Rules and Regulations: Distinguishing Actions and Authority

1. Rules and Regulations: Distinguishing Actions and Authority Laura McKelvey U.S. EPA

2. Introduction • Distinguish between • Clean Air Act • Rules and Regulations • Guidance • Sovereignty • TAR • TAS

3. The Clean Air Act, as Amended Originally • Act July 14, 1955 • 1963 Public Law 88-206, Dec. 17 1963 77 Stat. 392 • 1965 Emissions Standards Act • Air Quality Act of 1967 • Clean Air Amendments of 1970 “This Act may be cited as the “Clean Air Act” (Dec. 31, 1970, 84 Stat. 1705) • Clean Air Act Amendments of 1977 • Steel Industry Compliance Extension Act of 1981 • Clean Air Act Amendments of 1990 • Border Smog Reduction Act of 1998 • Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (1999)

4. Intent CAA 101(b) • 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 • To initiate and accelerate a national research and development program to achieve the prevention and control of air pollution; • To provide technical and financial assistance to State and local governments in connection with the development and execution of their air pollution prevention and control programs; and • To encourage and assist the development and operation of regional air pollution prevention and control programs

5. Intent (cont.) CAA 102 (a) The Administrator shall encourage cooperative activities by the States and local governments (b) The Administrator shall cooperate with and encourage cooperative activities by all Federal departments and agencies having functions related to (c) The consent of Congress is hereby given to tow or more States to negotiate and enter into agreements or compacts CAA 103 (a) research and development (c) Air pollution monitoring, analysis, modeling and inventory research (d) Environmental health effects research (e) Ecosystem research CAA 105 Grants for support of air pollution planning and control programs

6. Federal Laws • Congressional Authorization • STATES • Required to adopt or develop rules and regulations to implement CAA requirements • TRIBES • Late, but authorized to implement severable elements of CAA, with a few exceptions • Tribal authority first recognized in 1977 PSD amendments, then later in 1990 amendments authorizing tribal programs

7. Federal Laws (cont.) EPA • develop federal rules and regulations • For appropriate federal activities not appropriate for states (e.g., atmospheric protection, mobile sources) • For national programs to be delegated to and implemented by states (and tribes eligible and interested), such as NSPS • Oversight role to ensure proper implementation of CAA requirements and “level playing field” • Fund eligible programs and activities

8. Rules and Regulations EPA (federal) • Develop rule, solicit public comment • Rule becomes regulation upon promulgation • Regulation implements Congressional instructions • CAA 301(d) is implemented in Tribal Authority Rule (1998) • Authorized to treat Indian tribes as “states” • May provide any such Indian tribe grant and contract assistance • Shall promulgate regulations specifying those provisions…for which it is appropriate to treat…

9. Rules and Regulations States • Required to develop or adopt regulations • Often based on federal regulations • Required to adopt into state law • Demonstrate ability, staffing required in 40CFR 52 • PSD and NSPS were adopted to comply with federal regulations • Also based on guidance • States develop regulations based on federal guidance • Example is minor NSR rules for states • Guidance interprets Congressional intent • Intent is not always clear – progress vs x% • EPA can be challenged over guidance

10. Rules and Regulations Tribes • Eligible but not required to participate through TAR • Recognizes sovereignty, diversity and federal obligations/responsibility • May implement CAA programs that suit tribal needs through delegation • Must make demonstrations similar to states (capability, adoption of regulations into tribal codes) • Have similar authority to states as sovereigns • Can adopt more stringent regulations using inherent authority

11. Sovereignty • Authority over an area • Power to govern • Sovereignty was impaired but not lost when tribes became subject to US power • State laws do not apply on reservations • Only Congress has plenary (overriding) power over Indian affairs

12. TAR Development • CAA Implementation Authority Section 301(d) • 1990 CAA Amendments • Authorized to treat tribes as states • May provide grant and contract assistance • Administrator will directly administer such provisions • Tribal air management authority

13. TAR Development (cont.) • EPA proposed implementation in 1994 • Eligibility requirements • Application procedures • Provisions for “treating tribes like states” • Rule proposed Aug. 25, 1994 • Rule promulgated February 12, 1998

14. Framework for Tribal Implementation of CAA • Jurisdiction • Sovereign immunity • Modular approach • Grant match requirement • Federal implementation • Eligibility requirements

15. Tribal Jurisdiction • Within exterior boundaries of reservation • Other areas where tribes can demonstrate jurisdiction

16. Modular Approach • Ensures flexibility • Tribes and EPA develop approaches • Elements to be • Reasonably severable • Consistent with legal requirements

17. Grant Match Requirements • Grants under Sec. 103 & 105 • Sec. 103 requires no match • Limited duration • For surveys, studies, investigations • Sec. 105 • 5%, then 10% after 2 years with TAS (with EPA action) • 40% without TAS • Waivers available for hardship (rare) • EPA will review program over time

18. Federal Implementation • Trust responsibility • Federal Implementation Plan (FIP) required • With necessary and appropriate provisions • Without unreasonable delay

19. Eligibility Requirements • Federally recognized tribe • Governing body with substantial governing duties and powers • Statement of the tribe’s authority to regulate air quality • Capability to carry out program

20. 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

21. Litigation Issues • Judicial review • Direct administration • Public participation in TAS process • Reservation size • Jurisdiction

22. DC Circuit Court Opinion • Upheld EPA’s interpretation on every issue • One judge dissented on extent of delegation provided by Congress

23. Appeal to Supreme Court • Issues in petition • Definition of “reservation” • Congressional delegation of authority • Supreme Court denied cert (review) • DC Circuit Court opinion upheld

24. Treatment as a State (TAS) • Authorized in TAR • Four eligibility requirements • Two parts for air program • Administrative and programmatic • The process used to determine a tribe’s eligibility to receive CAA delegation of authority

25. Administrative TAS • Eligibility for CAA elements • 105, 505, other administrative elements • Any severable element • Low hurdle for eligibility • Same process for programmatic TAS to this point

26. Programmatic TAS • Part 2 of TAS process • May or may not require prior eligibility • Used for implementation of a program • 49.9(h): a tribal application containing a CAA program 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 and 110 • Administrative delegations of §105, 505(a)(2) • Navajo Nation has delegation of Part 71 (Title V) • Eligibility and Implementation • Typically done through a TIP

27. TAS Review • 40 CFR 49.9 details EPA review • Completeness finding – within 30 days • Notice and comment to appropriate governmental entities on jurisdiction • IG’s Office reviewed program • Found EPA was taking too long • Developed a checklist to expedite review

28. TAS Review Process • Tribe submits application (pre-submittal discussions with Region for programs) for each section of law • EPA Region determines completeness • EPA offers state a chance to comment on all CAA TAS; newspaper notice • EPA Headquarters review possible • Final decision by Regional Administrator

29. TAS Funding • TAS is not an assurance of ongoing funding • 40 CFR 35.578 specifies that applications may not be disapproved, existing awards may not be terminated without prior notice and opportunity for a public hearing • Lack of funding is not disapproval or termination

30. TAS Decisions • 28 tribes eligible for TAS to receive grants under sec. 105 of CAA • 10 tribes eligible for treatment as “affected state” under sec. 505(a)(2) of CAA • 2 tribes eligible for sec. 110 TIP

31. Conclusion Examined CAA intent CAA and Federal Laws Rules and Regulations Guidance Sovereignty TAR and TAS