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:
- be recognized by the U.S. Secretary
- have a governing body that is currently
carrying out substantial governmental duties and
- 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
- 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
- Describe the form of the Tribal government;
- 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
- Identify the source of the Tribal
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:
- A program under the Indian Self-Determination
and Education Assistance Act, the Indian Mineral
Development Act, or the Indian Sanitation Facility
Construction Activity Act;
- A list of existing environmental or
public health programs administered by the Tribe,
plus a copy of related Tribal laws, policies, and
- A description of the entity that exercises
the executive, legislative, and judicial functions
of the Tribal government;
- 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
- 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.