Requesting Treatment as an "Affected State" Under Title V of the Clean Air Act

What must a Tribe do to request treatment as an "affected State"?

To be designated as an "affected State," a Tribe must submit a "treatment as a State" request to EPA, as described by the Tribal Authority Rule (TAR). This request should specify that the Tribe is applying for EPA approval as an "affected State" under Title V, and that the Tribe has the capacity to accept this status, as described below.

In general, what must a tribe do to request "treatment as a State" under the Clean Air Act?

A Tribe must meet the four eligibility criteria of the Clean Air Act (which are also spelled out in the TAR, and described in detail in a separate fact sheet titled Eligibility for Administering Clean Air Act Programs). These criteria state that a Tribe must:

1. be recognized by the U.S. Secretary of Interior;
2. have a governing body that is currently carrying out substantial governmental duties and functions;
3. have the authority to manage and protect the air resources within the exterior boundaries of its reservation, or other areas within the Tribe's jurisdiction; and
4. demonstrate capacity to administer the Clean Air Act program that it seeks to administer, consistent with applicable regulations. This capacity demonstration will vary depending on the type of program it seeks to administer.

How can a Tribe demonstrate that it is recognized by the U.S. Secretary of Interior?

A Tribe should simply send the EPA Regional Office a letter that states that the Tribe is recognized by the Secretary of the Interior.

How can a Tribe demonstrate that it has a governing body that is currently carrying out substantial governmental duties and functions?

The letter to EPA should describe the duties and powers of the Tribal government, including the following information:

1. Describe the form of the Tribal government;
2. Describe the types of government functions currently performed by the Tribal government (e.g., police powers affecting health, safety, and welfare of the Tribe, taxation, and the exercise of the power of eminent domain); and
3. Identify the source of the Tribal government's authority.

How can a Tribe demonstrate that it has the authority to manage and protect the air resources in areas within its jurisdiction?

First, the Tribe should clearly define the area over which it has jurisdiction. If the Tribe has authority over a reservation, the Tribe should describe the boundaries of the reservation (e.g., a map and legal description). If the area includes areas not within the boundaries of a reservation, the Tribe should also submit an opinion from the Tribal attorney that describes the basis for the Tribe's assertion of authority (e.g., Tribal constitutions, by-laws, charters, executive order, codes, or ordinances).

How can a Tribe demonstrate the capacity to be considered an "affected State" under Title V of the Clean Air Act?

The EPA Regional Offices will be making the eligibility determinations for Tribes that want to be considered "affected States" on a case-by-case basis. EPA Regional Offices will probably want more documentation on the capacity issue than the bare minimum. The minimum would be to describe the agency of the Tribe that would be responsible for receiving the notices. To demonstrate its ability to review permit applications and proposed Title V permits, tribes are encouraged to submit information describing previous management experience. Examples of previous management experience could include any of the following:

1. A program under the Indian Self-Determination and Education Assistance Act, the Indian Mineral Development Act, or the Indian Sanitation Facility Construction Activity Act;
2. A list of existing environmental or public health programs administered by the Tribe, plus a copy of related Tribal laws, policies, and regulations;
3. A description of the entity that exercises the executive, legislative, and judicial functions of the Tribal government;
4. A description of the agency of the Tribe that will be  responsible for administering the Tribe's Clean Air Act  program (and a description of the relationship between this agency and the regulated sources); or
5. A description of the technical and administrative capabilities of the Clean Air Act program staff, or a description of a plan for acquiring administrative and technical expertise. The plan should address how the Tribe will obtain the funds to acquire  this expertise.