Tribal Authority Rule (TAR) Overview

Pat Childers, U.S. EPA

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TAR Development

• CAA Implementation Authority [Section 301(d)]– 1990 CAA Amendments– Tribal air management authority– TAS

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TAR Development (cont.)

• EPA proposed implementation in 1994– Eligibility requirements– Application procedures– Provisions for “treating tribes like states”

• Rule proposed Aug. 1994

• Rule promulgated Feb. 1998

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Framework for Tribal Implementation of CAA

• Jurisdiction

• Sovereign immunity

• Modular approach

• Grant match requirement

• Federal implementation

• Eligibility requirements

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Tribal Jurisdiction

• Within exterior boundaries of reservation

• Other areas where tribes can demonstrate jurisdiction

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Sovereign Immunity

• Treating tribes in a manner similar to states– Tribes objected– Sovereign immunity waived only voluntarily

or by Congressional statute

• Final TAR addresses issue directly– Withdraws proposal on section 304– Allows alternative to judicial review

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Modular Approach

• Ensures flexibility

• Tribes and EPA develop approaches

• Elements to be– Reasonably severable– Consistent with legal requirements

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Grant Match Requirements

• Grants under Sec. 103 & 105• Sec. 103 requires no match• Sec. 105

– 5%, then 10% after 2 years with TAS with EPA RA demonstration of tribe’s ability to increase its share

– 40% without TAS– Waivers available for hardship (rare)

• EPA will review program over time

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Federal Implementation

• Trust responsibility

• Federal Implementation Plan (FIP) required– Where necessary or appropriate

provisions – Without unreasonable delay

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Eligibility Requirements

• Federally recognized tribe

• Governing body with substantial governing duties and powers

• Statement of tribe’s authority

• Capability to carry out program

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TAR Litigation History

• DC Circuit Court of Appeals

• Petitions for review filed by– State of Oklahoma– AZ Public Service Company– National Assoc. of Manufacturers et al.– Salt River Project et al.– Oklahoma Gas and Electric Co. – National Mining Association

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Litigation Issues

• Judicial review

• Direct administration

• Public participation in TAS process

• Reservation size

• Jurisdiction

• Oklahoma-specific issues

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DC Circuit Court Opinion

• Upheld EPA’s interpretation on

every issue

• One judge dissented on extent

of delegation provided by

Congress

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Appeal to Supreme Court

• Issues in petition

– Definition of “reservation”

– Congressional delegation of authority

• Supreme Court denied certiorari (review) – (Re-hearing possible but not likely)

• DC Circuit Court opinion upheld

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TAS– TAS is eligibility

– Implementation another matter– Administrative programs – nothing to implement (CAA

105), does not require separate program– No obligation– Part of unique 2-step process (TAS / TIP)

– 40 CFR 49.9 details EPA review• Within 30 days of completeness finding• Notice/comment to appropriate governmental entities• (g) if EPA RA determines tribe meets requirements of 49.6

for purposes of a CAA provision, Indian tribe eligible to be treated in same manner as a state with respect to that provision

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TIP

• Tribal Implementation Plan

– Paralleled by SIP and FIP

• Implements TAS programs

– Tribe must submit demonstration of capability to implement

• Can be combined with or separate from TAS application

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TIP (cont.)

– Does create an obligation• (h) …a tribal application containing a CAA

program submittal will be reviewed by EPA in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal

– Tribes have been approved for CAA §106, 107, 110

– Administrative delegations of § 105, 505(a)(2)

– Navajo Nation has delegation of Part 71

– Southern Ute has approval for Part 70

– Minor NSR permitting at St. Regis Mohawk

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Any questions?