental rights of the
tribes.'' The Agency believes minimizing the burdens to participation
by all tribes may be the approach most consistent with this directive.
Although the Agency is not proposing a sliding scale, it requests
comments on whether such an approach might be feasible and the criteria
that could be used to determine the matching requirement for each grant
recipient. The Agency solicits comments on: An appropriate initial
match level equal to or exceeding five percent; the length appropriate
for a phase-in period (if any) of the match; the rate at which the
match would be phased upward; and an appropriate level for a permanent
match requirement.
The Clean Air Act also establishes one purpose for which Tribes may
not be treated in the same manner as states. Under section 301(d)(1)(A)
Tribes may not be treated in the same manner as States for purposes of
section 105(b)(2) which ensures that each State applying for assistance
have made available to it for application (but not necessarily for
award) a minimum of one half of one percent of the total section 105
amount annually appropriated under the Act.
3. Tribal Agencies and Consortia
Section 103 and 105 assistance is currently available to an
individual Tribe because it constitutes an air pollution control agency
under section 302(b)(5). The Agency also believes it may be appropriate
to provide assistance to groups of tribes, typically tribes with air
resources that are either contiguous or similar in their
characteristics, when those tribes join into consortia for the purpose
of applying for and managing the air quality financial assistance
described above. A consortium is a partnership between two or more
Indian tribal governments authorized by their governing bodies. Tribes
can join into consortia in circumstances they find appropriate. The
``economies of scale'' made possible through Tribal consortia
arrangements may allow for the assumption of air resource management
responsibilities that may not otherwise be possible with small, single-
Tribe environmental agencies.
Consortia will have discretion in demonstrating how they will meet
the matching funds requirement. Therefore, when a consortium reaches
the point that it must provide matching funds to obtain grant funds,
the consortium may combine its resources to meet the requirement in any
manner it deems appropriate.
C. Use of EPA General Assistance Grants
EPA has recently issued regulations governing the use of Indian
Environmental General Assistance Grants as required under 42 U.S.C.
4368b. Indian Environmental General Assistance Program Act of 1992; 42
U.S.C. 4368b, (58 FR 63876, December 2, 1993) codified at 40 CFR part
35, subpart Q. The regulations establish requirements for applying for
and utilizing general assistance funds. The Indian Environmental
General Assistance Grants may be used by Tribes to fund program
development activities in various environmental media, including air,
and are thus considered to be an important means of establishing
overall Tribal environmental program capability. Moreover, the award of
these grants in no way precludes a Tribe from applying for, and being
awarded, air grant assistance under section 103 or section 105 of the
Act.
D. Additional Administrative Requirements
Each Tribal application for assistance must still meet the Agency's
general administrative requirements for grants which are set forth in
more detail in 40 CFR Parts 31, 32 and 34 and which are not modified by
this regulation. Additional requirements specific to section 105 air
grants are detailed in 40 CFR 35 and, for section 103, in 40 CFR Part
40.
V. Miscellaneous
A. Executive Order (EO) 12866
Section 3(f) of EO 12866 defines ``significant regulatory action''
to mean any regulatory action that is likely to result in a rule that
may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive order.
This proposed rule was determined not to be a significant
regulatory action. A draft of this proposed rule was nevertheless
reviewed by the Office of Management and Budget (OMB) prior to
publication because of anticipated public interest in this action
including potential interest by Indian Tribes and State/local
governments.
EPA has placed the following information related to OMB's review of
this proposed rule in the public docket referenced at the beginning of
this notice:
(1) Materials provided to OMB in conjunction with OMB's review of
this proposed rule; and
(2) Materials that identify substantive changes made between the
submittal of a draft proposed rule to OMB and this notice, and that
identify those changes that were made at the suggestion or
recommendation of OMB.
B. Regulatory Flexibility Act (RFA)
Under the RFA, 5 U.S.C. sections 601-612, EPA must prepare, for
rules subject to notice-and-comment rulemaking, initial and final
Regulatory Flexibility Analyses describing the impact on small
entities. The RFA defines small entities as follows:
--Small businesses. Any business which is independently owned and
operated and is not dominant in its field as defined by Small Business
Administration regulations under section 3 of the Small Business Act.
--Small governmental jurisdictions. Governments of cities, counties,
towns, townships, villages, school districts or special districts, with
a population of less than fifty thousand.
--Small organizations. Any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
However, the requirement of preparing such analyses is inapplicable
if the Administrator certifies that the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities. 5 U.S.C. 605(b).
The proposed rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. Many Indian
Tribes may meet the definition of small governmental jurisdiction
provided above. However, the proposed rule does not place any mandates
on Indian Tribes. Rather, it authorizes Indian Tribes to demonstrate
their eligibility to be treated in the same manner as States under the
Clean Air Act, to submit CAA programs for specified provisions and to
request Federal financial assistance as described elsewhere in this
preamble. Further, the proposed rule calls for the minimum information
necessary to effectively evaluate Tribal applications for eligibility,
CAA program approval and Federal financial assistance. Thus, EPA has
attempted to minimize the burden for any Tribe that chooses to
participate in the programs provided in this proposed rule.
The proposed regulation will not have a significant impact on a
substantial number of small businesses. Any additional economic impact
on the public resulting from implementation of this proposed regulation
is expected to be negligible, since Tribal regulation of these
activities is limited to areas within Tribal jurisdiction and, in any
event, EPA has regulated or may regulate these activities in the
absence of Tribal CAA programs.
The proposed regulation will not have a significant impact on a
substantial number of small organizations for the same reasons that the
proposed regulation will not have a significant impact on a substantial
number of small businesses.
Accordingly, I certify that this proposed regulation, if
promulgated, will not have a significant economic impact on a number of
small entities.
C. Executive Order (EO) 12875
EO 12875 is intended to reduce the imposition of unfunded mandates
upon State, local and Tribal governments. To that end, it calls for
Federal agencies to refrain, to the extent feasible and permitted by
law, from promulgating any regulation that is not required by statute
and that creates a mandate upon a State, local, or Tribal government,
unless funds for complying with the mandate are provided by the Federal
government or the Agency first consults with affected State, local and
Tribal governments.
The issuance of this proposed rule is required by statute. Section
301(d) of the CAA directs the Administrator to promulgate regulations
specifying those provisions of the Act for which it is appropriate to
treat Indian Tribes as States. Moreover, this proposed rule would not
place mandates on Indian Tribes. Rather, as discussed in section V.B
above, this rule authorizes or enables Tribes to demonstrate their
eligibility to be treated in the same manner as States under the Clean
Air Act and to submit CAA programs for the provisions specified by the
Administrator. Further, the proposed rule also explains how Tribes
seeking to develop and submit CAA programs to EPA for approval may
qualify for Federal financial assistance.
D. Paperwork Reduction Act
OMB has approved the information collection requirements pertaining
to grants applications contained in this rule under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and has assigned
OMB control number 2030-0020.
This collection of information pertaining to the grants application
process has an estimated reporting burden averaging 29 hours per
response and an estimated annual recordkeeping burden averaging 3 hours
per respondent. These estimates include time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The information collection requirements in this proposed rule
pertaining to an Indian Tribe's application for eligibility to be
treated in the same manner as a State or ``treatment as a State'' have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 3501, et seq. An Information Collection Request document has
been prepared by EPA (ICR No. 1676.01) and a copy may be obtained from
Sandy Farmer, Information Policy Branch; EPA; 401 M St., SW. (Mail Code
2136); Washington, DC 20460 or by calling (202) 260-2740.
This collection of information for Treatment in the Same Manner as
States (TISMAS) to carry out the Clean Air Amendments has an estimated
reporting burden of 20 annual responses, averaging 40 hours per
response and an estimated annual recordkeeping burden averaging 800
hours. These estimates include time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding these burden estimates or any other aspect
of these collections of information, including suggestions for reducing
this burden to Chief, Information Policy Branch; EPA; 401 M St., SW.
(Mail Code 2136); Washington, DC 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' The
final rule will be accompanied with responses to OMB or public comments
on the information collection requirements contained in this proposal.
VI. Request for Public Comments
EPA requests public comments on all aspects of today's proposal,
including the following: EPA's proposed interpretation of the Clean Air
Act as delegating to Tribes jurisdiction over all air resources within
the exterior boundaries of the reservation; EPA's proposed
interpretation of the term ``reservation''; EPA's proposed
interpretation that in enacting the CAA, Congress found that the
activities regulated under the Act constitute a class of activities
that, if left unregulated, could have serious and substantial adverse
effects on public health and welfare, and accordingly, that these
activities would generally be within the inherent civil regulatory
authority of Tribes; EPA's position regarding Federally-administered
Clean Air Act programs to provide protection for Tribal air resources;
EPA's proposed implementation of its policy for streamlining
eligibility determinations; the CAA provisions for which EPA is
proposing to treat Indian Tribes as States, and the proposed exceptions
that EPA has identified in this rule; EPA's general approach to
encourage Tribal participation by allowing Tribes to submit reasonably
severable portions of CAA programs; EPA's proposed procedures for
reviewing Tribal air programs, including Tribal implementation plans
developed under Title I of the CAA; EPA's proposed revisions to its
implementing regulations, and; EPA's proposed administration of Federal
financial assistance to Tribes.
VII. Electronic Filing of Comments
A public docket has been established for this proposed rule under
docket number ``A-93-3087'' (including comments and data submitted
electronically as described below). The public docket is located in
M1500, 401 M Street, Washington, DC 20460. The information contained in
this public docket, including printed, paper versions of electronic
comments is available for inspection from 8 a.m. to 4 p.m., Monday thru
Friday, excluding legal holidays. Starting October 1, 1994, the docket
will be open 8 a.m. to 5:30 p.m., excluding legal holidays.
As part of an interagency ``streamlining'' initiative, EPA is
experimenting with submission of public comments on selected rulemaking
actions electronically through the Internet in addition to accepting
comments in traditional written form. This proposed rule is one of the
rulemaking actions selected by EPA for this experiment. From the
experiment, EPA will learn how electronic commenting works, and any
problems that arise can be addressed before EPA adopts electronic
commenting more broadly in its rulemaking activities. Electronic
commenting through posting to the EPA Bulletin Board or through the
Internet using the ListServe function raise some novel issues that are
discussed below in this Section.
To submit electronic comments, persons can either ``subscribe'' to
the Internet ListServe application or ``post'' comments to the EPA
Bulletin Board. To ``Subscribe'' to the Internet ListServe application
for this proposed rule, send an e-mail message to:
[email protected] that says `` Subscribe RIN-2060-AE95
.'' Once you are subscribed to the ListServe,
comments should be sent to: RIN-2060-AE[email protected].
For online viewing of submissions and posting of comments, the
public access EPA Bulletin Board is also available by dialing 202-488-
3671, enter selection ``DMAIL,'' user name ``BB____USER'' or 919-541-
4642, enter selection ``MAIL,'' user name ``BB____USER.'' When dialing
the EPA Bulletin Board type at the opening message. When the
``Notescaret]'' prompt appears, type ``open RIN-2060-AE95'' to
access the posted messages for this document. To get a listing of all
files, type ``dir/all'' at the prompt line. Electronic comments can
also be sent directly to EPA at: [email protected].
To obtain further information on the electronic comment process, or
on submitting comments on this proposed rule electronically through the
EPA Bulletin Board or the Internet ListServe, please contact John A.
Richards (Telephone: 202-260-2253; FAX: 202-260-3884; Internet:
[email protected]).
Persons who comment on this proposed rule, and those who view
comments electronically, should be aware that this experimental
electronic commenting is administered on a completely public system.
Therefore, any personal information included in comments and the
electronic mail addresses of those who make comments electronically are
automatically available to anyone else who views the comments.
Commenters and others outside EPA may chose to comment on the
comments submitted by others using the RIN-2060-AE95 ListServe or the
EPA Bulletin Board. If they do so, those comments as well will become
part of EPA's record and included in the public docket for this
rulemaking. Persons outside EPA wishing to discuss comments with
commenters or otherwise communicate with commenters but not have those
discussions or communications sent to EPA and included in the EPA
rulemaking record and public docket should conduct those discussions
and communications outside the RIN-2060-AE95 ListServe or the EPA
Bulletin Board.
EPA will transfer all comments received electronically in the RIN-
2060-AE95 ListServe or the EPA Bulletin Board, in accordance with the
instructions for electronic submission, into printed, paper form as
they are received and will place the paper copies in the official
rulemaking docket which will also include all comments submitted
directly in writing. All the electronic comments will be available to
everyone who obtains access to the RIN-2060-AE95 ListServe or the EPA
Bulletin Board; however, the official rulemaking docket is the paper
docket maintained at the address in ADDRESSES at the beginning of this
document. (Comments submitted only in written form will not be
transferred into electronic form and thus may be accessed only by
reviewing them in the EPA Docket as described above.)
Because the electronic comment process is still experimental, EPA
cannot guarantee that all electronic comments will be accurately
converted to printed, paper form. If EPA becomes aware, in transferring
an electronic comment to printed, paper form, of a problem or error
that results in an obviously garbled comment, EPA will attempt to
contact the comment submitter and advise the submitter to resubmit the
comment either in electronic or written form. Some commenters may
choose to submit identical comments in both electronic and written form
to ensure accuracy. In that case, EPA requests that commenters clearly
note in both the electronic and written submissions that the comments
are duplicated in the other medium. This will assist EPA in processing
and filing the comments in the rulemaking docket.
As with ordinary written comments, EPA will not attempt to verify
the identities of electronic commenters nor to review the accuracy of
electronic comments. EPA will take such commenters and comments at face
value. Electronic and written comments will be placed in the rulemaking
docket without any editing or change by EPA except to the extent
changes occur in the process of converting electronic comments to
printed, paper form.
EPA will address significant electronic comments either in a notice
in the Federal Register or in a response to comments document placed in
the rulemaking docket for this proposed rule. EPA will not respond to
commenters electronically other than to seek clarification of
electronic comments that may be garbled in transmission or conversion
to printed, paper form as discussed above. Any communications from EPA
employees to electronic commenters, other than those described in this
paragraph, either through Internet or otherwise are not official
responses from EPA.
List of Subjects
40 CFR Part 35
Environmental protection, Grant programs--environmental protection,
Grant programs--Indians, Indians, Reporting and recordkeeping
requirements.
40 CFR Part 49
Air pollution control, Environmental protection, Air pollution
control--Tribal authority, Air pollution control--Tribal eligibility
criteria, Indian tribes.
40 CFR Part 50
Air pollution control, Carbon monoxide, Environmental protection,
Lead, Nitrogen dioxide, Ozone, Particulate matter, and Sulfur oxides.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: August 18, 1994.
Carol M. Browner,
Administrator.
Addendum A to Preamble--General Description of Clean Air Act
Programs
The Clean Air Act is codified in the United States Code (U.S.C.) at
42 U.S.C. 7401-7671q. There are six different Titles that comprise the
Act as codified.1 The following discussion contains a broad
overview of each Title with the objective of providing a general road
map to the Clean Air Act. The discussion is not, and is not intended to
be, a comprehensive and detailed discussion of Clean Air Act
requirements.
---------------------------------------------------------------------------
\1\The Clean Air Act is Chapter 85, Title 42 of the U.S. Code.
The Titles of the Act are actually subchapters of the Code. To avoid
confusion, these subchapters will be referred to herein as Titles of
the Act.
---------------------------------------------------------------------------
To help illustrate the potential effect of today's proposal, the
discussion at times refers to Tribes as if the authority proposed today
was in effect. However, this authority will not be in place until EPA
takes final action on today's proposed rule. The process preceding
final action includes the consideration of public comments on today's
proposal that may alter the final rule.
Title I--National Ambient Air Quality Standards and Stationary Source
Requirements.
EPA has established national ambient air quality standards (NAAQS)
for certain air pollutants for the protection of the public health
(``primary'' standards) and welfare (``secondary'' standards). CAA
section 109, 42 U.S.C. 7409. EPA establishes these standards after a
thorough review of the latest scientific studies and literature
indicating the kind and extent of identifiable effects on public health
or welfare which may be expected from the presence of such pollutants
in the ambient air in varying quantities. CAA section 108, 42 U.S.C.
7408. EPA has established health and welfare NAAQS for six different
pollutants: ozone, carbon monoxide, particulate matter, sulfur dioxide,
nitrogen dioxide, and lead. These standards are codified in 40 CFR Part
50.
Areas nationwide are ``designated'' based on whether they meet the
NAAQS. Areas that do not meet the NAAQS are designated
``nonattainment.'' CAA section 107, 42 U.S.C. 7407. States containing
such areas are required to develop State implementation plans (SIPs)
which must bring the areas into attainment as expeditiously as
practicable. If EPA finalizes today's rule as proposed, Tribes may
submit such implementation plans (``TIPs''). Title I contains general
requirements that SIPs and, as appropriate, TIPs must meet (CAA section
110(a)(2), 42 U.S.C. 7410(a)(2)) as well as planning provisions (e.g.,
inventorying of emissions) and control requirements applicable to
existing stationary sources in nonattainment areas. CAA sections 171-
192, 42 U.S.C. 7501-7514a.
EPA has issued detailed guidance that sets out its preliminary
views on the implementation of the air quality planning requirements
applicable to areas that are not in attainment with the NAAQS. This
guidance is titled the ``General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990'' (or ``General
Preamble''). See 57 FR 13,498 (April 16, 1992) and 57 FR 18,070 (April
28, 1992). The General Preamble has been supplemented with further
guidance on Title I requirements. See 57 FR 31,477 (July 16, 1992)
(announcing the availability of draft guidance for lead nonattainment
areas and serious PM-10 nonattainment areas); 57 FR 55,621 (Nov. 25,
1992) (guidance on NOx RACT requirements in ozone nonattainment
areas). EPA will likely issue further supplements to the General
Preamble.
Title I also contains control requirements applicable to new (or
modified) major stationary sources. ``Major'' sources are those
emitting more than a certain amount of pollutant per year. Sources
subject to the New Source Review (``NSR'') or Prevention of Significant
Deterioration (``PSD'') requirements may not initiate construction, as
it is defined under the law, without obtaining an NSR or PSD permit
from the State or Tribe (or from EPA, if the State or Tribe has not
been authorized by EPA to administer the program).
The nonattainment NSR permit program applies only in nonattainment
areas. The Act directs EPA to require States and authorizes EPA to
permit Tribes to develop NSR permit programs as part of their SIPs or
TIPs. The NSR permit program requires strict control technology and
emissions reductions from nearby sources to ``offset'' emissions
released for proposed new (or modified) major stationary sources in
nonattainment areas. E.g., CAA section 173, 42 U.S.C. 7503.
The PSD program applies to certain new or modified major stationary
sources in areas that currently have air quality meeting the NAAQS. To
prevent the air quality in these areas from significantly
deteriorating, the Clean Air Act requires States in such clean air
areas to develop permit programs that impose control requirements on
new or modified major stationary sources. The permit program must also
require an assessment of the air quality impacts of proposed sources to
ensure that new sources will not cause or contribute to an exceedance
of the NAAQS or certain allowed ``increments'' of air quality
degradation. CAA sections 160-169, 42 U.S.C. 7470-7479. Since all areas
of the country meet at least one of the NAAQS, all States are required
to have a PSD program for areas within their jurisdiction. EPA
administers PSD programs for States that have failed to submit
approvable programs. In today's action, EPA is proposing to authorize
Tribes to submit PSD programs for EPA approval.
There is also a minor source permit program, under CAA section
110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C), and 40 CFR 51.160-164 which
requires SIPs to include a program regulating the modification and
construction of any stationary source, regardless of size or attainment
status, as necessary to assure that the NAAQS are achieved. In today's
action, EPA is proposing to authorize Tribes to include minor source
permit programs as part of their TIPs in the same manner as States.
Finally, EPA also issues new source performance standards
(``NSPS'') that affected new or modified stationary sources must meet
in both attainment and nonattainment areas. States are required to
submit, and EPA is proposing that Tribes be authorized to submit, plans
similar to SIPs or TIPs that provide for the implementation and
enforcement of certain requirements for certain pollutants regulated by
NSPS. CAA sections 111(d), 129, 42 U.S.C. 7411(d), 7429.
Conformity. Section 176 of the Act, 42 U.S.C. 7506, prohibits
Federal agencies from supporting or providing financial assistance for
activities that do not conform to an approved SIP or TIP. The
restriction extends to State, Tribal and local transportation plans or
projects that are approved or funded by a Federal agency.
Visibility. Title I also requires States in which certain mandatory
``class I'' Federal areas (certain national parks, wildernesses and
international parks as specified in section 162(a), 42 U.S.C. 7472(a))
are located, or States whose emissions may affect such areas, to
include provisions in their SIPs to remedy and prevent visibility
impairment in those areas. CAA sections 169A & 169B, 42 U.S.C. 7491 &
7492. In today's action, EPA is proposing to authorize Tribes to submit
visibility TIPs.
Interstate Pollution Provisions. Section 126 of the Act, 42 U.S.C.
7426, authorizes States to petition the Administrator to find that a
major source or group of stationary sources in one State emits air
pollutants that contribute significantly to nonattainment, interfere
with maintenance of the NAAQS, or interfere with measures under the PSD
or visibility protection programs in another State. See also section
110(a)(2)(D) of the Act. EPA is proposing that these provisions apply
to Tribes in the same fashion that they apply to States so that a Tribe
or State may take such action to remedy pollution from an upwind Tribe
or State.
In addition, sections 169B, 176A and 184, 42 U.S.C. 7492, 7506a &
7511c, were added to the Act in the 1990 Amendments and contain
provisions for cooperatively addressing interstate pollution problems.
These provisions authorize (and, in some instances, direct) the
establishment of interstate transport commissions to address regionwide
visibility impairment, ozone pollution and other NAAQS pollution
issues. The Governors of the affected States (or their designees)
represent the State members of the commissions. Generally, the
commissions develop and transmit recommendations to EPA on the specific
issues the commissions are charged with addressing. Thus, the
commissions provide a vehicle for facilitating interstate cooperation
and input in addressing air pollution problems that require a regional
solution due to pollutant transport across political boundaries. In
today's action, EPA is proposing to extend this authority to Tribes.
Among other things, Tribes would be authorized to petition the
Administrator for establishment of commissions and Tribal leaders
included in commission membership in the same fashion as State leaders.
Hazardous Air Pollutants. The provisions governing the emissions of
hazardous air pollutants are also contained in Title I. EPA is directed
to issue control technology standards (``maximum achievable control
technology'' or ``MACT'') covering 189 hazardous air pollutants. CAA
section 112, 42 U.S.C. 7412. Section 112 also contains provisions to
prevent and minimize the consequences of accidental releases of, among
other things, extremely hazardous substances. States or, as proposed
today, Tribes may develop and submit to EPA for approval, programs
implementing both the hazardous air pollutant emission standards and
accidental release requirements.
Enforcement and Information Collection. The Clean Air Act general
Federal enforcement provisions are contained in Title I. Section 113 of
the CAA, 42 U.S.C. 7413, authorizes the imposition of both civil and
criminal penalties for violation of Clean Air Act requirements. It also
contains provisions authorizing EPA to pay cash awards to persons
furnishing information leading to a criminal conviction or certain
civil penalties.
Section 114 of the Act, 42 U.S.C. 7414, contains provisions
granting EPA broad authority to require, among other things,
recordkeeping, monitoring and right of entry and inspection. It also
contains provisions authorizing EPA to delegate this authority to
States and, as proposed in today's rule, Tribes.
Federal Facilities. Section 118 of the CAA, 42 U.S.C. 7418,
provides that Federal facilities must comply with all Federal, State
and local air pollution requirements to the same extent as
nongovernmental agencies unless expressly exempted by the President.
EPA is proposing to extend this authority to Tribal air pollution
requirements.
Financial Assistance. The provisions governing the issuance of
Federal financial assistance to air pollution control agencies are set
out in Title I. CAA sections 103 & 105, 42 U.S.C. 7403 & 7405. The
phrase ``air pollution control agency'' for this purpose is, in turn,
defined in CAA section 302(b), 42 U.S.C. 7602(b), and expressly
includes ``[a]n agency of an Indian tribe.'' An ``Indian tribe'' is
defined in CAA section 302(r). See discussion below under Title III/
Definitions. Issues associated with the award of Federal financial
assistance to Tribes are addressed in more detail in the SUPPLEMENTARY
INFORMATION section of this notice.
Title II--Mobile Sources
This Title contains the provisions of the Clean Air Act addressing
mobile sources (e.g., automobiles, trucks, off-road vehicles). It
contains provisions addressing motor vehicle emission standards as well
as standards for aircraft and non-road vehicles and engines. See, e.g.,
CAA sections 202, 213 & 231, 42 U.S.C. 7521, 7547 & 7571. It also
provides for the regulation of motor vehicle and other fuels, including
registration requirements, requirements for new fuels and fuel
additives as well as provisions for reformulated gasoline and low
sulfur diesel fuel. CAA section 211, 42 U.S.C. 7545.
Significant provisions of this Title preempt in whole or in part
the issuance of State standards. For example, section 209 of the CAA,
42 U.S.C. 7543, precludes any State or political subdivision from
controlling emissions from new motor vehicles. EPA may waive this
prohibition for California, and other States may adopt California
standards. CAA sections 209(b) & 177, 42 U.S.C. 7543 & 7507. Similarly,
except in limited circumstances, States are precluded from enforcing
controls on motor vehicle fuels that are different from those required
by EPA. CAA section 211(c)(4), 42 U.S.C. 7545(c)(4). Therefore, the
motor vehicle and fuel requirements in Title II generally are issued
and administered by EPA unless the statute contemplates and a State
qualifies for special treatment or waiver of the preemption provisions.
However, some Title II provisions are administered by the States
through the SIP system established under Title I. For example, States
containing certain carbon monoxide and ozone nonattainment areas are
required to develop and submit to EPA for approval a SIP revision
establishing a clean-fuel vehicle program for motor vehicle fleets. CAA
section 246, 42 U.S.C. 7586. States containing certain carbon monoxide
nonattainment areas are required to develop and submit to EPA for
approval a SIP revision establishing an oxygenated gasoline program.
CAA section 211(m), 42 U.S.C. 7545(m). In today's action, EPA is
proposing to extend this State-implemented authority to Tribes.
Title III--Citizen Suits
Section 304 of the Act, 42 U.S.C. 7604, authorizes any person who
provides the minimum required advance notice to bring a civil action
against: any person, including any governmental entity or agency, who
is in violation of an emission limit; the Administrator of EPA where he
or she fails to carry out a non-discretionary duty under the Clean Air
Act or has unreasonably delayed agency action; any person who proposes
to construct or constructs any new or modified major stationary source
without a NSR or PSD permit that meets the requirements of the Act
(described previously); and any person who is alleged to be in
violation of such permit. The term ``person'' ``includes an individual,
corporation, partnership, association, State, municipality, political
subdivision of a State, and any agency, department, or instrumentality
of the United States and any officer, agent, or employee thereof.''
Section 302(e), 42 U.S.C. 7602(e). The Federal district courts are
granted jurisdiction over such legal action. In today's action, EPA is
proposing that Tribes be subject to these provisions in the same manner
that States are.
Judicial Review of Final Agency Action. Section 307(b), 42 U.S.C.
7607(b), contains the provisions governing judicial review of final
agency action issuing or approving regulations. Section 307(b)
specifies in which U.S. Court of Appeals an action is to be brought and
by what date a petition for review must be filed with the appropriate
Court of Appeals.
Definitions. Section 302, 42 U.S.C. 7602, contains definitions for
many of the terms used in the Clean Air Act. The term ``Indian tribe''
is among the terms defined in this section and is defined as ``any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is Federally recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.'' CAA section
302(r). Not all of the CAA definitions are set out in section 302.
Terms often are defined in the specific Titles in which they appear.
Outer Continental Shelf. Section 328, 42 U.S.C. 7627, provides for
regulation of sources located on the Outer Continental Shelf (OCS)
offshore all the States except Texas, Louisiana, Mississippi and
Alabama. These sources must comply with EPA's rule on OCS requirements,
which generally set forth requirements that are the same as the
applicable requirements in the corresponding onshore area that pertain
to the attainment and maintenance of ambient air quality standards and
to PSD. If States develop and submit to EPA an adequate program, EPA
can delegate implementation and enforcement of these provisions to
States. EPA is proposing to extend such authority to Tribes in today's
action.
Title IV--Acid Deposition.
This program calls for phased nationwide emission reductions in
sulfur dioxide (SO2) of approximately 10 million tons from 1980
levels from fossil fuel-fired electric utility units. These reductions
are achieved through the purchase and sale of a fixed number of
SO2 ``allowances.'' Each allowance entitles the holder to emit one
ton of SO2. Through this emissions trading program, owners of
``affected'' units that can reduce emissions efficiently can sell
excess allowances to owners of units where it is more costly to obtain
the required reductions, thereby achieving emissions reductions in a
cost-effective manner.
The acid rain program also calls for reductions in nitrogen oxides
of approximately 2 million tons from 1980 levels from coal-fired
electric utility units. These reductions are obtained by requiring
affected sources to comply with certain emission limitations. In many
situations, compliance may be demonstrated by averaging the emissions
among different utility units.
The Title IV program is a Federal program during Phase I, from
1995--1999. However, during Phase II, which begins in the year 2000,
States will issue the acid precipitation portion of the operating
permits addressed below under Title V. 42 U.S.C. 7651-7651o. In today's
rule, EPA is proposing to extend this Phase II permitting authority to
Tribes.
Title V--Operating Permits Program.
Title V of the Act requires States to develop and submit to EPA an
operating permit program.2 Title V calls for the permitting of
certain sources by certain deadlines. Operating permits are to contain
all of the Clean Air Act requirements applicable to such sources. The
program is intended to promote regulatory certainty and enforceability.
Title V also provides for the collection of fees by the permitting
agency that reflect the reasonable costs of the permit program. 42
U.S.C. 7661-7661e. EPA has issued rules specifying the minimum
requirements for State permit programs. 57 FR 32,250 (July 21, 1992).
EPA is proposing to extend Title V operating permit program authority
to Tribes in today's rule.
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\2\ Note that this operating permit program is not the same as
the NSR and PSD permit programs described previously that, by
contrast, require construction permits.
---------------------------------------------------------------------------
Small Business Assistance Program. Title V also contains provisions
requiring States to adopt a small business stationary source technical
and environmental compliance assistance program, which is to be
incorporated into the SIP described under Title I. 42 U.S.C. 7661f. EPA
is proposing to authorize Tribes to submit such assistance programs.
Title VI--Phaseout of Ozone-Depleting Chemicals.
This Title provides for the phase-out of the production of certain
substances that deplete stratospheric ozone as well as providing other
restrictions on the use of such substances. It is a Federally
established and federally managed program. 42 U.S.C. 7671-7671q. Among
other things, it implements the Montreal Protocol, a multinational
agreement addressing damage to stratospheric ozone.
Addendum B--List of EPA Regional Offices
Region 1
Environmental Protection Agency, John F. Kennedy Federal Building,
One Congress Street, Boston, MA 02203, (617) 565-3420
Air, Pesticides and Toxics Management Division, (617) 565-3800
Region 2
Environmental Protection Agency, Jacob K. Javits Federal Building,
26 Federal Plaza, New York, NY 10278, (212) 264-2657
Air and Waste Management Division, (212) 264-2301
Region 3
Environmental Protection Agency, 841 Chestnut Building,
Philadelphia, PA 19107, (215) 597-9800
Air, Radiation and Toxics Division, (215) 597-9390
Region 4
Environmental Protection Agency, 345 Courtland Street, NE, Atlanta,
GA 30365, (404) 347-4727
Air, Pesticides and Toxics Management Division, (404) 347-3043
Region 5
Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, IL 60604-3507, (312) 353-2000
Air and Radiation Division, (312) 393-1661
Region 6
Environmental Protection Agency, First Interstate Bank Tower at
Fountain Place, 1445 Ross Avenue 12th Floor Suite 1200, Dallas, TX
75202-2733, (214) 655-6444
Air Pesticides and Toxics Division, (214) 655-7200
Region 7
Environmental Protection Agency, 726 Minnesota Avenue, Kansas City,
KS 66101, (913) 551-7000
Air and Toxics Division, (913) 551-7020
Region 8
Environmental Protection Agency, 999 18th Street Suite 500, Denver,
CO 80202-2405, (303) 293-1603
Air and Toxics Division (303) 293-0946
Region 9
Environmental Protection Agency, 75 Hawthorne Street, San
Francisco, CA 94105, (415) 744-1305
Air and Toxics Division, (415) 744-1219
Region 10
Environmental Protection Agency, 1200 Sixth Avenue, Seattle, WA
98101, (206) 553-4973
Air and Toxics Division, (206) 553-1152
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below:
PART 35--STATE AND LOCAL ASSISTANCE
1. The authority cite for part 35, subpart A, continues to read as
follows:
Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended
(42 U.S.C. 7405 and 7601(a)); Secs. 106, 205(g), 205(j), 208, 319,
501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256,
1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and
1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9 and
300j-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of
the Federal Insecticide, Fungicide and Rodenticide Act, as amended
(7 U.S.C. 136(b), 136(u) and 136w(a)).
2. Section 35.105 is amended by revising the definitions for
``Eligible Indian Tribe'', ``Federal Indian reservation'', and the
first definition for ``Indian Tribe'', and by removing the second
definition for ``Indian Tribe'' to read as follows:
Sec. 35.105 Definitions.
* * * * *
Eligible Indian Tribe means:
(1) For purposes of the Clean Water Act, any federally recognized
Indian Tribe that meets the requirements set forth at 40 CFR 130.6(d);
and
(2) For purposes of the Clean Air Act, any federally recognized
Indian Tribe that meets the requirements set forth at Sec. 35.220.
Federal Indian reservation means for purposes of Clean Water Act or
the Clean Air Act, all land within the limits of any Indian reservation
under the jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and including rights-of-way running through
the reservation.
Indian Tribe means:
(1) Within the context of the Public Water System Supervision and
Underground Water Source Protection grants, any Indian Tribe having a
Federally recognized governing body carrying out substantial
governmental duties and powers over a defined area.
(2) For purposes of the Clean Water Act, any Indian Tribe, band,
group, or community recognized by the Secretary of the Interior and
exercising governmental authority over a Federal Indian reservation.
(3) For purposes of the Clean Air Act, any Indian Tribe, band,
nation, or other organized group or community, including any Alaskan
Native Village, which is recognized by the Secretary of the Interior
and which exercises governmental authority over a Federal Indian
reservation or other defined area.
* * * * *
3. Section 35.205 is amended by adding a sentence to the end of
paragraphs (a) and (b) to read as follows:
Sec. 35.205 Maximum Federal share.
(a) * * * For Indian tribes establishing eligibility pursuant to
Sec. 35.220, the Regional Administrator may provide financial
assistance to in an amount up to ______ (amount to be determined) of
the approved costs of planning, developing, establishing, or improving
an air pollution control, and up to ______ (amount to be determined) of
the approved costs of maintaining that program.''
(b) * * * The Regional Administrator may provide agencies of one or
more tribes that have established eligibility pursuant to Sec. 35.220
which have substantial responsibility for carrying out an applicable
implementation plan under section 110 of the Clean Air Act up to ______
(amount to be determined) of the approved costs of planning,
developing, establishing, or approving an air pollution control program
and up to ______ (amount to be determined) of the approved costs of
maintaining that program.
4. Section 35.210 is amended by adding a paragraph (c) to read as
follows:
Sec. 35.210 Maintenance of effort.
* * * * *
(c) The requirements of paragraphs (a) and (b) of this section
shall not apply to Indian tribes that have established eligibility
pursuant to Sec. 35.220.
5. Section 35.215 is revised to read as follows:
Sec. 35.215 Limitations.
(a) The Regional Administrator will not award section 105 funds to
an interstate, intertribal or intermunicipal agency which does not
provide assurance that it can develop a comprehensive plan for the air
quality control region which includes representation of appropriate
State, interstate, local, and international interests.
(b) The Regional Administrator will not award section 105 funds to
a local, interstate, or intermunicipal agency without consulting with
the appropriate official designated by the Governor or Governors of the
State or States affected or the appropriate official of any affected
Indian tribe or tribes.
(c) The Regional Administrator will not disapprove an application
for or terminate or annul an award of section 105 funds without prior
notice and opportunity for a public hearing in the affected State or
area within Tribal jurisdiction or in one of the affected States or
areas within Tribal jurisdiction if several are affected.
6. Section 35.220 is added just before the center heading ``Water
Pollution Control (Section 106)'' to read as follows:
Sec. 35.220 Eligible Indian Tribes.
The Administrator may make Clean Air Act section 105 grants to
eligible Indian tribes without requiring the same cost share that would
be required if such grants were made to states. Instead grants to
eligible tribes will include a cost share of ______ (amount to be
determined).
(a) An Indian tribe is eligible to receive such assistance if it
has demonstrated eligibility to be treated in the same manner as a
State under 40 CFR 49.6.
(b) A tribe that has not made a demonstration under 40 CFR 49.6 is
eligible for financial assistance under 42 U.S.C. 7405 and 7602(b)(1)
if:
(1) The Indian tribe has a governing body carrying out substantial
duties and powers.
(2) The functions to be exercised by the Indian tribe pertain to
the management and protection of air resources within the boundaries of
an Indian reservation or other areas within the tribe's jurisdiction.
(3) The Indian tribe is reasonably expected to be capable, in the
judgment of the Regional Administrator, of carrying out the functions
to be exercised in a manner consistent with the terms and purposes of
the Clean Air Act and applicable regulations.
(c) The Administrator shall process a tribal application for
financial assistance under this section in a timely manner.
7. Part 49 is added to read as follows:
PART 49--TRIBAL CLEAN AIR ACT AUTHORITY
Sec.
49.1 Program overview.
49.2 Definitions.
49.3 General Tribal Clean Air Act authority.
49.4 Clean Air Act provisions inapplicable to Tribes.
49.5 Tribal requests for inapplicability of additional Clean Air
Act provisions.
49.6 Tribal eligibility requirements.
49.7 Request by an Indian Tribe for eligibility determination and
Clean Air Act program approval.
49.8 Provisions for Tribal criminal enforcement authority.
49.9 EPA review of Tribal Clean Air Act applications.
49.10 EPA review of State Clean Air Act programs.
Authority: 42 U.S.C. 7401, et seq.
Sec. 49.1 Program overview.
(a) The regulations in this part identify those provisions of the
Clean Air Act (Act) for which Indian Tribes are treated in the same
manner as States. In general, these regulations authorize eligible
Tribes to have the same rights as States under the Clean Air Act and
authorize EPA approval of Tribal air quality programs meeting the
applicable minimum requirements of the Act.
(b) Nothing in this part shall prevent an Indian Tribe from
establishing additional or more stringent air quality protection
requirements not inconsistent with the Act.
Sec. 49.2 Definitions.
Clean Air Act or Act means those statutory provisions in the United
States Code at 42 U.S.C. 7401, et seq.
Federal Indian Reservation, Indian Reservation or Reservation means
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation.
Indian Tribe or Tribe means any Indian Tribe, band, nation, or
other organized group or community, including any Alaska Native
village, which is Federally recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
Indian Tribe Consortium or Tribal Consortium means a group of two
or more Indian Tribes.
State means a State, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes
the Commonwealth of the Northern Mariana Islands.
Sec. 49.3 General Tribal Clean Air Act authority.
Tribes meeting the eligibility criteria of Sec. 49.6 shall be
treated in the same manner as States with respect to all provisions of
the Clean Air Act and implementing regulations, except for those
provisions identified in Sec. 49.4 and the regulations that implement
those provisions.
Sec. 49.4 Clean Air Act provisions inapplicable to Tribes.
The following provisions of the Clean Air Act and any implementing
regulations are not applicable to Tribes:
(a) Specific plan submittal and implementation deadlines for NAAQS-
related requirements, including but not limited to such deadlines in
sections 110(a)(1), 172(a)(2), 182, 187, 189, 191 of the Act.
(b) The specific deadlines associated with the review and revision
of implementation plans related to major fuel burning sources in
section 124 of the Act.
(c) The mandatory imposition of sanctions under section 179 of the
Act because of a failure to submit an implementation plan or required
plan element by a specific deadline, or the submittal of an incomplete
or disapproved plan or element.
(d) The ``within 2 years'' clause in section 110(c)(1) of the Act.
The inapplicability of this specific clause does not in any way curtail
the general authority delegated to the Administrator under section
110(c)(1) to issue a Federal implementation plan upon the failure of a
Tribe to make a required submission, upon a finding that the plan or
plan revision submitted by a Tribe is incomplete or in response to
EPA's disapproval of a Tribal implementation plan in whole or in part.
(e) Specific visibility implementation plan submittal deadlines
established under section 169A of the Act.
(f) Specific implementation plan submittal deadlines related to
interstate commissions under sections 169B(e)(2), 184(b)(1) & (c)(5) of
the Act. For eligible Tribes participating as members of such
Commissions, the Administrator shall establish those submittal
deadlines that are determined to be practicable or, as with other non-
participating Tribes in an affected transport region, provide for
Federal implementation of necessary measures.
(g) Any provisions of the Act requiring as a condition of program
approval the demonstration of criminal enforcement authority or any
provisions of the Act providing for the delegation of such criminal
enforcement authority. Tribes seeking approval of a Clean Air Act
program requiring such demonstration may receive program approval if
they meet the requirements for enforcement authority established under
Sec. 49.8.
(h) The specific deadline for the submittal of operating permit
programs in section 502(d)(1) of the Act.
(i) The mandatory imposition of sanctions under section
502(d)(2)(B) because of failure to submit an operating permit program
or EPA disapproval of an operating permit program submittal in whole or
part.
(j) The ``2 years after the date required for submission of such a
program under paragraph (1)'' clause in section 502(d)(3) of the Act.
The inapplicability of this specific clause does not in any way curtail
the general authority delegated to the Administrator under section
502(d)(3) to promulgate, administer and enforce a Federal operating
permit program for a Tribe not having a program that has been approved
in whole.
(k) Section 502(g), which authorizes a limited interim approval of
an operating permit program that substantially meets the requirements
of Title V, but is not fully approvable.
(l) The provisions of section 503(c) that direct permitting
authorities to establish a phased schedule assuring that at least one-
third of the permit applications submitted within the first full year
after the effective date of an operating permit program (or a partial
or interim program) will be acted on by the permitting authority over a
period of not to exceed three years after the effective date.
(m) The provisions of section 507(a) that specify a deadline for
the submittal of plans for establishing a small business stationary
source technical and environmental compliance assistance program.
(n) The provisions of section 507(e) that direct the establishment
of a Compliance Advisory Panel.
Sec. 49.5 Tribal requests for inapplicability of additional Clean Air
Act provisions.
Any Tribe may request that the Administrator specify additional
provisions of the Clean Air Act for which it would be inappropriate to
treat Tribes in the same manner as States. Such request should clearly
identify the provisions at issue and should be accompanied with an
explanation why it is inappropriate to treat Tribes in the same manner
as States with respect to such provisions.
Sec. 49.6 Tribal eligibility requirements.
Sections 301(d)(2) and 302(r), 42 U.S.C. 7601(d)(2) and 7602(r),
authorize the Administrator to treat an Indian Tribe in the same manner
as a State for the Clean Air Act provisions identified in Sec. 49.3 if
the Indian Tribe meets the following criteria:
(a) The applicant is an Indian Tribe recognized by the Secretary of
the Interior,
(b) The Indian Tribe has a governing body carrying out substantial
governmental duties and functions,
(c) 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
(d) The Indian Tribe is reasonably expected to be capable, in the
EPA Regional Administrator's judgment, of carrying out the functions to
be exercised in a manner consistent with the terms and purposes of the
Clean Air Act and all applicable regulations.
Sec. 49.7 Request by an Indian Tribe for eligibility determination and
Clean Air Act program approval.
(a) An Indian Tribe may apply to the EPA Regional Administrator for
a determination that it meets the eligibility requirements of Sec. 49.6
for Clean Air Act program authorization. The application shall
concisely describe how the Indian Tribe will meet each of the
requirements of Sec. 49.6 and should include the following information:
(1) A statement that the applicant is an Indian Tribe recognized by
the Secretary of the Interior.
(2) A descriptive statement demonstrating that the applicant is
currently carrying out substantial governmental duties and powers over
a defined area. This statement should:
(i) Describe the form of the Tribal government;
(ii) Describe the types of government functions currently performed
by the Tribal governing body such as, but not limited to, the exercise
of police powers affecting (or relating to) the health, safety, and
welfare of the affected population; taxation; and the exercise of the
power of eminent domain; and
(iii) Identify the source of the Tribal government's authority to
carry out the governmental functions currently being performed.
(3) A descriptive statement of the Indian Tribe's authority to
regulate air quality. For applications covering areas within the
exterior boundaries of the applicant's Reservation the statement must
identify with clarity and precision the exterior boundaries of the
reservation including, for example, a map and a legal description of
the area. For Tribal applications covering areas outside the boundaries
of the applicant's Reservation the statement should include:
(i) A map or legal description of the area over which the
application asserts authority.
(ii) A statement by the applicant's legal counsel (or equivalent
official) which describes the basis for the Tribe's assertion of
authority (including the nature or subject matter of the asserted
regulatory authority) which may include a copy of documents such as
Tribal constitutions, by-laws, charters, executive orders, codes,
ordinances, and/or resolutions which support the Tribe's assertion of
authority.
(4) A narrative statement describing the capability of the
applicant to effectively administer any Clean Air Act program for which
the Tribe is seeking approval. The narrative statement must demonstrate
the applicant's capability consistent with the applicable provisions of
the Clean Air Act and implementing regulations and, if requested, may
include:
(i) A description of the Indian Tribe's previous management
experience which may include the administration of programs and
services authorized by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450, et seq.), the Indian Mineral Development
Act (25 U.S.C. 2101, et seq.), or the Indian Sanitation Facility
Construction Activity Act (42 U.S.C. 2004a);
(ii) A list of existing environmental or public health programs
administered by the Tribal governing body and a copy of related Tribal
laws, policies, and regulations;
(iii) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the Tribal
government;
(iv) A description of the existing, or proposed, agency of the
Indian Tribe which will assume primary responsibility for administering
a Clean Air Act program (including a description of the relationship
between the existing or proposed agency and its regulated entities);
(v) A description of the technical and administrative capabilities
of the staff to administer and manage an effective air quality program
or a plan which proposes how the Tribe will acquire administrative and
technical expertise. The plan should address how the Tribe will obtain
the funds to acquire the administrative and technical expertise.
(5) A Tribe that is a member of a Tribal consortium may rely on the
expertise and resources of the consortium in demonstrating under
paragraph (a)(4) of this section that the Tribe is reasonably expected
to be capable of carrying out the functions to be exercised consistent
with Sec. 49.6(a)(4). A Tribe relying on a consortium in this manner
must provide reasonable assurances that the Tribe has responsibility
for carrying out necessary functions in the event the consortium fails
to.
(6) Where applicable Clean Air Act or implementing regulatory
requirements mandate criminal enforcement authority, an application
submitted by an Indian Tribe may be approved if it meets the
requirements of Sec. 49.8.
(7) Additional information required by the EPA Regional
Administrator which, in the judgment of the EPA Regional Administrator,
is necessary to support an application.
(8) Where the applicant has previously received authorization for a
Clean Air Act program or for any other EPA-administered program, the
applicant need only identify the prior authorization and provide the
required information which has not been submitted in the previous
application.
(b) A Tribe may simultaneously submit a request for an eligibility
determination and a request for approval of a Clean Air Act program.
(c) A request for Clean Air Act program approval must meet any
applicable Clean Air Act statutory and regulatory requirements and may
contain any reasonable portion of a Clean Air Act program to the extent
not inconsistent with applicable statutory and regulatory requirements.
Sec. 49.8 Provisions for Tribal criminal enforcement authority.
To the extent that an Indian Tribe is precluded from asserting
criminal enforcement authority, the Federal government will exercise
primary criminal enforcement responsibility. The Tribe, with the EPA
Region, shall develop a procedure by which the Tribal agency will refer
potential criminal violations to the EPA Regional Administrator, as
agreed to by the parties, in an appropriate and timely manner. This
procedure shall encompass all circumstances in which the Tribe is
incapable of exercising applicable enforcement requirements as provided
in Sec. 49.7(a)(6). This agreement shall be incorporated into a
Memorandum of Agreement with the EPA Region.
Sec. 49.9 EPA review of Tribal Clean Air Act applications.
(a) The EPA Regional Administrator shall process a request of an
Indian Tribe submitted under Sec. 49.7 in a timely manner. The EPA
Regional Administrator shall promptly notify the Indian Tribe of
receipt of the application.
(b) Within 30 days of receipt of an Indian Tribe's initial,
complete application, the EPA Regional Administrator shall notify all
appropriate governmental entities.
(1) For Tribal applications addressing air resources within the
exterior boundaries of the Reservation, EPA's notification of other
governmental entities shall specify the geographic boundaries of the
Reservation.
(2) For Tribal applications addressing off-reservation areas, EPA's
notification of other governmental entities shall include the substance
and bases of the Tribe's assertions that it meets the requirements of
Sec. 49.6(a)(3).
(c) The governmental entities shall have 15 days to provide written
comments to EPA's Regional Administrator regarding any dispute
concerning the boundary of the Reservation. Where a Tribe has asserted
jurisdiction over off-reservation lands, appropriate governmental
entities may request a single 15-day extension to the general 15-day
comment period.
(d) In all cases, comments must be timely, limited to the scope of
the Tribe's jurisdictional assertion, and clearly explain the
substance, bases and extent of any objections. If a Tribe's assertion
is subject to a conflicting claim, the EPA Regional Administrator may
request additional information and may consult with the Department of
the Interior.
(e) The EPA Regional Administrator shall decide the scope of the
Tribe's jurisdiction. If a conflicting claim cannot be promptly
resolved, the EPA Regional Administrator may approve that portion of an
application addressing all undisputed areas.
(f) A determination by the EPA Regional Administrator concerning
the boundaries of a Reservation or Tribal jurisdiction over other off-
reservation areas shall apply to all future Clean Air Act applications
from that Tribe or Tribal consortia and no further notice of
governmental entities as provided in paragraph (b) of this section
shall be provided, unless the application presents different
jurisdictional issues or significant new factual or legal information
relevant to jurisdiction is presented to the EPA Regional
Administrator.
(g) If the EPA Regional Administrator determines that a Tribe meets
the requirements of Sec. 49.6, the Indian Tribe is eligible to be
treated in the same manner as a State for those Clean Air Act
provisions identified in Sec. 49.3. The eligibility will extend to all
areas within the exterior boundaries of the Tribe's reservation, as
determined by the EPA Regional Administrator, and any other areas the
EPA Regional Administrator has determined to be within the Tribe's
jurisdiction.
(h) A Tribal application containing a Clean Air Act program
submittal will be reviewed by EPA in the same procedural and
substantive manner as EPA would review a similar State submittal.
(i) The EPA Regional Administrator shall return an incomplete or
disapproved application for eligibility or program approval to the
Tribe with a summary of the deficiencies.
Sec. 49.10 EPA review of State Clean Air Act programs.
A State Clean Air Act program submittal shall not be disapproved
because of failure to address air resources within the exterior
boundaries of an Indian Reservation or other areas within the
jurisdiction of an Indian Tribe.
PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY
STANDARDS
8. The authority citation for part 50 is revised to read as
follows:
Authority: Clean Air Act, 42 U.S.C. 7401, et seq.
9. Section 50.1 is amended by adding paragraph (i) to read as
follows:
Sec. 50.1 Definitions.
* * * * *
(i) Indian country is as defined in 18 U.S.C. 1151.
10. Section 50.2 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 50.2 Scope.
* * * * *
(c) The promulgation of national primary and secondary ambient air
quality standards shall not be considered in any manner to allow
significant deterioration of existing air quality in any portion of any
State or Indian country.
(d) The proposal, promulgation, or revision of national primary and
secondary ambient air quality standards shall not prohibit any State or
Indian Tribe from establishing ambient air quality standards for that
State or Indian Tribe or any portion thereof which are more stringent
than the national standards.
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
11. The authority citation for part 81 is revised to read as
follows:
Authority: Clean Air Act, 42 U.S.C. 7401, et seq.
12. Section 81.1 is amended by revising paragraph (a) and adding
new paragraphs (c), (d) and (e) as follows:
Sec. 81.1 Definitions.
* * * * *
(a) Act means the Clean Air Act as amended (42 U.S.C. 7401, et
seq.).
* * * * *
(c) Federal Indian Reservation, Indian Reservation or Reservation
means all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation.
(d) Indian Tribe or Tribe means any Indian Tribe, band, nation, or
other organized group or community, including any Alaska Native
village, which is Federally recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
(e) State means a State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, and American Samoa and
includes the Commonwealth of the Northern Mariana Islands.
Subpart C--Section 107 Attainment Status Designations
13. The authority citation for subpart C, part 81 is revised to
read as follows:
Authority: Clean Air Act, 42 U.S.C. 7401, et seq.
Sec. 81.300 [Amended]
14. Section 81.300(a) is amended by revising the words ``Both the
State and EPA can initiate changes to these designations, but any
State'' to read ``A State, an Indian Tribe determined eligible for such
functions under 40 CFR part 49, and EPA can initiate changes to these
designations, but any State or Tribal redesignation must be submitted
to EPA for concurrence.''
[FR Doc. 94-20811 Filed 8-24-94; 8:45 am]
BILLING CODE 6560-50-P