Tribal Roles in Minor NSR by: Joy Wiecks, Fond du Lac Band

1. Tribal Roles in Minor NSRby: Joy Wiecks, Fond du Lac Band Tribal Permit Training Fond du Lac Reservation June 12, 2013

2. What We Will Cover • History and purpose • General permitting information • Tribal decision matrices • Pro’s and con’s of decision choices • What to consider in decision-making

3. Tribal NSR Overview • Initiated in 1990’s, proposed in 2006, finalized on July 1, 2011 • Tribal NSR closed a gap in permitting on Reservations • Tribes now have input on how on-Reservation sources will be permitted • Tribal New Source Review Implementation manual available from NTAA and EPA websites, May 2012

4. Permitting Gap • Previously, only major sources in attainment areas could be permitted in Indian Country • Minor sources – no mechanism for permitting • Major sources in non-attainment areas – no mechanism for permitting • No predictability for sources or tribes

5. TNSR, Continued • TNSR clarifies the permitting process and tribal jurisdiction, and creates a mechanism for permitting • Protects air quality • Levels the playing field in terms of • Predictability for econ. development • Permit content • Minor NSR regulates • True minor sources • Synthetic minor sources • Minor modifications at Major sources • Non-attainment major NSR gap also filled

6. Minor Source Permitting Information • Major sources - emit more than 250 ton/year of any criteria pollutant (or more than 100 tpy in 28 specific source categories) • Minor sources – emit 0.1-10 tpy of a criteria pollutant • “True” minor’s potential emissions stay under major source thresholds at all times • “Synthetic” minor sources need permit limits to do this • Sources need to obtain pre-construction permits • Permits may have requirements/limits for operating parameters

7. Tribal Involvement Decision Matrix • Developed to help tribes understand options for implementing the Tribal NSR rule • Three scenarios are presented that range from: • Tribe wanting no, little, or limited participation • Tribe wanting to start small and develop program over time • Any combination or mixture of these steps are open to the tribe

8. Decision Matrix Education & Outreach Assessment/Analysis Identify & Determine Goals/Priorities Basic Options EPA Implements Program Delegation TIP/Tribal Rule

9. Matrix Continued EPA Implementation/Tribal Participation Delegation TIP/Rule Capacity Criteria Resources Implementation Pros/Cons Roles & Responsibilities

10. Education & Outreach • Identify resources to learn about: • Final rule • Implementation issues • Better understand information to present to: • Tribal leaders • Community tribal audience • Sources on the Reservation

11. Assessment • Determine to what extent tribe wants to participate in implementation of the NSR rule • Identify sources to have data to support your proposed plan of action • Identify plans for future economic development • Meet within the tribe and with EPA to discuss • Identify questions for EPA to answer to help your tribe make an informed decision

12. Identify Priorities • Determining priorities is important • Number of sources on Reservation • Resources • Political direction of tribe • Determine what tribe is willing to engage in or prepared to do today to implement TNSR • And, to what extent in the future

13. Steps in Process • Moving from lowest involvement or none at all, the following slides will show choices ranging from EPA implementation of TNSR to full tribal implementation • Remember, a tribe may decide to jump in between steps due to capacity levels as they move towards developing a Tribal NSR rule implementation plan

14. Tribal NSR Decision Matrix EPA Implementation/Tribal Participation • Because the TNSR was done as a FIP… • EPA is required to implement the program • The tribe is not required to participate • A tribe may chose… • To do nothing • Limited participation (i.e. outreach, conf. calls) • Participate or begin building capacity and work with EPA • Review permits • Help with outreach to the community Delegation TIP/Rule

15. Pros and Cons of EPA Implementation • Pros • Builds tribal capacity over time • EPA lends credibility • No TAS necessary • Low to medium tribal resources needed • Least likely to lead to challenges to tribal jurisdiction • Pros/Cons • More supportive of sovereignty than prior to rule • No enforcement role for tribes • Cons • EPA resources may be limited • Less control over progress/rule implementation • Can be seen as infringement on sovereignty

16. Tribal NSR Decision Matrix • Delegation is an established agreement to authorize the administration of one or more federal rules in a FIP with a tribe to assist in whole or partial administration of a specific Tribal NSR rule, with EPA retaining enforcement responsibility EPA Implementation/Tribal Participation Delegation TIP/Rule

17. Pros and Cons of Delegation • Pros • Builds tribal capacity • Credibility of implementing an EPA program • Less complicated than developing TAS or TIP • Tribal involvement may improve community acceptance of program • May be most effective and efficient due to tribal knowledge • Pros/Cons • More supportive of sovereignty than prior to rule • No enforcement for tribe • Cons • Some parties may challenge tribe’s participation • Non-tribal constituents may have concerns • Requires more resources and capacity than EPA implementation • Less assertion of tribal sovereignty than a TIP

18. Delegation (continued) • Requirements for delegation • Show federal recognition • Have governing body adequate to carry out the duties and powers over the area • Identify Reservation boundaries • Demonstrate tribe has or will have technical capacity • TAS is not required for delegation • Delegation can be requested for the entire FIP or it can be severable • Roles and responsibilities • Tribe can take on as much or as little as they wish • Tribe may develop its own rules or codes to implement a program • Capacity – tribes can work through delegation with EPA to build capacity by doing the work

19. Tribal NSR Decision Matrix • A tribe can choose to develop a TIP to take on authority for ensuring that the NAAQS are met within its jurisdiction • Developing a TIP gives the tribe the option of implementing and enforcing its own program • Once a TIP is approved by EPA, the provisions of the implementation plan become federally enforceable in addition to being enforceable by the tribe • TAS is required for a TIP EPA Implementation/Tribal Participation Delegation TIP/Rule

20. TIP/Tribal Rule • Pros • Tribally implemented program • Tribal rules may be better fit than federal program • Greatest exertion of Tribal sovereignty • Tribal program may be more acceptable to a tribal population • Pros/Cons • Enforcement issues • Cons • May draw challenges to tribal authority or boundaries • Non-tribal constituents may have concerns • Resource intensive • Demands lots of coordination with EPA

21. Decision Matrix Capacity • Areas to consider when deciding which route to pursue (if any) • Example questions • What type of capacity is needed for delegation? • Criteria for delegation? • Resources needed? • How to implement a delegated program? • Pros and cons for the tribe? • What are the specific roles and responsibilities of the tribe/EPA in a delegated program? Delegation Criteria Resources How to Implement Pros/Cons Roles and Responsibilities

22. Conclusions • Decision of what route to take is very individual depending on your tribe • Need to make decision working with your tribal government • If decide to pursue a more active role, talk with EPA to determine roles/schedule, etc.