Air Resources | Regulatory Requirements
Direct Federal Implementation of Environmental Laws in Indian Country - EPA's Role as Regulator
Environmental program responsibility requires capability and significant resources, among other things. Tribal governments do not always find it practical to assume full responsibility for EPA programs. Based upon a variety of factors, often including program costs, assistance and maintenance costs, and availability of technical expertise, tribal governments may focus on certain high-priority activities, but may decide not to assume an entire regulatory program. When tribes decide not to undertake certain activities under EPA's programs or not to apply for entire programs, EPA will seek to directly implement the environmental programs, as appropriate. EPA may also directly implement certain environmental management programs where federal statutes preclude tribal eligibility.
Tribal Assumption of Federal Environmental Laws
In the EPA Indian Policy, EPA announced its support for Tribal Assumption of Federal Environmental Laws under federal statutes, stating, among other things, that "[t]he Agency will recognize tribal governments as the primary parties for setting standards, making environmental policy decisions, and managing programs for reservations, consistent with Agency standards and regulations."
Three environmental statutes - the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), and the Clean Air Act (CAA) - explicitly authorize EPA to "treat tribes in the same manner as states" (TAS) for purposes of implementing various environmental programs. In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) explicitly include a provision that affords tribes substantially the same treatment as states with respect to certain provisions of the Act, while the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also provides a role for tribes. Although the Toxic Substances Control Act (TSCA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) do not explicitly provide for TAS, EPA has taken the position that it has the discretion to approve tribes to implement certain programs in the same manner as states in order to fill gaps in how the statutes are implemented in Indian country.
For tribes to assume many of EPA's regulatory programs, they generally must go through the TAS process and meet the following criteria:
- The tribe must be federally-recognized
- The tribe must have or be able to exercise substantial governmental powers
- The tribe must have or have been delegated jurisdiction over the area in question
- The tribe must be reasonably expected to have the capability to effectively implement a program
In general, once a tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and capability for each subsequent program. If a tribe does not have capability, it must have a plan for acquiring capability over time. A capability showing is required because each program may require different skills and activities to provide protection that meets the requirements of specific statutes and regulations.
Perhaps the most important of the tribe-specific eligibility criteria is whether the functions to be exercised by a tribe are within the applicant tribe's jurisdiction. EPA asks tribes that are applying for regulatory programs to demonstrate in their applications that they have adequate jurisdiction over the areas to be regulated. Under principles of federal Indian law, tribes generally have inherent sovereign authority to regulate both their members and land held in trust (although specific statutes may have affected this general principal for some tribes). Depending on the scope of the application, EPA may also need to evaluate whether a particular tribe has jurisdiction over nonmember activities on nonmember-owned fee lands within the boundaries of an Indian reservation. Jurisdiction over nonmember activities on fee lands may come from two potential sources: a tribe may have inherent authority over these activities; or Congress may, by statute, delegate federal authority to a tribe. Tribal applications for authorization to administer the program are sent to EPA's Regional Administrators.
EPA has made a number of "treatment in the same manner as a State" determinations for tribes, most of which involved findings that tribes are eligible for grants under the CWA. EPA has approved twenty-seven tribes to set water quality standards under section 303 of the CWA. One tribe has received primacy under the SDWA. Five tribes have received program approval under the CAA. Approximately 30 tribes operate pesticide certification or enforcement programs authorized by FIFRA under cooperative agreements with EPA.
The Clean Air Act
The CAA is designed to "protect and enhance the nation's air resources so as to protect the public health and welfare and the productive capacity of the population." The CAA directs EPA to establish national standards for ambient air quality and for EPA, tribes, and states to implement, maintain, and enforce these standards through a variety of mechanisms; tribes are expressly eligible for TAS. CAA regulations appear at 40 CFR Parts 50-99. EPA's Tribal Air Web site provides information about CAA issues affecting tribes. The Clean Air Act Tribal Authority Rule establishes eligibility requirements for TAS, EPA's Tribal Air Program Resources Web site provides information.
Training and Technical Information
National Ambient Air Quality Standards
EPA establishes national ambient air quality standards (NAAQSs) to limit levels of "criteria pollutants:" carbon monoxide, lead, nitrogen dioxide, particulate matter, ozone, and sulfur dioxide. Geographic areas that meet NAAQSs for a given pollutant are designated as attainment areas; those that do not meet NAAQSs for a given pollutant are designated as non-attainment areas. Under Section 301 of the CAA, tribes may, but are not required to, apply to develop a Tribal Implementation Plan (TIP) to identify sources of air pollution and to determine what reductions are necessary to meet federal air quality standards. Revised NAAQS for particulates and ozone became effective in 2004.
New Source Performance Standards
EPA establishes New Source Performance Standards (NSPS), which are nationally uniform emission standards for new and modified stationary sources falling within particular industrial categories. NSPSs are based on the pollution control technology available to that category of industrial source (40 CFR Part 60).
National Emission Standards for Hazardous Air Pollutants
EPA establishes National Emission Standards for Hazardous Air Pollutants (NESHAPs) to control particular hazardous air pollutants (HAPs). Section 112(c) of the CAA directs EPA to develop a list of sources that emit any of 188 HAPs and to develop regulations for these categories of sources. To date, EPA has listed 185 source categories and developed a schedule for establishing emission standards. The emission standards are developed for both new and existing sources based on "maximum achievable control technology" (MACT). MACT is defined as the control technology that achieves the maximum degree of reduction in the emission of HAPs, taking into account cost and other factors.
Title II of the CAA pertains to mobile sources, such as cars, trucks, buses, and planes, as well as small engines, like lawn mowers, and large stationary engines used in industry and pipelines. EPA uses technology forcing emissions requirements, reformulated gasoline, automobile pollution control devices, and vapor recovery nozzles on gas pumps, among other mechanisms, to regulate mobile air emission sources. While almost all mobile source regulation is reserved exclusively for EPA, eligible and approved TAS tribes may participate in enforcing mobile source enforcement through vehicle inspection and maintenance programs; states are required to participate in such programs.
Sulfur Dioxide/Nitrogen Oxide Emissions
Title IV of the CAA establishes a sulfur dioxide/nitrogen oxide emissions program designed to reduce the formation of acid rain. Sulfur dioxide releases can be reduced under a "cap and trade" program by granting to certain sources limited emissions allowances, which are below previous levels of sulfur dioxide releases. Commercial electric generators (natural gas, oil or coal fired) are the primary subjects of this title. Tribal governments that own and operate municipal waste combustors, sewage sludge incinerators, or large boilers/generators may be subject to these requirements. Tribal governments with these types of sources may choose to seek to obtain federal regulatory authority over this program.
Major Source Permit Program
Title V of the CAA requires that all "major sources" (and certain minor sources) of air pollution obtain an operating permit, and such sources may be required to submit information about emissions, control devices, and the general process at the facility in the permit application. Permits may limit pollutant emissions and impose monitoring, record keeping, and reporting requirements. One purpose of the operating permit is to include in a single document all air emissions requirements that apply to a given facility. Tribal governments may apply for eligibility to issue and monitor Title V permits.
Stratospheric Ozone Protection
Title VI of the CAA is intended to protect stratospheric ozone by phasing out the manufacture of ozone-depleting chemicals and restricting their use and distribution. The production of "Class I" substances, including 15 kinds of chlorofluorocarbons and chloroform, was phased out (except for essential uses) in 1996. EPA's Stratospheric Ozone Information Hotline, at (800) 296-1996, or the Ozone Depletion Web site, provides general information about regulations promulgated under Title VI of the CAA.
Mandates a federal focus on the prevention of serious chemical accidents that could affect public health and the environment. Under these requirements, facilities must identify and assess their chemical hazards and carry out certain activities designed to reduce the likelihood and severity of accidental chemical releases. Information summarizing these activities is available to tribes, the public, and all other stakeholders. Using this information, tribes and tribe members can work with industry to reduce risks to the community from chemical accidents.
In the broadest sense, risk management planning relates to tribal emergency preparedness and response, to pollution prevention at facilities, and to worker safety. In a more focused sense, it forms one element of an integrated approach to safety and complements existing industry codes and standards. The risk management planning requirements build on the Occupational Safety and Health Administration's (OSHA) Process Safety Management Standard.
CAA Implementation in Indian Country
EPA is authorized to directly implement the CAA in Indian country. However, over 100 tribes are now pursuing the development of air quality management programs, and many more have expressed an interest. Many tribes are monitoring their air for a variety of pollutants, from ozone and particulate matter, to mercury and acid rain, as well as developing emission inventories to understand the sources of air pollution on the reservations. Some tribes have been approved to implement CAA provisions and are developing TIPs to address violations of air quality standards; such tribes expect to apply for approval to run ongoing programs in the near future. Other tribes are developing operating permit programs for both major and minor sources of air pollution
Many are actively participating in partnerships with EPA and state regulators to address air quality problems that cross jurisdiction boundaries. An example of these partnerships is air toxics risk assessments being done cooperatively in the Phoenix area by three tribes and the State of Arizona. In addition, as many as 70 tribes are active partners in regional haze planning organizations, and around 100 tribes participate in the Western Regional Air Partnership.
National Environmental Policy Act
The National Environmental Policy Act (NEPA) was one of the first laws written to establish the broad national framework for protecting our environment while bolstering the health and welfare of humankind. NEPA directs federal agencies to assess the potential environmental impacts of their proposed major actions significantly affecting the human environment and inform the public about those potential impacts. For Indian country and in other tribal areas, the environmental impacts of federal agency actions may involve such things as water quality or quantity issues, air quality issues, land use, or potential impacts to sacred sites, items of cultural patrimony, and traditional hunting, fishing, and gathering rights. Understanding the range of potential environmental impacts enables federal agencies to integrate environmental values into their decision-making processes.
Environmental assessments may be used by a federal agency to determine whether the environmental impacts of the agency's proposed action are likely to be significant. If the impacts are not expected to be significant, federal agencies prepare a finding of no significant impact. If the impacts are likely to be significant, federal agencies prepare an environmental impact statement (EIS). As part of the NEPA process, federal agencies, including EPA, with jurisdiction by law or with special expertise with respect to any environmental impact involved, or which are authorized to develop and enforce environmental standards, must comment on another agency's EISs.
EPA also has unique comment responsibility under Section 309 of the Clean Air Act because the Agency must review and comment in writing on the environmental impact of, among other things, any newly authorized federal projects for construction and any major federal agency action significantly affecting the environment. Thus, as part of the NEPA process, EPA reviews all EISs prepared by federal agencies, and may also review some environmental assessments. EPA's comment letters are available to tribes and tribal members upon request and EIS comment summaries are available at the EPA Comments on Environmental Impact Statements Web site.
Under the NEPA process, tribes generally are invited to comment on EISs when the effects of the federal agency's action may be on a reservation, and federal agencies should actively solicit tribal government participation as a "cooperating agency" when the project's effects are on a reservation. Agencies should also invite tribes to comment and be a "cooperating agency" when non-reservation tribal resources are affected.
Identifying, understanding and addressing the potential environmental impacts to tribes and Indian country and in other tribal areas are key elements of the NEPA process. Indeed, the Council of Environmental Quality's regulations implementing NEPA specify that federal agencies should consult with affected tribal governments through the scoping process, and identify possible conflicts between a proposed action and the objectives of tribal reservation land use plans, policies and controls. In addition to any scoping comments and comments on draft EISs which the tribes and individual tribal members may offer, EPA uses its knowledge of Indian country to facilitate the identification of potential issues during scoping so that the NEPA process addresses issues that could impact tribes and tribal members.
For certain programs, EPA may also prepare an EIS for an action. In such cases, EPA solicits participation of the tribal government as a "cooperating agency" when the project's effects may impact Indian country and other tribal areas. As part of the EIS process, EPA fully considers potential impacts to the tribal government and/or tribal members as part of its consideration of other relevant environmental statutes, regulations and Executive Orders related to the proposed action. EPA seeks to ensure that mitigation plans developed by EPA for the action incorporate tribal concerns and, for project effects that may impact Indian country or other tribal areas, that the tribal government and/or tribal members will have meaningful involvement in the development and, as appropriate, implementation of these mitigation plans.
EPA's Clean Air Enforcement program addresses stationary sources, including manufacturers, processors, refiners, and utilities, and mobile sources and is designed to return violators to compliance and deter misconduct in others, eliminate or prevent environmental harm, and preserve a level playing field for responsible companies that abide by the laws.
EPA's Criminal Enforcement program uses stringent sanctions, including jail sentences, to promote deterrence and help ensure compliance in order to protect human health and the environment. Criminal enforcement is often used against the most serious environmental violations as well as those which involve egregious negligence or conduct involving intentional, willful or knowing disregard of the law.
Clean Air Inspections
EPA's Clean Air Compliance Monitoring Web site offers information on conducting inspections stationary (major and minor facilities), mobile sources and other sources of air pollutants. This information, including inspection manuals and other guidance, provides a uniform framework for assuring compliance with clean air laws and regulations in order to protect human health and the environment.
For related information visit EPA’s National Indian Country Enforcement and Compliance Assurance Priority site and EPA’s Enforcement and Compliance Assurance Program in Indian country site.