TAS and TIP
Swinomish Tribe and the
Incremental Approach
2013
1
Two areas of Air Quality Regulation
• On reservation – Open Burning
via TAS and TIP
• On and around reservation via
monitoring and influence on Air
Quality Designation Process
2
Questions and Vision
• What does tribal leadership want in
the long run?
• What does air program staff have
capacity to take on (in short –
medium time frame)?
• What will tribe gain, at what cost?
3
Inherent Authority
• Tribes have all powers of sovereign except
those withdrawn by treaty or Congress (or
court interpretation)
• Authority to regulate trust land and
members under tribal law is clear
• Authority of non-Indians on fee lands
narrowed by Supreme Court over last 25
years. Montana v. US, 450 US 544 (1981)
and progeny
4
Montana Exceptions -Tribes lack
authority over non-Indians on nonIndian lands except:
• 1st exception - “consensual relationship”
(i.e. commercial dealings, a contract or lease
with tribe)
• 2nd exception – “where conduct threatens
or has some direct effect on the political
integrity, the economic security or the health
and welfare [environment] of the Tribe.”
5
Court Narrows Inherent Authority
and Montana Exceptions
• State authority over tribal lands condemned for
•
•
federal reservoir project. South Dakota v.
Bourland (1993).
Tribe has no authority over accident between
non-Indians on state highway right-of-way. Not
crucial to [2nd exception]. Straite v. A1
Contractors, (1997).
Struck down hotel occupancy tax on fee by
Navajo Nation. Consensual “Relationship in one
area does not trigger civil authority in another.”
Atkinson Trading Co. v. Shirley (2001).
Exceptions triggered by “non-member conduct
that threatens Tribe.”
6
Recent cases where Tribal
Authority upheld
• Armed takeover of Tribal Gov. Center and casino by
outside group working for ousted former tribal faction
within tribal jurisdiction. Attorney’s Process and
Investigation Services v. Sac & Fox (2010)
•
• Threat to political integrity, econ and health and welfare
(threat of wider violence)
• Non-Indian trespassed, started unpermitted fire leading
to major wildfire. Sufficient interest in property rights
and regulation to prevent massive damage to tribal
natural resources. Elliott v. White Mt Apache. (2009)
• Regulations intended to secure political and economic
well-being
7
Inherent Authority and
Environmental Protection
• Courts seem more willing to uphold
•
•
environmental regulatory authority of tribes
EPA finds action regulated by environmental
laws have “serious and substantial impacts on
human health and welfare.” Upheld in Montana
v. EPA (1998)
Court upheld EPA treatment as a state for Clean
Water Act for tribe, finding regulation of water
quality a “core gov. function…critical to selfgov.” Wisconsin v. EPA (2001)
8
Treatment as a State (TAS)
• Regulatory authority, including over
non-Indians on reservation, may be
delegated to tribes under CAA
• Treat tribe same as state for
purposes of CAA
• Tribe may take authority for all
delegable portion of the Act or for
certain sections
9
Clean Air Act Delegation
• Clear Congressional authority to delegate
to Tribes regulation over all sources within
exterior boundaries of reservation
• Only EPA or tribe may regulate air quality
on Reservation. Arizona Public Service
Company v. EPA. (2000)
• Delegable Programs include: Open
Burning, Title V, Effected State, and soon,
Minor NSR
10
Swinomish Vision and Approach
• Long-term interest in taking delegation of
entire CAA for sovereignty, health and
environmental protection
• Proceed incrementally – small bites we can
swallow
• Already had burn permit program under
tribal ordinance with reasonable compliance
• TAS would give federal hammer for few
non-tribal who resist regulation
11
Swinomish Air Quality Program
• Over 10 years of gaseous criteria pollutant
monitoring
• Due to major adjacent Title V sources and
new Ozone and Nox standards data shows
NAA now for ozone and trend in NOx
• Struggling to maintain monitoring funding
• IAQ program and completed woodstove
change-out
• Ongoing Burn permits under tribal ordinance
12
Examples to Draw From
• Current Tribal Air Code
• Federal Rules for Reservations
(FARR) in NW states – Open
Burning Rules (meet or exceed)
• Surrounding jurisdictions (similar
makes it easier to get non-tribal
compliance)
13
Federal Air Rules for Reservations
in WA, OR and ID (FARR)
• EPA has adopted FARR to implement
CAA on reservations in NW and “level
the playing field”
• Open burning – prohibited materials,
burn bans
• Industrial rules limiting visible and
fugitive emissions, PM, sulfur dioxide,
and sulfur in fuels
14
Drafting TIP
• Air Analyst outlines what he would like to
see including changes from current code
• Drafting TIP – body is amended tribal
code with additional (non-code) sections
to address CAA process and EPA
requirements
• Specific exclusion from TIP of portions of
tribal code EPA cannot approve under CAA
15
Internal and Informal
Review and Editing
• Review within Air Program – edit
• Send to certain EPA staff (Legal and
Program) for informal comments
• Edit and explain based on comments
• Swinomish Legal review and edits
• Back to EPA for second round of informal
comments
• Edit and explain in cooperation w/ Legal
16
Submission of Draft to EPA
• Final draft developed with tribal
Legal
• Submission to EPA with cover
letter from Chairman
• EPA reviews and approves draft
17
Tribal Formal Adoption and
CAA Process
• Once EPA approves draft we start formal
adoption process
• Follow tribal and CAA Notice and Hearing
requirements for final adoption
• Notice requirements
• Public hearing (Swinomish Planning
Commission)
• Submit to Tribal Senate (Council) for
adoption
• Submission to EPA for final approval
18
Federal Notice and Hearing
40 CFR 51.102
• Public hearing prior to tribal adoption and
•
•
•
•
submission to EPA
“Reasonable Notice” to public at least 30 days
prior to hearing
Notice to EPA Administrator, local air agencies
and any state significantly impacted
Record of hearing (witness list and text)
Certification that hearing was in accordance with
fed regulations
19
Swinomish Open Burning
TIP Provisions
• Calling burn bans
• Burn permits, conditions and fees
• Prohibited materials
• Burn notifications and inspections
• Enforcement, penalties and damages
• Public information and hearings
• Appeals and due process
20
Swinomish Air Program Delegations
• TAS Section 105 Program
• Affected State
• TIP Open Burning (in review)
Future
• Section 126? – petition for finding a major
source in violation of NAAQS
• Minor NSR?
• Continued monitoring and designation issue.
21
Regulation of Non-Tribal Sources
on Reservation
• Treatment as a State and EPA-
approved TIP give clear tribal authority
• Tribes may choose portions of CAA
that are most useful to their situation
• Lack of resources and desire to
proceed with caution may mean
incremental approach best for some
tribes
22