Indian Tribes: Air Quality Planning and Management; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: The Clean Air Act directs EPA to promulgate regulations

specifying those provisions of the Act for which it is appropriate to

treat Indian Tribes in the same manner as States. For those provisions

specified, a Tribe may develop and implement one or more of its own air

quality programs under the Act. This proposed rule sets forth the CAA

provisions for which it is appropriate to treat Indian Tribes in the

same manner as States, establishes the requirements that Indian Tribes

must meet if they choose to seek such treatment, and provides for

awards of Federal financial assistance to Tribes. EPA requests public

comments on all aspects of today's proposal.

DATES: Comments on this proposed rule must be received on or before

November 23, 1994.

ADDRESSES: Comments must be mailed (in duplicate, if possible) to the

EPA Air Docket Office (6102), Attn: Air Docket No. A-93-3087, room

M1500, 401 M St., SW., Washington, DC 20460. Copies of the comments and

supporting documents, contained in Docket No. A-93-3087, are available

for public inspection and review Monday through Friday from 8 a.m.--4

p.m., except legal holidays. Starting October 1, 1994, dockets will be

available for inspection from 8 a.m.--5:30 p.m., except legal holidays.

A reasonable charge may be assessed for photocopying of materials.

Comments and data may also be submitted electronically by any of

three different mechanisms: by sending electronic mail (e-mail) to:

[email protected]; by sending a ``Subscribe'' message to

[email protected] and once subcribed, send your

comments to RIN-2060-AE95; or through the EPA Electronic Bulletin Board

by dialing 202-488-3671, enter selection ``DMAIL,'' user name ``BB-

USER'' or 919-541-4642, enter selection ``MAIL,'' user name ``BB-

USER.'' Comments and data will also be accepted on disks in WordPerfect

in 5.1 file format or ASCII file format. All comments and data in

electronic form should be identified by the docket number A-93-3087.

Electronic comments on this proposed rule, but not the record, may be

viewed or new comments filed online at any Federal Depository Library.

Additional information on electronic submissions can be found in Part

VII of this document.

FOR FURTHER INFORMATION CONTACT: Christina Parker, Office of Air and

Radiation (6102), U.S. Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460 at (202) 260-6584.

SUPPLEMENTARY INFORMATION: This preamble is organized according to the

following outline:

I. Background of the Proposed Rule

A. Development of the Proposed Rule

1. Federal/EPA Indian Policy

2. Consultation with Tribal Representatives

B. General Structure of the CAA

C. Description of Section 301(d) of the CAA

II. Jurisdictional Issues

A. Delegation or Grant of CAA Authority to Tribes

B. Federal Authority and Protection of Tribal Air Resources

C. Objective of Tribal Primacy and Self-Determination

III. Tribal CAA Programs

A. New Process for Determining Eligibility for CAA Programs

1. Federally Recognized Tribe

2. Substantial Governmental Duties and Powers

3. Jurisdiction Requirement

4. Capability Requirement

5. Tribal Consortia

B. Provisions for which Tribal Implementation is Appropriate

1. Tribal Implementation is Generally Appropriate

2. Exceptions to Tribal Implementation

a. National Ambient Air Quality Standards Applicable

Implementation Plan Submittal Deadlines and Related Sanctions

b. Visibility Implementation Plan Submittal Deadlines

c. Interstate Air Pollution and Visibility Transport Commission

Plan Submittal Deadlines

d. Criminal Enforcement

e. Title V Operating Permit Program Submittal Deadlines,

Implementation Deadlines and Other Requirements

f. Small Business Assistance Program Submittal Deadline and

Compliance Advisory Panel Requirement

3. Stringency of Tribal Regulations

4. Provisions for which No Separate Tribal Program Required

C. Procedures for Review of Tribal Air Programs

1. Modular Approach to Tribal Air Programs

2. Procedures for Reviewing and Approving Tribal Implementation

Plans (``TIPs'')

3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')

D. Revisions to CAA Implementing Regulations

1. 40 CFR Part 35--State[, Tribal] and Local Assistance

2. 40 CFR Part 49--Tribal Clean Air Act Authority

3. 40 CFR Part 50--National Primary and Secondary Ambient Air

Quality Standards

4. 40 CFR Part 51--Requirements for Preparation, Adoption, and

Submittal of Implementation Plans

5. 40 CFR Part 52--Approval and Promulgation of Implementation

Plans

6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs

7. 40 CFR Part 81--Designation of Areas for Air Quality Planning

Purposes

IV. Federal Financial Assistance

A. Sources of Funding Assistance

B. Tribal Eligibility for Air Grant Assistance

1. Section 103 Air Assessment Grants

2. Section 105 Air Program Grants

3. Tribal Agencies and Consortia

C. Use of EPA General Assistance Grants

D. Additional Administrative Requirements

V. Miscellaneous

A. Executive Order (EO) 12866

B. Regulatory Flexibility Act (RFA)

C. Executive Order (EO) 12875

D. Paperwork Reduction Act

VI. Request for Public Comments

VII. Electronic Filing of Comments

Addendum A: General Description of Clean Air Act Programs

Addendum B: List of EPA Regional Offices

I. Background of the Proposed Rule

A. Development of the Proposed Rule

This notice describes proposed regulatory changes to implement

section 301(d) of the Clean Air Act, as amended, 42 U.S.C. 7401, et

seq. (the ``Act'' or ``CAA''). Section 301(d) requires EPA to

promulgate regulations that provide for Indian Tribes, if they so

choose, to assume responsibility for the development and implementation

of CAA programs on lands within the exterior boundaries of their

reservations or other areas within their jurisdiction. This Tribal

authority will apply to all CAA programs which the EPA Administrator

determines to be appropriate in taking final action on this proposal.

An Indian Tribe that takes responsibility for a CAA program under this

rule would essentially be treated in the same way as a State would be

treated for that program, with any exceptions noted in this rule and

discussed below in this preamble.

1. Federal/EPA Indian Policy

In developing this proposed rule, EPA has acted on the principles

expressed in existing Federal policy statements regarding Indian

Tribes. On January 24, 1983, the President issued a Federal Indian

Policy stressing two related themes: (1) that the Federal government

will pursue the principle of Indian ``self-government'' and (2) that it

will work directly with Tribal governments on a ``government-to-

government'' basis. Presidential support was reaffirmed in an April 1,

1993 statement.

On November 8, 1984, in response to the 1983 Federal statement, EPA

adopted a policy statement and implementing guidance addressing the

administration of EPA environmental programs on Indian reservations.

EPA's policy is ``to give special consideration to Tribal interests in

making Agency policy, and to ensure the close involvement of Tribal

Governments in making decisions and managing environmental programs

affecting reservation lands.'' EPA committed to pursue certain

principles to meet this objective, including the following:

EPA recognizes Tribal Governments as sovereign entities with

primary authority and responsibility for the reservation populace.

Accordingly, EPA will work directly with Tribal Governments as the

independent authority for reservation affairs, and not as political

subdivisions of States or other governmental units.

* * * * *

In keeping with the principle of Indian self-government, the

Agency will view Tribal Governments as the appropriate non-Federal

parties for making decisions and carrying out program

responsibilities affecting Indian reservations, their environments,

and the health and welfare of the reservation populace. Just as

EPA's deliberations and activities have traditionally involved the

interests and/or participation of State Governments, EPA will look

directly to Tribal Governments to play this lead role for matters

affecting reservation environments.

See November 8, 1984 ``EPA Policy for the Administration of

Environmental Programs on Indian Reservations'' at p. 2. EPA

Administrator Carol M. Browner reaffirmed the 1984 policy in a

Memorandum issued on March 14, 1994.

2. Consultation With Tribal Representatives

In addition, EPA has consulted with Tribal representatives in

developing this proposed rule. EPA discussed preliminary issues

associated with the proposed rule at the ``First National Tribal

Conference on Environmental Management'' held in Cherokee, North

Carolina in May 1992 and the ``Second National Tribal Conference on

Environmental Management'' in Cherokee held in May 1994.

In the Fall of 1992, EPA met with Tribal representatives at three

outreach meetings in Chicago, Denver and San Francisco. These meetings

included a discussion of issues raised by this proposed rule as well as

EPA's efforts to assist Tribes in obtaining training in air quality

management. Overall, representatives of approximately 70 different

Tribes attended. In September 1993, EPA discussed a draft of this

proposed rule with representatives of approximately 40 Tribes at a

seminar sponsored by EPA and the Office of Native American Programs at

Northern Arizona University and a subsequent meeting with

representatives of State and local governments sponsored by the State

and Territorial Air Pollution Program Administrators/Association of

Local Air Pollution Control Officials. EPA has also consulted with

Tribal and State representatives periodically throughout the

development of the proposed rule.

EPA received comments both during and following the Tribal and

State outreach meetings. EPA has considered these comments in

developing today's proposed rule. To the extent any such commenters

have concerns that have not been adequately addressed by today's

proposal, they should submit formal written comments to EPA in response

to today's action. Any such comments must be received by the deadline

indicated at the outset of today's notice and submitted to the EPA

address specified above.

B. General Structure of the CAA

In order to fully understand this proposal, a basic understanding

of the structure of the CAA and its division of responsibilities

between EPA and the States is necessary. Such a description is set

forth below. In addition, a brief description of some of the many

programs contained in the CAA is set forth in Addendum A, as an

introduction and guidance to Tribes wishing to develop their own CAA

programs. Reading Addendum A in conjunction with today's proposed

action will also facilitate the reader's understanding of the

discussion that follows.

The CAA is implemented in two basic ways. The principal method is

through a cooperative partnership between the States and EPA. While

this partnership can take several shapes, generally EPA issues national

standards or Federal requirements and the States assume primary

responsibility for implementing these requirements. However, as a

prerequisite to assuming implementation responsibility, States must

submit their programs to EPA and must demonstrate that their programs

meet minimum Federal CAA requirements. Among these requirements is the

mandate that States demonstrate that they have adequate legal authority

and resources to implement the programs.

If a State program is approved or if the authority to implement a

Federal program is delegated to a State, EPA maintains an ongoing

oversight role to ensure that the program is adequately enforced and

implemented and to provide technical and policy assistance. An

important aspect of EPA's oversight role is that EPA retains legal

authority to bring an enforcement action against a source violating a

CAA program implemented by the States. Thus, if a State fails to

adequately enforce CAA requirements, EPA can step in and ensure that

they are followed.

An example of this cooperative Federal/State arrangement is

provided by Title V of the Act, 42 U.S.C. 7661-7661e, which contains

requirements for an operating permit program. Generally, the program

requires that certain sources of air pollution obtain permits which

contain all of the requirements under the Act applicable to such

sources. EPA has issued rules specifying the minimum requirements for

State permit programs. 57 FR 32250 (July 21, 1992). States are required

to develop programs consistent with minimum Federal requirements and to

submit those programs to EPA for approval. In those instances when

State programs are approved by EPA, the approved States will be

primarily responsible for implementing these provisions of the CAA. EPA

will maintain an active oversight role to provide necessary assistance

and to ensure that the EPA-approved State programs continue to be

implemented consistent with minimum Federal requirements.

In the second, less common form of CAA implementation, EPA is

primarily responsible both for setting standards or interpreting the

requirements of the Act and for implementing the Federal requirements

that are established. Under this approach, the Act provides little

formal role for States.1 In general, this approach is reserved for

programs requiring a high degree of uniformity in their implementation.

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\1\ States nevertheless often actively participate in federal

rulemakings and policy development even if the CAA does not call for

primary implementation by the States. EPA similarly encourages

Tribes to participate actively in EPA's rulemakings and policy

development.

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Title VI of the Act, which provides for the phase-out of certain

substances that deplete stratospheric ozone, is one such program, since

it affects products sold throughout interstate commerce. 42 U.S.C.

7671-7671q. Title VI is both a Federally established and Federally

managed program. EPA is charged with issuing the rules to implement the

phase-out. Through, for example, reporting requirements and

enforcement, EPA also ensures that the restrictions in production and

consumption of ozone-depleting substances that are called for by the

Act are, in fact, met.

Section 301(d)(2) of the Act authorizes EPA to issue regulations

specifying those provisions of the Act ``for which it is appropriate to

treat Indian tribes as States.'' 42 U.S.C. section 7601(d)(2). Thus,

the CAA programs where States have a formal implementation role will be

the programs that are directly affected by today's proposed action.

Conversely, those programs that are established and implemented

primarily by EPA will largely be unaffected by today's proposal.

C. Description of Section 301(d) of the CAA

Section 301(d)(1) of the CAA authorizes EPA to ``treat Indian

tribes as States'' under the Act, so that Tribes may develop and

implement CAA programs in the same manner as States within Tribal

reservations or in other areas subject to Tribal jurisdiction.2

For a Tribe to be eligible for such treatment it must be Federally

recognized (see section 302(r)) and must meet the three criteria set

forth in section 301(d)(2)(A)-(C). Briefly, these criteria consist of:

(1) a showing of an adequate governing body; (2) that is capable of

implementing the particular requirements of the CAA and applicable

regulations for which the Tribe is seeking program approval; and (3)

within the exterior boundaries of the reservation or other areas within

the Tribe's jurisdiction. The precise criteria are set forth in today's

proposed rule and are described in detail in Part III.A. below,

together with EPA's proposal as to how this eligibility determination

should be made.

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\2\ For convenience of expression, portions of this rule refer

only to Tribal programs within reservations. However, these

references should not be interpreted to limit Tribal programs solely

to lands within reservation boundaries since the CAA acknowledges

that tribes may possess authority over off-reservation lands.'' See

Part II.A, below.

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At the same time, the Act recognizes that it may not be appropriate

or feasible in all instances to treat Tribes and States identically.

Accordingly, EPA is required under section 301(d)(2) of the Act to

promulgate regulations ``specifying those provisions of [the CAA] for

which it is appropriate to treat Indian tribes as States.'' Tribes that

satisfy the criteria discussed above are eligible to implement those

provisions specified by EPA if the minimum Federal requirements set out

in the provisions have been met. In general, EPA is proposing that

Tribes be eligible to implement the same provisions as States, with

some exceptions, as set forth in today's proposed rule and discussed in

Part III.B. below.

In addition, section 301(d)(3) of the Act gives EPA the discretion

to promulgate regulations establishing the elements of Tribal

implementation plans (``TIPs'') and procedures for approval or

disapproval of those plans or portions thereof. See Addendum A, ``Title

I'' discussion. These regulations would be implemented in conjunction

with section 110(o) of the Act, which provides that any TIP that is

submitted to EPA under section 301(d) shall be reviewed in accordance

with the provisions for review of State implementation plans (``SIPs'')

set out in section 110, except as otherwise provided by this

regulation. Once effective, the TIP would be applicable to all areas

located within the exterior boundaries of the reservation. See section

110(o). In today's action, EPA is proposing TIP regulations and

procedures, as well as procedures for the review of other Tribal air

programs (``TAPs''). These procedures are discussed further in Part

III.C. below.

Finally, section 301(d) of the Act makes provision for EPA to

furnish grant and contract assistance to Tribes. See section 301(d)(1),

(5) of the CAA. The grant provisions proposed today are described in

Part IV of this preamble.

II. Jurisdictional Issues

A. Delegation or Grant of CAA Authority to Tribes

It is a settled point of law that Congress may, by statute,

expressly delegate Federal authority to a Tribe. United States v.

Mazurie, 419 U.S. 544, 554 (1975). See also South Dakota v. Bourland,

113 S. Ct. 2309, 2319-20 (1993); Brendale v. Confederated Tribes and

Bands of the Yakima Indian Nation, 492 U.S. 408, 426-28 (1989) (White,

J., for four Justice plurality). Such a delegation or grant of

authority can provide a Federal statutory source of Tribal authority

over designated areas, whether or not the Tribe's inherent authority

would extend to all such areas. It is EPA's proposed interpretation of

the CAA that the Act grants, to Tribes approved by EPA to administer

CAA programs in the same manner as States, authority over all air

resources within the exterior boundaries of a reservation for such

programs. This grant of authority by Congress would enable such Tribes

to address conduct on all lands, including non-Indian owned fee lands,

within the exterior boundaries of a reservation. Thus, this proposed

interpretation relates to the potential scope of regulatory

jurisdiction that may be exercised by eligible Tribes under EPA-

approved Tribal Clean Air Act programs (hereafter ``approved''

Tribes).3

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\3\ As indicated in Part III.B.4, in some instances qualifying

Tribes may have a role in CAA implementation without having to make

an entire program submittal.

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The Agency recognizes that a Tribe will generally have inherent

sovereign authority over air resources within the exterior boundaries

of its reservation. As stated in Mazurie, the sovereign authority of

Indian Tribes extends ``over both their members and their territory.''

419 U.S. at 557. Thus, Tribes generally have extensive authority to

regulate activities on lands that are held by the United States in

trust for the Tribe. See Montana v. United States, 450 U.S. 544, 557

(1981). Furthermore, a Tribe ``may * * * retain inherent power to

exercise civil authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or has some direct

effect on the * * * health or welfare of the tribe.'' Montana, 450 U.S.

at 566. However, a Tribe's inherent authority must be determined on a

case-by-case basis, considering whether the conduct being regulated has

a direct effect on the health or welfare of the Tribe substantial

enough to support the Tribe's jurisdiction over non-Indians. See

Brendale, 492 U.S. 408; see also 56 FR 64876 at 64877-64879 (Dec. 12,

1991).4 Such a determination is not necessary with a direct grant

of statutory authority.5

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\4\ In proposing to interpret the CAA as granting approved

Tribes authority over all air resources within the exterior

boundaries of a reservation, EPA recognizes that its approach under

some of the other statutes it administers relies on a Tribe's

inherent authority.

\5\ Even without this proposed direct grant of authority, Indian

Tribes would very likely have inherent authority over all activities

within reservation boundaries that are subject to CAA regulation.

The high mobility of air pollutants, resulting area-wide effects,

and the seriousness of such impacts, would all tend to support

Tribal inherent authority; as noted below, these factors also

underscore the desirability of cohesive air quality management of

all air pollution sources within reservation boundaries including

those air pollution-related activities on fee lands within

reservation boundaries. See, e.g., Bourland, 113 S. Ct. at 2320

(reaffirming the Montana ``exceptions to `the general proposition

that the inherent sovereign powers of an Indian tribe do not extend

to the activities of nonmembers of the tribe''') (citation omitted)

(1993); see also, e.g., CAA section 101(a)(2), 42 U.S.C. section

7401(a)(2); H.R. Rep. No. 490, 101st Cong., 2d Sess. (1990); S. Rep.

No. 228, 101st Cong., 1st Sess. (1989).

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EPA's proposed position that the CAA constitutes a statutory grant

of jurisdictional authority to Tribes is consistent with the language

of the Act, which authorizes EPA to treat a Tribe as a State for the

regulation of ``air resources within the exterior boundaries of the

reservation or other areas within the tribe's jurisdiction.''6

Section 301(d)(2)(B) (emphasis added). EPA believes that this statutory

provision, viewed within the overall framework of the CAA, reflects a

territorial view of Tribal jurisdiction and authorizes a Tribal role

for all air resources within the exterior boundaries of Indian

reservations without distinguishing among various categories of on-

reservation land. EPA believes a territorial approach to air quality

regulation best advances rational, sound air quality management. Air

pollutants disperse over areas several and sometimes even hundreds of

miles from their source of origin, as dictated by the physical and

chemical properties of the pollutants at issue and the prevailing winds

and other meteorological conditions. The high mobility of air

pollutants, resulting areawide effects and the seriousness of such

impacts, underscores the undesirability of fragmented air quality

management within reservations.

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\6\ As indicated above, EPA interprets the second clause of this

provision as meaning that Tribes may also assert jurisdiction over

air resources that are not within the boundaries of their

reservations. However, EPA has not interpreted this clause as a

direct grant of jurisdictional authority to Tribes with respect to

such off-reservation air resources. Rather, where a Tribe submits a

program asserting jurisdiction over air resources outside the

boundaries of a reservation, EPA will require a demonstration of the

factual and legal basis for the Tribe's inherent authority over such

resources, consistent with relevant principles of Federal Indian

law.

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Moreover, language contained in two other provisions of the CAA,

which expressly recognizes Tribal authority over all areas within the

exterior boundaries of the reservation provides particularly compelling

evidence that Congress intended to adopt this territorial approach. One

such provision is in the CAA program governing the amount of

incremental air quality deterioration allowed in ``clean air'' areas.

Section 164(c) of the CAA provides that ``[l]ands within the exterior

boundaries of reservations of federally recognized Indian Tribes may be

redesignated [with regard to the prevention of significant

deterioration of air quality] only by the appropriate Indian governing

body.''

In addition, section 110(o) of the CAA provides that upon approval

by EPA, Tribal Implementation Plans (TIPs) ``shall become applicable to

all areas * * * located within the exterior boundaries of the

reservation, notwithstanding the issuance of any patent and including

rights-of-way running through the reservation.'' Section 110(o) of the

Act recognizes that approved Tribes will exercise authority over all

areas within the exterior boundaries of a reservation for purposes of

TIPs. TIPs, in turn, are the administrative tools for implementing the

requirements under Title I of the CAA necessary to assure attainment

and maintenance of the national ambient air quality standards (NAAQS),

one of the central CAA programs. Significant regulatory entanglement

and inefficiencies could result if Tribes have jurisdiction over such

plans pursuant to section 110(o) of the Act, but are not found to have

jurisdiction within reservation boundaries over non-TIP CAA programs.

For example, a stationary source located on an area of a reservation

over which the Tribe was found to lack inherent authority would be

subject to the Tribal Implementation Plan provisions imposing NAAQS-

related requirements, but might be determined to be subject to State

regulation for some other CAA program. This entanglement could

potentially subject a source to differing local regulatory authorities,

possibly with conflicting goals and approaches, and potentially

duplicative or inconsistent reporting, monitoring and other regulatory

requirements. There is no evidence that Congress intended to create

such complex jurisdictional entanglements. These entanglements are

reasonably avoided by interpreting the CAA as granting to approved

Tribes regulatory authority over all air resources within a

reservation.

Further, a grant of authority to Tribes for NAAQS-related purposes

alone would conflict with the implementation of the operating permit

program called for by Title V of the Act. Title V explicitly prohibits

partial State permit programs unless, at a minimum, such a program

``ensures compliance with * * * [a]ll requirements of [Title] I * * *

applicable to sources required to have a permit.'' Section 502(f)

(emphasis added); see also section 502(b)(5)(A) (requires permitting

authorities ``to have adequate authority to * * * assure compliance by

sources required to have a permit under this title with each applicable

standard, regulation, or requirement under this Act'') (emphasis added)

and section 504(a) (each permit issued under Title V ``shall include *

* * conditions as are necessary to assure compliance with the

applicable requirements of this [Act], including the requirements of

the applicable implementation plan''). Since States could not

unilaterally ``ensure compliance with * * * [a]ll requirements of

[Title] I'' within Indian reservations because Tribes are granted

authority over implementation plans under section 110(o), it appears

that States could not, in fact, submit Title V permit programs for

Indian reservations that would conform with section 502(f) or other

provisions of Title V.

A basic rule of statutory construction is to avoid interpreting a

statute in a manner that would nullify or render meaningless a

statutory provision.7 Because section 110(o) confers on approved

Tribes the authority to administer Title I programs on Indian

reservations, the provision of Title V requiring that a permit program

must at a minimum ensure compliance with the applicable requirements of

Title I cannot be met by States seeking authority to implement a Title

V program within the boundaries of a reservation. These provisions can

reasonably be harmonized by construing the Act as generally granting

approved Tribes CAA regulatory authority over all air resources within

the exterior boundaries of their reservations. Thus, this statutory

structure further supports EPA's proposed interpretation of the CAA as

granting approved Tribes authority within reservation boundaries.

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\7\See U.S. v. Nordic Village, Inc., 112 S.Ct. 1011, 1015 (1992)

(rejecting an interpretation that ``violates the settled rule that a

statute must, if possible, be construed in a fashion that every word

has some operative effect'') (citation omitted); Boise Cascade Corp.

v. U.S. EPA, 942 F.2d 1427, 1432 (9th Cir. 1992) (``[u]nder accepted

canons of statutory interpretation, we must interpret statutes as a

whole, giving effect to each word and making every effort not to

interpret a provision in a manner that renders other provisions of

the same statute inconsistent, meaningless or superfluous'')

(citations omitted).

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Accordingly, in light of the statutory language and the overall

statutory scheme8, EPA proposes to exercise the rulemaking

authority entrusted to it by Congress to conclude that the CAA grants

approved Tribes authority over all air resources within the exterior

boundaries of a reservation. See generally Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837, 842-45 (1984).9

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\8\This proposed interpretation of the CAA as generally

delegating jurisdictional authority to approved Tribes is also

supported by the legislative history, which provides some additional

evidence of Congressional attention to this issue: ``the Act

constitutes an express delegation of power to Indian tribes to

administer and enforce the Clean Air Act in Indian lands'' (citation

to Brendale omitted). S. Rep. No. 228, 101st Cong., 1st Sess. 79

(1989).

\9\Further, it is a well-established principle of statutory

construction that statutes should be construed liberally in favor of

Indians, with ambiguous provisions interpreted in ways that benefit

tribes. See County of Yakima v. Confederated Tribes and Bands of the

Yakima Indian Nation, 112 S.Ct. 683, 693 (1992). In addition,

statutes should be interpreted so as to comport with tribal

sovereignty and the federal policy of encouraging tribal

independence. See Ramah Navajo School Board, Inc. v. Bureau of

Revenue of New Mexico, 458 U.S. 832, 846 (1982).

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Based on recent Supreme Court case law, EPA has construed the term

``reservation'' to incorporate trust land that has been validly set

apart for use by a Tribe, even though that land has not been formally

designated as a ``reservation.'' See 56 FR at 64,881 (Dec. 12, 1991);

see also Oklahoma Tax Commission v. Citizen Band Potawatomi Indian

Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). EPA will be guided by

relevant case law in interpreting the scope of ``reservation'' under

the CAA.

Section 301(d)(2)(B) of the CAA also provides that a Tribe may be

treated in the same manner as a State for functions regarding air

resources ``within the exterior boundaries of the reservation or other

areas within the tribe's jurisdiction'' (emphasis added). The

emphasized language envisions potential Tribal jurisdiction under the

CAA over areas that lie outside the exterior boundaries of a

reservation, upon a fact-based showing of a Tribe's inherent authority

over sources located on such lands. Thus, this provision authorizes an

eligible Tribe to develop and implement Tribal air quality programs on

off-reservation lands that are determined to be within the Tribe's

inherent jurisdiction. Accordingly, for purposes of this rule, EPA

proposes to conclude that an eligible Tribe may be able to implement

its air quality programs on off-reservation lands up to the limits of

``Indian country,'' as defined in 18 U.S.C. section 1151, provided the

Tribe can adequately demonstrate authority to regulate air quality on

the off-reservation lands in question under general principles of

Indian law.

In sum, EPA is proposing to interpret the CAA as granting approved

Tribes regulatory authority over all air resources within the exterior

boundaries of their reservations. Thus, no independent fact-based

showing of inherent Tribal jurisdiction will be required for air

resources located within such reservation boundaries. EPA recognizes

that ``other'' off-reservation areas may fall within Tribal

jurisdiction. EPA is proposing to interpret the CAA as providing no

blanket grant of Federal authority for such areas. Thus, for off-

reservation areas, a Tribe must demonstrate that it has inherent

authority over sources it seeks to regulate under general principles of

Indian law.

B. Federal Authority and Protection of Tribal Air Resources

The CAA authorizes EPA to protect air quality throughout Indian

country. EPA intends to use this authority to remedy and prevent gaps

in CAA protection for Tribal air resources. EPA's authority to provide

this CAA protection is based in part on the general purpose of the Act,

which is national in scope. As stated in section 101(b)(1) of the Act,

Congress intended to ``protect and enhance the quality of the Nation's

air resources so as to promote the public health and welfare and the

productive capacity of its population'' (emphasis added). It seems

clear that Congress intended for the CAA to be a ``general statute

applying to all persons to include Indians and their property

interests.'' Phillips Petroleum Co. v. United States E.P.A., 803 F.2d

545, 556 (10th Cir. 1986) (holding that the Safe Drinking Water Act

applied to Indian Tribes and lands by virtue of being a nationally

applicable statute; see generally id. at 553-58).

Section 301(a) of the Act delegates to EPA broad authority to issue

such regulations as are necessary to carry out the functions of the

Act. Further, several provisions of the Act call for Federal issuance

of a program where, for example, a State fails to adopt a program,

adopts an inadequate program or fails to adequately implement a

required program. E.g., sections 110(c) and 502 (d), (e), (i) of the

Act. It follows that Congress intended that EPA would similarly have

broad legal authority in instances when Tribes choose not to develop a

program, fail to adopt an adequate program or fail to adequately

implement an air program authorized under section 301(d). In addition,

section 301(d)(4) of the CAA empowers the Administrator to directly

administer CAA requirements so as to achieve the appropriate purpose,

where Tribal implementation of CAA requirements is inappropriate or

administratively infeasible. These provisions evince Congressional

intent to authorize EPA to directly implement CAA programs where Tribes

fail to submit approvable programs or lack authority to do so.

In fact, EPA is currently providing Federal support for CAA

protection within reservations. For example, EPA administers the permit

program governing review of proposed new and modified major stationary

sources of air pollution (``new source review'' or ``NSR'') on

Reservations and other areas in Indian country (hereafter ``Tribal

lands''). There are several reasons for this emphasis in the exercise

of EPA's authority.

Many Tribal lands have air quality that presently meets the

national ambient air quality standards (``NAAQS''), and the central

concern is to prevent the relatively clean air from significantly

deteriorating. Thus, EPA has ensured that major sources seeking to

locate on Tribal lands obtain the Prevention of Significant

Deterioration (``PSD'') permit required under the CAA's NSR program. In

broad overview, this program imposes limitations on the ambient air

quality impact of new or modified major stationary sources and requires

the application of best available control technology on such sources.

See section 165 of the Act. Similarly, in those circumstances where the

air quality on Tribal lands currently is worse than the NAAQS, EPA's

administration of the nonattainment NSR program prevents the air

quality from further deteriorating by ensuring that a proposed major

source implements the most stringent control technology (the ``lowest

achievable emission rate'' as defined in section 171(3)) and offsets

its emissions by obtaining emissions reductions from nearby sources.

Section 173 of the Act.

Owners and operators that construct air pollution sources on Tribal

lands without first obtaining the proper permit from EPA expose

themselves to Federal enforcement action and citizen suits. For

example, section 165 of the Act, 42 U.S.C. 7475, prohibits the

construction of a major emitting facility that does not have a PSD

permit. Section 173, 42 U.S.C. 7503, contains a similar requirement for

new and modified major stationary sources in nonattainment areas.

Sections 113 and 167, 42 U.S.C. 7413 & 7467, authorize EPA to take

enforcement action (including, in certain instances, criminal action)

against an owner or operator that is in violation of the requirement to

obtain a preconstruction permit that meets the requirements of the Act.

Furthermore, section 304 of the Act, 42 U.S.C. 7604, authorizes any

person to bring a ``citizen suit'' in U.S. district court against an

owner or operator who constructs any new or modified major stationary

source without a PSD permit or nonattainment NSR permit that meets the

Act's requirements.

EPA also currently provides technical and financial support to

Tribes that have initiated the process of developing Tribal air

programs. For example, some EPA Regional Offices are currently

providing such assistance to Tribes that have air quality that is worse

than the NAAQS. The objective is to assist the Tribes in developing a

strategy for controlling emissions from existing sources that will

bring the area back into attainment with the NAAQS. Because EPA has not

finalized today's rule authorizing Tribes to submit Federal CAA

programs to EPA for approval, some EPA Regions are now working with

Tribes to develop programs that will be promulgated and administered by

EPA until this rule is finalized and a Tribal program is

approved.10 Where air quality problems have already been

identified, it is EPA's policy to proceed expeditiously, in conjunction

with Tribes, to address such problems.

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\1\0Such an interim EPA-administered program would be displaced

upon EPA's approval of a Tribal program addressing the same CAA

requirements.

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In addition, as described in Part I.B, there are some programs that

are solely Federal programs (e.g. Phase I of the Acid Rain Program and

Title VI of the Act, which provides for the phase-out of certain

substances that deplete stratospheric ozone). Such programs apply to

sources located on Tribal lands in the same manner as sources on lands

subject to State jurisdiction.

EPA views these efforts as an important and substantial first step

in providing CAA protection of reservation air resources.

EPA also intends to develop an implementation strategy for

achieving Federal CAA protection of air resources within Indian

reservations. The strategy will be designed to prioritize EPA resources

in support of this rule. It is EPA's policy to assist Tribes in

developing comprehensive and effective air quality management programs

to insure that Tribal air quality management programs will be

implemented to the extent necessary on Indian reservations. EPA will do

this by, among other things, providing technical advice and assistance

to Indian Tribes on air quality issues. EPA intends to consult with

Tribes to identify their particular needs for air program development

assistance and to provide on-going assistance as necessary.

However, as it required many years to develop State and Federal

programs to cover lands subject to State jurisdiction, so it will

require time to develop Tribal and Federal programs to cover

reservations and other lands subject to Tribal jurisdiction. As a first

step in this process, EPA intends to draft a Plan for Reservation Air

Program Implementation that will provide a strategy for developing

reservation programs in accordance with this policy. The Plan will

identify priority needs and include a strategy to address them by

providing technical and grant assistance for the development of air

quality management programs. EPA will seek appropriate input from

Tribal governments in developing the Plan.

C. Objective of Tribal Primacy and Self-Determination

Ultimately, of course, EPA would prefer to work with Tribes to have

the Tribes develop and administer their own air quality management

programs under the CAA, just as EPA works with States. This is the

principal objective of the Federal financial assistance described in

Part IV below.

While some Tribes may entirely develop their own CAA programs,

other Tribes may consider forming Tribal consortia. Smaller Tribes in

particular may wish to form consortia or create inter-Tribal agencies

as ways to develop the necessary expertise to administer CAA programs

in a cost-effective way. One of the advantages of forming a consortium

of Tribes is that a Tribe may rely on the expertise and resources of

the consortium in demonstrating that the Tribe is reasonably expected

to be capable of carrying out the functions to be exercised, as

described below.

Today's action also does not require Tribes to develop CAA programs

wholly from scratch. For example, a Tribe may adopt or incorporate

standards from an adjacent or similarly situated State, with

appropriate revisions that would adapt the State standards to

reservation conditions and Tribal policies. The use of such adaptations

would enable Tribes to build on State experience and expertise, and

might represent quicker and less costly ways to establish Tribal

programs than developing Tribal programs independently. This technique

of utilizing small-scaled adaptations of State programs would allow

Tribes to build experience and expertise that could later be used to

revise existing programs, if appropriate.

Tribes could also choose to negotiate a cooperative agreement with

an adjoining State to jointly plan and administer CAA programs that are

appropriately tailored to individual reservation conditions and Tribal

policies. Such an agreement would be subject to the review and approval

of the Administrator or her delegatee, if it is to be made part of an

approvable Tribal air program under the CAA.

Aside from any formal arrangements between Tribes and States, EPA

notes that the objective of this rule, and EPA's responsibility in

overseeing the administration of the CAA, is to provide air quality

protection. Therefore, EPA encourages all affected sovereigns to work

cooperatively in informal capacities to protect the public health and

welfare from the serious health and welfare effects associated with air

pollution.

III. Tribal CAA Programs

The discussion which follows addresses streamlined procedures that

EPA is proposing to satisfy the eligibility requirements set out in

section 301(d)(2) of the Act. These are proposed requirements that

Tribes must meet in order to obtain approval to implement CAA programs.

The discussion also identifies those provisions of the Act for which

EPA is proposing to treat Indian Tribes in the same manner as States

and those provisions for which EPA believes such treatment is

infeasible or otherwise inappropriate.

One of EPA's central concerns is to encourage Tribes to develop and

administer Clean Air Act programs on Tribal lands in the same way that

States currently do on State lands. This concern is grounded in the

objective of Tribal self-government as enunciated in both the Federal

and the EPA Indian Policies. In order to facilitate this process, EPA

is proposing to eliminate duplicative review and unnecessary delay

during EPA's processing of Tribal program submittals. The eligibility

determination process proposed in today's action is consistent with an

EPA policy pronouncement that followed from EPA's review of the Tribal

programs it administers under other environmental statutes. Further,

EPA is proposing to accept ``reasonably severable'' Tribal air program

submittals that meet the applicable requirements of the CAA. This will

allow Tribes to identify and then immediately target their most

important air quality issues without the corresponding burden of

developing entire CAA programs. Further, it allows Tribes to develop

incremental expertise that will facilitate development and expansion of

further programs over time.

A. New Process for Determining Eligibility for CAA Programs

To be eligible to be treated in the same manner as a State for CAA

programs, including financial assistance, an applicant must meet the

definition of ``tribe'' in section 302(r) of the Act (i.e. it must be

Federally recognized) and must satisfy the three criteria set forth in

section 301(d)(2)(A)-(C) of the Act. These criteria are set out in

today's proposed rule and concern the Tribe's governing body, its

jurisdiction, and its capability to carry out the necessary functions

under the Act.

In general these same criteria are set forth under the Clean Water

Act and the Safe Drinking Water Act. EPA has previously issued

regulations implementing the criteria under those Acts. These

regulations have come to be known as the ``treatment as a state''

(``TAS'') process.11 Approval under this process was required

every time a Tribe sought to obtain an EPA grant or implement an EPA

program on its reservation.

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\1\1EPA recognizes that Tribes are sovereign nations with a

unique legal status and a relationship to the Federal government

that is significantly different from that of States. EPA believes

that Congress did not intend to alter this when it authorized

treatment of Tribes ``as States'' under the CAA. Rather, Congress

intends to ensure that, to the extent appropriate and feasible,

Tribes may assume a role in implementing the CAA on Tribal lands

that is comparable to the role States have in implementing the CAA

on State lands.

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Because the ``TAS'' process proved to be quite burdensome to

Tribes, EPA formed a working group to focus on ways of improving and

simplifying the process. After considering the workgroup's

recommendations, EPA announced a policy that is intended to streamline

and simplify the process. Memorandum from F. Henry Habicht, the Deputy

Administrator of EPA, to the Agency, dated November 10, 1992. EPA is

proposing to implement this new policy in this rulemaking, and is

calling the resulting new process the ``eligibility'' process. See also

56 FR 1380 (March 23, 1994) (proposing similar revision to Tribal

approval process in Clean Water Act and Safe Drinking Water Act

regulations).

Under the new eligibility process proposed in today's action, a

Tribe does not need to go through a separate eligibility review every

time it seeks approval for grant funding or to implement a specific

program. Instead, a Tribe's eligibility may be determined at the same

time that it seeks approval for a particular program. By making the

eligibility determination a part of the program approval process, much

of the delay and duplication inherent in the old sequential TAS process

should be reduced, if not eliminated. In addition, EPA is proposing to

simplify some of the demonstrations of eligibility that will be

required under the Clean Air Act, as discussed below. Finally, after

promulgation of this rule, EPA intends to facilitate development of

Tribal applications by providing Tribes with a narrative checklist of

the eligibility requirements described below.

1. Federally Recognized Tribe

A Tribe is defined in section 302(r) of the Act as follows:

[A]ny Indian tribe, band, nation, or other organized group or

community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indians.

The requirement of Federal recognition is common to all statutes

authorizing EPA to treat Tribes in a manner similar to that in which it

treats States. Any Tribe that has been approved for ``TAS'' under any

of the existing Water Act regulations or any other EPA program is

Federally recognized. Moreover, once a Tribe has been found to be

Federally recognized in the course of approval under any EPA-

administered statute, or any provision of the CAA, it need only so

state in the future. To facilitate review of Tribal applications, EPA

therefore requests that Tribal applications inform EPA whether the

Tribe has been approved for ``TAS'' under the old process or deemed

eligible to receive funding or authorization for any EPA-administered

environmental program under the revised process governing treatment of

Tribes in the same manner as States.

Any other Tribe need only state that it appears on the list of

Federally recognized Tribes that the Secretary of the Interior

periodically publishes in the Federal Register. See 58 FR 54364 (Oct.

21, 1993). If the Tribe notifies EPA that it has been recognized but is

not included on this list because the list has not been updated, EPA

will verify the fact of recognition with the Department of the Interior

(``DOI'').

2. Substantial Governmental Duties and Powers

A Tribe also must show that it ``has a governing body carrying out

substantial governmental duties and powers.'' This requirement is also

found in the Federal Water Pollution Control Act (``Clean Water Act'')

and the Public Health Service Act (``Safe Drinking Water Act''). See 33

U.S.C. 1377(e) & 42 U.S.C. section 300j-11(b). Accordingly, as

discussed above, a Tribe that has had a submittal approved by EPA under

either of these provisions has already established that it meets the

governmental requirement and need not make this showing again.

Similarly, a Tribe that has made this showing in the course of

obtaining approval for a Clean Air Act program need not do so again. In

either case, a Tribe may simply state that it has already been

approved.

A Tribe that has not yet made its initial showing of ``substantial

governmental duties and powers'' can do so by demonstrating that it has

a governing body that is presently carrying out substantial

governmental functions. A Tribe will be able to make the required

demonstration if it is currently performing governmental functions to

promote the public health, safety, and welfare of its population within

a defined area. Many Indian Tribal governments perform these functions.

Examples of such functions include, but are not limited to, levying

taxes, acquiring land by exercising the power of eminent domain, and

police power. Such examples should be included in a narrative statement

supporting the certification, which describes: (1) The form of the

Tribal government, (2) the types of essential governmental functions

currently performed, such as those listed above; and (3) the legal

authorities for performing these functions (e.g. Tribal constitutions

or codes). It should be relatively easy for Tribes to meet this

requirement without submitting copies of specific documents unless

requested to do so by EPA.

3. Jurisdiction Requirement

As discussed in section II.A above, EPA is proposing to interpret

the CAA as granting or delegating certain Federal authority to approved

Tribes over all air resources within the exterior boundaries of their

reservations. Generally, therefore, the significant issue that remains

in determining the extent of Tribal jurisdiction is the precise

boundary of the reservation in question. Accordingly, a Tribal

jurisdictional showing must identify, with clarity and precision, the

exterior boundaries of the reservation. Consistent with the simplified

review process, EPA is not proposing to specify particular supporting

materials that the Tribe must provide. However, a Tribal submission

will need to contain information adequate to demonstrate to EPA the

location and limits of the reservation, which will usually include a

map and a legal description of the area. EPA will determine the meaning

of the term ``reservation'' as indicated previously.

Note that there may be less frequent instances when more complex

legal and factual demonstrations must be made to establish

jurisdiction. As indicated above, section 301(d)(2)(B) of the Act

addresses jurisdiction over ``air resources within the exterior

boundaries of the reservation or other areas within the tribe's

jurisdiction'' (emphasis added). While EPA is proposing to construe the

Act as delegating to Tribes authority over all air resources within the

exterior boundaries of their reservations, the Agency will require a

Tribe to demonstrate its inherent authority over any areas outside of

the exterior boundaries of the reservation before EPA will approve a

Tribal program covering such areas. Where a Tribe seeks to develop and

administer an air program on off-reservation lands, the Tribal

submittal must be accompanied by appropriate legal and factual

information which supports its inherent authority to regulate emission

sources located on such lands.

Under the TAS process which EPA has implemented in the past, EPA

would not determine that a Tribe had the requisite jurisdiction without

first notifying appropriate ``governmental entities,'' such as States,

other Tribes and Federal land management agencies, of the Tribe's

jurisdictional assertions. Those entities were then given an

opportunity to comment on the Tribe's jurisdictional statement, and

whenever a comment raised a ``competing or conflicting claim,'' EPA

could not approve the Tribal application without first consulting with

DOI. Consistent with the revised eligibility policy, EPA is proposing

to implement a more streamlined approach under the CAA.

The first time a Tribe submits an application to EPA under the CAA,

EPA will, upon receipt of the application, notify all appropriate

``governmental entities''\12\ regarding the Tribe's assertion of

jurisdiction. The precise content of EPA's notification of other

governmental entities will depend on the geographic extent of the

Tribe's jurisdictional assertion. Specifically, if a Tribe seeks only

to implement a CAA program within the exterior boundaries of its

reservation, EPA's notification of other governments will only specify

the geographic boundaries of the reservation, as set forth in the

Tribe's application. However, where a Tribe seeks to administer a CAA

program on lands outside the exterior boundaries of a reservation, EPA

will notify the appropriate governmental entities of the substance of

and bases for the Tribe's assertion of inherent jurisdiction with

respect to such off-reservation lands.

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\12\For purposes of the CAA rule, EPA is proposing to adopt the

same definition of ``governmental entities'' as the Agency did in

its December 1991 Water Quality Standards regulation. See 56 FR

64876 at 64884 (Dec. 12, 1991).

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The appropriate governmental entities will have fifteen days

following their receipt of EPA's notification to provide formal

comments to EPA regarding any dispute they might have with the Tribe

concerning the boundary of the reservation. Where a Tribe has asserted

jurisdiction over off-reservation lands, and has included a more

detailed jurisdictional statement in its application, appropriate

governmental entities may request a one-time fifteen day extension to

the general fifteen day comment period. In all cases, comments from

appropriate governmental entities must be offered in a timely manner,

and must be limited to the Tribe's jurisdictional assertion. Where no

timely comments are presented, EPA will conclude that there is no

objection to the Tribal applicant's identified reservation boundaries

(or, if relevant, its assertion of jurisdiction outside the

reservation). Further, to raise a competing or conflicting claim, a

commenter must clearly explain the substance, basis, and extent of its

objections. Finally, where EPA receives timely notification of a

dispute, it may obtain such additional information and documentation as

it believes appropriate and may, at its option, consult with DOI.

Where EPA identifies a dispute and cannot confidently resolve it

promptly, it will retain the option of limiting approval of a Tribal

program to those areas that a Tribe has clearly shown are part of the

reservation (or are otherwise within the Tribe's jurisdiction). This

will allow EPA to approve the portion of a Tribal application that

covers all undisputed areas, while withholding action on the portion of

the application that addresses areas where a jurisdictional issue has

not been satisfactorily resolved. However, this approach will be

subject to any applicable statutory restrictions. See, e.g., section

110(k) of the Act (calls upon EPA to complete action on a SIP submittal

within certain specified timeframes).

Once EPA has made a determination under the CAA or other EPA-

administered environmental programs concerning the boundaries of a

reservation, it will rely on that determination in evaluating all

future applications from that Tribe under the CAA unless the

application presents different legal issues. For example, once the

Agency has arrived at a position concerning a reservation boundary

dispute, it will not alter that position in the absence of significant

new factual or legal information. Thus, as with the recognition and

governmental requirements, there will generally be no need to provide

EPA with additional demonstrations of jurisdiction, unless the Tribe is

making a more expansive jurisdictional assertion in a subsequent

submittal.

EPA believes that this new process for resolving questions of

jurisdiction constitutes a significant improvement over the old TAS

jurisdiction process. It will provide States with an opportunity to

notify EPA of boundary disputes and enable EPA to obtain relevant

information as needed while minimizing delays in the process and

focusing its inquiry on what is likely to be the principal relevant

issue, namely, the geographic boundaries of the reservation.

4. Capability Requirement

Section 301(d)(2)(C) of the CAA provides that in determining Tribal

eligibility the Administrator also must determine that the Tribe ``is

reasonably expected to be capable * * * of carrying out the functions

to be exercised in a manner consistent with the terms and purposes of

[the CAA] and all applicable regulations.'' A program-by-program

inquiry into the question of capability is necessary since a Tribe may

have capability to carry out certain activities but not others.

Therefore, EPA may request that to establish capability a Tribe submit

a narrative statement or other documents showing it is capable of

administering the program for which it is seeking approval. The

specific capabilities which must be described are set forth in today's

proposed rule.

In evaluating a Tribe's demonstration of capability, EPA may

consider the following factors:

(1) The Tribe's previous management experience;

(2) Existing environmental or public health programs administered

by the Tribe;

(3) The mechanism(s) in place for carrying out the executive,

legislative, and judicial functions of the Tribal government;

(4) The relationship between regulated entities and the

administrative agency of the Tribal government that will be the

regulator; and

(5) The technical and administrative capabilities of the staff to

administer and manage the program.

EPA recognizes that certain Tribes may not have substantial

experience administering environmental programs. A lack of experience

will not preclude a Tribe from demonstrating the required capability.

Otherwise Tribes would be placed in the dilemma of being denied the

opportunity to develop the requisite capability because they lack such

capability. For this reason, today's proposed rule requires Tribes

either to show that they have the necessary management and technical

skills or to submit a plan detailing steps for acquiring those skills.

However, this flexibility does not change the requirement that to

obtain approval for a particular program under the CAA the Tribe must

submit a fully effective program that meets all the applicable

statutory and regulatory requirements associated with the program in

question. Because a Tribe may not want to go through the expense of

developing such a program without first being assured of meeting the

eligibility requirements, today's proposed rule provide that a Tribe

may, at its option, ask for a preliminary finding on any or all of

these requirements.

EPA's evaluation of capability will also consider the relationship

between the existing or proposed Tribal agency that will implement the

program in question and any potential regulated Tribal entities. It is

not uncommon for a Tribe to be both the regulator and regulated entity,

and such a situation could result in a conflict of interest since the

Tribe would then be regulating itself. Independence of the regulator

and regulated entity best assures effective and fair administration of

a program.

A Tribe will generally not be required to divest itself of

ownership of any regulated entities to address this problem. Instead,

for example, the Tribe could create an independent organization to

regulate Tribal entities subject to CAA regulatory requirements.13

Similar arrangements could be established using existing Tribal

organizations.

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\1\3While States also are both the regulator and regulated

entity, state government organization is typically one in which the

State agency operating the regulated entity is not the same State

agency that has primary regulatory authority. Thus, this separation

of functions helps avoid potential conflicts of interest.

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This discussion is intended to alert Tribes at an early date about

a potential bar to regulatory program assumption that must be resolved.

For example, section 110 of the CAA sets out some of the basic

requirements that SIPs must meet to assure attainment and maintenance

of the NAAQS. Section 110(a)(2)(E)(ii) of the Act directs that SIPs

must provide requirements that the State comply with the requirements

applicable to State boards under section 128. Section 128, in turn,

provides that each SIP shall contain requirements that:

(1) Any board or body which approves permits or enforcement

orders under [the CAA] shall have at least a majority of members who

represent the public interest and do not derive any significant

portion of their income from persons subject to permits or

enforcement orders under [the CAA], and

(2) Any potential conflicts of interest by members of such board

or body or the head of an executive agency with similar powers be

adequately disclosed.

EPA does not intend to limit Tribal flexibility in creating

structures which will ensure adequate separation of the regulator and

regulated entity. Instead, EPA will evaluate whether the Tribal

submittal will ensure adequate separation of the regulator and

regulated entity on a case-by-case basis in the context of the

statutory and regulatory requirements applicable to the CAA program for

which a Tribe is seeking approval.

5. Tribal consortia

Each member of a Tribal consortium must meet the eligibility

qualifications described above. However, members of a consortium may

rely on the expertise and resources of the consortium in demonstrating

that the Tribe meets the capability requirement described above.

For example, some members of a consortium may have more technical

expertise and environmental management experience than other members. A

Tribe with less resources and expertise may rely on the combined

resources of the consortium in demonstrating that the Tribe is

``reasonably expected'' to be capable of carrying out the functions to

be exercised. However, a Tribe relying on a consortium in this manner

must provide reasonable assurances that the Tribe has responsibility

for carrying out necessary functions in the event the consortium fails

to.

B. Provisions for Which Tribal Implementation is Appropriate

1. Tribal Implementation is Generally Appropriate

Part III.A discussed the eligibility requirements that a Tribe must

meet in order to be treated as a State under the Clean Air Act. There

is a separate question of whether it is appropriate to treat eligible

Tribes in the same manner as States for all provisions under the Act,

or whether only certain provisions lend themselves to such an approach.

The Act provides that the Administrator shall promulgate regulations:

specifying those provisions of [the CAA] for which it is appropriate

to treat Indian tribes as States.

Section 301(d)(2). The Act further provides,

[i]n any case in which the Administrator determines that the

treatment of Indian tribes as identical to States is inappropriate

or administratively infeasible, the Administrator may provide, by

regulation, other means by which the Administrator will directly

administer such provisions so as to achieve the appropriate purpose.

Section 301(d)(4). Thus, read together, the Act delegates to the

Administrator broad discretion in determining those provisions of the

Clean Air Act for which Tribes should be treated in the same manner as

States and those provisions for which such treatment would be

inappropriate or infeasible.

It is EPA's basic position, proposed here, that treatment of Tribes

in the same manner as States is appropriate for all programs under the

Act with the exception of only a few provisions (those for which EPA

has determined that it is infeasible or otherwise inappropriate to

treat States and Tribes in the same manner). EPA proposes to be

inclusive in identifying the provisions of the Act for which it is

appropriate to treat Tribes in the same manner as States so as to

maximize the opportunities for Tribal participation in CAA programs.

In light of this basic approach, today's proposed rule provides

that Tribes will generally be treated in the same manner as States for

all the provisions of the Clean Air Act, and specifies the limited

exceptions to this approach. EPA is proposing to treat Tribes in the

same manner as States for all of the remaining provisions of the

statute not identified as exceptions in the discussion below. Today's

action also addresses alternative means to achieve the intended purpose

of the Act, where EPA believes such provisions are necessary in light

of a proposed exception. Section 301(d)(4).

A common concern raised by both Tribes and States during the

development of this proposed rule was the potential for sources located

on State or Tribal lands to adversely impact air quality on downwind

State or Tribal lands. EPA is proposing in this rule that the CAA

protections against interstate pollutant transport apply with equal

force to States and Tribes.

Thus, for example, EPA is proposing that the prohibitions and

authority contained in sections 110(a)(2)(D) and 126 of the CAA apply

to Tribes in the same manner as States. Section 110(a)(2)(D), among

other things, requires States to include provisions in their SIPs that

prohibit emissions activity within the State from significantly

contributing to nonattainment, interfering with maintenance of the

NAAQS, or interfering with measures under the PSD or visibility

protection programs in another State. Section 126 authorizes any State

to petition EPA to enforce these prohibitions against a State

containing an allegedly offending source or group of sources.

2. Exceptions to Tribal Implementation

EPA notes at the outset that recurring provisions for which EPA is

proposing not to treat Tribes in the same manner as States involve

certain Clean Air Act submittal deadlines. The Act contains many

deadlines that mandate the submittal of a State plan, program or other

requirement by certain dates. However, Tribes are not similarly

compelled to develop and seek approval of air programs. Section

301(d)(2) provides for EPA to promulgate regulations specifying ``those

provisions of this [Act] for which it is appropriate to treat Indian

tribes as States'' but does not require Indian Tribes to develop CAA

programs.

Further, the State program submittal deadlines in the statute are

based upon a relatively long history of Clean Air Act planning and

implementation by States.14 States have assumed an active role in

Clean Air Act implementation since the 1970 Amendments to the Act. By

comparison, in substantial part, Tribal authority for Clean Air Act

programs was expressly addressed in the Act for the first time in the

1990 Amendments. Tribes, therefore, are at best in the early stages of

developing air program expertise and planning efforts. Accordingly, EPA

believes it would be both infeasible and inappropriate to subject

Tribes to the State program submittal and related deadlines in the

statute as explained in more detail below.

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\1\4Note also that many of the submittal deadlines run from the

enactment of the 1990 Amendments to the Clean Air Act on November

15, 1990. Therefore, Tribes submitting programs in response to the

final rule authorizing the treatment of Tribes as States for those

provisions would already be substantially behind in meeting the

deadlines.

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A related set of provisions are the sanctions and other Federal

oversight mechanisms in the Act which are triggered when States fail to

meet the air program submittal deadlines called for in the Act or when

EPA disapproves a program submittal. In several instances, the Act

mandates the imposition of sanctions, such as Federal transportation

funding restrictions and two-to-one new source review offsets, by a

specific deadline if a State fails to timely submit a required program

or submits a program that is not fully approvable. E.g., CAA sections

179 and 502(d)(2)(B). Similarly, the Act often imposes specific

deadlines upon EPA for issuing a Federal program within a certain

period after a State fails to submit a program or after EPA disapproves

an inadequate State program. E.g., CAA sections 110(c)(1) and

502(d)(3). For the reasons stated above, EPA is proposing not to treat

Tribes in the same manner as States for certain provisions contained in

these sections.

However, EPA is proposing to treat Tribes in the same manner as

States for those provisions that mandate the imposition of Federal

sanctions for failure to adequately implement or enforce an approved

Clean Air Act program. E.g., CAA sections 179(a)(4) and 502(i)(2). This

includes EPA's authority to withhold all or part of air pollution

control grants awarded under section 105. EPA is proposing to treat

Tribes in the same fashion as States for the purposes of mandatory

sanctions for nonimplementation of an approved Tribal program because

once a Tribe has sufficient legal authority and capability to have a

program approved, it should be treated as a similarly situated State.

Thus, EPA expects a Tribe to follow through on its implementation of an

approved program in the same manner as a State. This will provide an

incentive for Tribes to maintain the primary role in implementing a

previously approved air program and to administer effective programs.

In addition, EPA will also treat Tribes in the same fashion as States

with respect to EPA's discretionary authority to impose sanctions.

E.g., sections 110(m), 502(d)(2), and 502(i)(1).

The approach EPA is proposing today regarding Clean Air Act

deadlines and Federal sanctions is consistent with the approach

outlined under Parts II.B. and II.C. of this notice. EPA's principal

goal is to have Tribes develop and administer their own CAA programs.

As indicated, EPA intends to issue guidance subsequent to this rule

that sets out in some detail the Federal efforts and timetables for

providing broader air quality protection for reservation air resources

in those instances when Tribes choose not to develop their own

programs. EPA intends to provide direct Federal Clean Air Act

protection on reservations if, after some reasonable time, its efforts

to assist Tribes in developing Tribal programs under the Act do not in

fact lead to Tribal program adoption and approval.

a. National Ambient Air Quality Standards applicable implementation

plan submittal deadlines and related sanctions. Consistent with the

general discussion above, EPA is not proposing to treat Tribes in the

same manner as States for the general implementation plan submittal

deadlines specified in section 110(a)(1) of the Act. Further, Tribes

will not be subject to the plan submittal deadlines for nonattainment

areas set out in sections 172(a)(2), 182, 187, 189, and 191. EPA also

is not proposing to treat Tribes in the same manner as States for the

deadlines set out in section 124, associated with the review and

revision of implementation plans related to major fuel burning sources.

However, EPA is proposing to treat Tribes in the same manner as

States with respect to the statutory requirements that will apply in

evaluating a Tribal program once a Tribe has decided to make a

submittal. Further, as indicated previously, EPA intends to issue

guidance specifying timeframes by which it will provide Federal

protection for Tribes that have air quality worse than the NAAQS but

are unable to develop their own CAA programs. The timing of Federal

protection will be informed by the applicable Clean Air Act NAAQS

attainment deadlines.

Also consistent with the general discussion above, EPA is not

proposing to treat Tribes in the same manner as States for the

imposition of certain mandatory sanctions by EPA under section 179

because a Tribe has failed to submit a Tribal Implementation Plan (TIP)

or other requirement, has made an incomplete submittal, or has made a

submittal that is in part or in whole not approvable. See CAA section

179(a)(1)-(3); see also discussion under Part III.C.1. of this

preamble, concerning EPA's ``modular'' approach to Tribal Air Programs

(TAPs). However, EPA is proposing to treat Tribes in the same manner as

States for those provisions of section 179 mandating the imposition of

sanctions when EPA determines that a requirement of an approved plan is

not being implemented. See CAA section 179(a)(4). In addition, EPA is

proposing to treat Tribes in the same manner as States with respect to

EPA's discretionary authority to impose sanctions. See CAA section

110(m).

EPA is not proposing to treat Tribes in the same manner as States

for the provisions of section 110(c)(1) that direct EPA to issue a

Federal Implementation Plan (FIP) within two years after EPA finds that

a State has failed to submit a required plan or has submitted an

incomplete plan or within two years after EPA has disapproved a plan in

whole or in part. This exception would apply only for that provision of

section 110(c)(1) that sets a specified date by which EPA must issue a

FIP. Treating Tribes in a similar manner as States under that provision

would be inappropriate since Tribes are not in the first instance, like

States, required to make submittals by a date certain, and in light of

the very recent initiation of Tribal air quality planning efforts. EPA

is proposing to treat Tribes in the same manner as States for all other

provisions of section 110(c)(1). Thus, EPA would continue to be subject

to the basic requirement to issue a FIP for affected areas within some

reasonable time. EPA would give substantial weight to Tribal air

quality needs in determining what is reasonable in particular

instances. Further, as discussed in Part II.B., EPA intends to spell

out in subsequent guidance the specific programs that EPA will

implement to provide CAA protection within reservations and on other

lands subject to Tribal jurisdiction.

However, EPA is proposing to treat Tribes in the same manner as it

treats States for the State Implementation Plan/Tribal Implementation

Plan (SIP/TIP) call provisions under sections 110 (a)(2)(H)(ii) and

(k)(5) of the Act. These provisions authorize EPA to require a State to

revise a plan that is inadequate to assure attainment and maintenance

of the relevant NAAQS or is otherwise inadequate to ensure compliance

with applicable Clean Air Act requirements. Thus, once a Tribal

Implementation Plan has been approved in whole or in part as meeting an

applicable CAA requirement, Tribes will be similarly subject to these

SIP/TIP call provisions.

b. Visibility implementation plan submittal deadlines. EPA is not

proposing to treat Tribes in the same manner as States for the

provisions of section 169A or implementing regulations requiring the

submittal of visibility implementation plans by specific deadlines.

Under today's proposal, Tribes would be treated in the same manner as

States for all other purposes under section 169A and its implementing

regulations.

c. Interstate air pollution and visibility transport. Commission

plan submittal deadlines. EPA is not proposing to treat Tribes in the

same manner as States for those interstate commission CAA provisions

requiring the submittal of an applicable implementation plan by a

specific date. See CAA sections 169B(e)(2), 184 (b)(1) & (c)(5).

However, EPA is proposing to treat Tribes in the same manner as States

for all other interstate commission-related provisions under sections

169B, 176A and 184 of the CAA.

Therefore, for example, Tribes meeting eligibility requirements for

these provisions of the CAA would be treated in the same manner as

States in identifying what areas should be included in ``interstate''

air pollution and visibility transport regions and in establishing

commission membership. For eligible Tribes participating as members of

such Commissions, the Administrator would establish those submittal

deadlines that are determined to be practicable or, as with other non-

participating Tribes in an affected transport region, provide for

Federal implementation of necessary measures.

d. Criminal enforcement. In general, EPA is proposing that the

enforcement provisions of sections 113 and 114 of the Act apply to

Tribes in the same way that they apply to States. This would include

the ability of a Tribe to establish its own administrative enforcement

program, so that the Tribe could enforce administrative as well as

civil penalties. In both cases, EPA would have the authority to take

necessary enforcement action if the Tribe did not take such action or

did not enforce adequately (e.g. did not impose a sufficient penalty);

however, it would be most prudent for Tribes to attempt enforcement in

the first instance. It should also be noted that EPA has a general

policy of consulting with Tribal leaders and managers prior to taking

an enforcement action against Tribal owned or managed facilities.

November 8, 1984 ``EPA Indian Policy Implementation Guidance'' at p. 6.

Section 113(c) of the CAA provides for the imposition of criminal

penalties. However, in certain circumstances Indian Tribes have limited

criminal enforcement authority. Federal law prohibits Indian Tribes

from holding criminal trials of or imposing criminal penalties on non-

Indians, in the absence of a treaty or other agreement to the contrary.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In addition,

the Federal Indian Civil Rights Act prohibits any Indian Tribe from

imposing for conviction of any one offense any criminal fine greater

than $500. 25 U.S.C. section 1302(7). To provide for the possible

imposition of criminal penalties with respect to facilities located on

Tribal lands, each Tribe seeking approval of a CAA program that

requires such authority must enter into a formal Memorandum of

Agreement with EPA, through which it would agree to provide for the

timely and appropriate referral of criminal enforcement matters to the

EPA Regional Administrator.

e. Title V operating permit program submittal deadlines,

implementation deadlines and other requirements. For the reasons stated

in the introduction to this section of the preamble, EPA is not

proposing to treat Tribes in the same manner as States for the

operating permit program submittal deadline set out in section

502(d)(1). Similarly, EPA is not proposing to treat Tribes in the same

manner as States under the provisions of section 502(d)(2)(B) that

mandate the imposition of sanctions under section 179 when a State

fails to timely submit a required permit program or EPA disapproves a

permit program. EPA also is not proposing to treat Tribes as States for

the provisions of section 502(d)(3) that direct EPA to promulgate and

administer a Federal permit program if, within two years after the

required submittal date, EPA has not approved a State permit program.

Similar to the companion provision in Title I described above (i.e.,

section 110(c)(1)), EPA is proposing to exclude only those limited

provisions of section 502(d)(3) that direct EPA action by a date

certain (EPA would continue to be subject to the basic requirement to

implement a Federal permit program within a reasonable period; EPA

would give substantial weight to Tribal air quality needs in

determining what is reasonable in particular instances). These

provisions are inappropriate because Tribes are not in the first

instance directed by the statute to submit their own programs and in

light of the fact that the Tribal CAA program development efforts are

at a very preliminary stage.

However, Tribes will be subject to the sanctions provisions of

section 502(i) (1)-(4) in the same manner as States. Section 502(i)

provides for the discretionary and mandatory imposition of section 179

sanctions when EPA determines that a permitting authority is not

adequately administering and enforcing an operating permit program, or

a portion thereof. Thus, once a Tribe submits an operating permit

program and EPA approves that program, Tribes will be subject to the

sanction provisions of section 502(i)(1)-(4) in the same way that

States are. In addition, Tribes will be treated in the same manner as

States with respect to EPA's discretionary authority to impose

sanctions under section 502(d)(2)(A).

EPA is also not proposing to treat Tribes in the same manner as

States for the interim approval provisions in section 502(g) of the

Act. Those provisions authorize EPA to temporarily grant approval to a

program that in substantial part meets the requirements of the Act, but

that is not fully approvable. An interim approval under these

provisions expires on a date established by EPA but not later than two

years after the approval. Section 502(g) provides that the Title V

sanctions provisions and obligations of the Administrator to promulgate

a Federal operating permit program are suspended during this interim

period.

The interim approval provisions allow EPA to grant States

submitting a substantially satisfactory permit program up to two

additional years to submit a fully approvable program without risk of

sanctions and Federal implementation. These provisions are an adjunct

of the statutory deadline requiring the submittal of State Title V

operating permit programs by November 15, 1993. If States were not in

the first instance required to submit operating permit programs by that

date certain, the relief of additional time to submit an approvable

program without the risk of Federal penalties would be unnecessary. As

stated previously, EPA is not proposing to treat Tribes in the same

manner as States for Title V program submittal deadlines. Accordingly,

EPA is also not proposing to treat Tribes in the same manner as States

for this related interim approval authority.

Consistent with the general modular approach proposed with respect

to Tribal programs (discussed below), EPA intends to allow Tribes some

additional flexibility in implementing Title V programs. For example,

EPA may allow Tribes to extend the period for permitting affected Title

V sources over as long as five years from program approval.

Accordingly, EPA is not proposing to treat Tribes in the same manner as

States for those provisions of section 503(c) of the Act that direct

permitting authorities to establish a phased schedule for acting on

permit applications submitted within the first full year after the

effective date of a permit program (or a partial or interim program).

Section 503(c) provides that the phased schedule shall assure that at

least one-third of such permit applications will be acted on by the

permitting authority over a period of not to exceed three years after

the effective date. EPA is not proposing to subject Tribes to these

provisions. While it is possible that EPA may require some Tribes to

permit affected sources within three years, EPA nevertheless wants to

retain the discretion to allow Tribes up to five years to permit

affected Title V sources after the date of program approval.

Further discussion of Title V requirements is set out below under

the portion of this notice titled ``Revisions to CAA Implementing

Regulations.''

f. Small business assistance program submittal deadline and

compliance advisory panel requirement. EPA is not proposing to treat

Tribes in the same manner as States for the provisions of section

507(a) specifying a deadline for the submittal of plans for

establishing a small business stationary source technical and

environmental compliance assistance program. EPA also is not proposing

to treat Tribes in the same manner as States under section 507(e) which

directs States to establish a Compliance Advisory Panel. Both of these

provisions are inconsistent with section 301(d), which authorizes but

does not require Tribes to develop and submit Clean Air Act programs to

EPA for approval. However, if a Tribe elects to establish a Compliance

Advisory Panel under section 507(e), the membership specified in

section 507(e)(2) shall be selected by the Tribal leader, legislative

bodies and Tribal agencies that correspond with those identified for

States.

Generally, the preceding discussion identifies those provisions of

the CAA for which EPA is not proposing to treat Tribes in the same

manner as States. EPA is proposing that Tribes be treated in the same

manner as States for all other provisions of the statute.

3. Stringency of Tribal Regulations

Under the Clean Air Act, States generally retain legal authority to

impose requirements that are more stringent that Federal standards.

Section 116 of the Act, 42 U.S.C. 7416, expressly reserves States'

authority to impose air pollution control requirements that are more

stringent than those specified under the Act. This State discretion is

retained except where the Act explicitly preempts or precludes the

establishment of stricter State standards.

In certain instances under the Act uniformity is necessary to avoid

an undue burden on the interstate sale of goods. In such instances,

Congress has expressly prevented States from imposing stricter State

standards and, therefore, the Federal requirements under the Act

represent both the nationwide floor and ceiling. For example, section

209 of the Act, 42 U.S.C. section 7543, limits States' authority to

adopt and enforce emission standards for new motor vehicles.

EPA is proposing to treat Tribes in the same manner as States for

the purposes of both section 116 of the Act and for all of the CAA

preemption provisions, including provisions such as section 177 that

authorize exclusions from preemption provisions. This will clarify

EPA's position that Tribes like States generally have authority to

exceed minimum Federal requirements. It will also clarify the fact that

Tribes, like States, are preempted from imposing stricter standards

where Congress has so specified. This will advance the overarching

purpose of the preemption provisions to avoid undue barriers on the

trade of goods in commerce.

4. Provisions for Which no Separate Tribal Program Required.

Under some provisions of the CAA, Tribes would have a specific role

by virtue of having met the minimum eligibility requirements discussed

in Part III.A, irrespective of whether a specific program is approved.

For example, under section 107(d)(3), the Administrator would

notify an eligible Tribe of information indicating that an area within

the Tribe's jurisdiction should be redesignated, and the Tribe would

have an opportunity to provide input on that redesignation in the same

fashion as a State. Under section 107(d)(3) a Tribe could also submit a

revised designation of any area within its jurisdiction on its own

motion. Similarly, under section 112(r)(7)(B)(iii), risk management

plans would be submitted to Tribal Emergency Response Commissions.

Under sections 169B, 176A and 184 Tribes meeting eligibility

requirements for such provisions shall be treated in the same manner as

States in identifying what areas should be included in interstate air

pollution and visibility transport regions and in establishing

commission membership.15

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\1\5EPA always retains any general discretionary authority to

make Federal Indian Reservations part of a transport Region and to

include representatives of Indian Tribes as interstate transport

Commission members.

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Also, treating Tribes in the same manner as States for purposes of

section 505(a)(2) would require permitting authorities under Title V to

notify an eligible Tribe that is contiguous to a State in which an

emission originates and whose air quality may be affected by that

emission, or that is within 50 miles of the emission source, of any

Title V permit applications that are forwarded to EPA.16

Permitting authorities would also be required to provide such Tribes an

opportunity to submit written recommendations and to notify such Tribes

in writing of any recommendations not accepted and the reasons why. See

40 CFR 70.8(b)(2). Thus, special procedural provisions would apply to

Tribes treated in the same manner as States for the purpose of Title V

notification. This Title V notification and permitting authority

obligation to explain any recommendations not accepted would apply

regardless of whether an eligible Tribe has an approved Title V

program.

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\1\6The geographic scope of Tribal lands for Title V

notification purposes would include any lands over which an eligible

Tribe has been determined to have jurisdiction, including any off-

reservation lands.

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As elaborated below, EPA expects that most recognized Tribes will

be able to readily meet the eligibility requirements for such

provisions as Title V permit application notification. To promote

intergovernmental coordination, EPA encourages States and local

governments to take steps now to provide Title V notification to

Tribes, instead of waiting for a formal eligibility determination by

EPA. EPA also encourages Tribes to exercise the notification rights

that extend to any citizen under the Title V program in the interim

period preceding a Tribal eligibility determination, if necessary to

ensure notification. The regulations implementing the Title V operating

permit program generally require that permitting authorities must

provide adequate procedures for public notice including offering an

opportunity for public comment and a hearing on the draft permit. See

40 CFR 70.7(h). These procedures include providing notice of draft

permit proceedings to persons on a mailing list developed by the

permitting authority, including those who request in writing to be on

the list. See 40 CFR 70.7(h)(1). Thus, a Tribe not determined eligible

to be treated in the same manner as a State for notification could

nevertheless ensure that it receives notification of draft permits by

submitting a written request for such notification to appropriate

permitting authorities.

EPA intends to revise existing CAA regulations to reflect this

Tribal authority as part of its on-going regulatory development

efforts. EPA also requests public comment identifying any other

provisions of the CAA which similarly do not require a Tribal program

submittal in order for a Tribe to have a role in CAA implementation.

In all instances, including those provisions of the Act for which

no separate Tribal program submittal is required, it is a statutory

requirement that a Tribe meet the section 301(d)(2) eligibility

requirements, discussed in Part III.A above, before it may be treated

in the same manner as a State. However, as a practical matter, this

should not be burdensome. Often the provisions not requiring

accompanying program submittals are intended to promote

intergovernmental coordination and involve receipt or transmittal of

information or active participation on a multigovernmental entity.

Therefore, a minimal demonstration would be necessary to establish

Tribal capability to carry out these functions consistent with the

terms and purposes of statutory and regulatory requirements. Further,

under today's proposed streamlined procedures for determining

eligibility, EPA has generally simplified the demonstration that must

be made for eligibility approval. Taken together with the minimum

capability needed to carry out these particular requirements, most

Federally recognized Tribes are expected to be able to readily

demonstrate eligibility to be treated in the same manner as States for

CAA provisions not requiring a program submittal.

C. Procedures for Review of Tribal Air Programs

In general, Tribes will be required to comply with the same

statutory and regulatory requirements as States for the CAA programs

that are submitted to EPA for approval. The main difference is that

section 301(d) does not require Tribes to develop CAA programs. Thus, a

Tribe may decide to implement only those programs, or even portions of

programs, that are most relevant to the air quality situation on its

reservation or other lands subject to its jurisdiction. This ``modular

approach'' to Tribal CAA program development is discussed further in

Part III.C.1 below.

In addition, section 301(d)(3) of the Act provides that:

[t]he Administrator may promulgate regulations which establish

the elements of tribal implementation plans and procedures for

approval of tribal implementation plans and portions thereof.

Section 301(d)(4) provides that:

[i]n any case in which the Administrator determines that the

treatment of Indian tribes as identical to States is inappropriate

or administratively infeasible, the Administrator may provide, by

regulation, other means by which the Administrator will directly

administer such provisions so as to achieve the appropriate purpose.

Further, as discussed previously, section 301(d)(2) delegates to

the Administrator broad discretion in determining those provisions of

the Act for which it is appropriate to treat Tribes as States.

EPA interprets these provisions to mean that, both in the case of

TIPs and in the case of other Tribal air programs (``TAPs''), where EPA

finds that it is not appropriate for the same requirements to apply to

Tribes as to States, EPA may modify those requirements by rulemaking.

Accordingly, in this rulemaking EPA is proposing to make some changes

to the State requirements for Tribal CAA programs. In addition, EPA is

proposing to allow a Tribe to demonstrate to EPA that a specific CAA

requirement may be inappropriate for that Tribe in light of the

circumstances presented in a particular case. These issues are

discussed further in Parts III.C.2 and C.3 below.

1. Modular Approach to Tribal Air Programs

Because Tribal governments have limited resources, and because

Federal funding to support Tribal efforts is also limited, Tribes may

decide to implement only certain of the CAA provisions for which EPA

has determined it is appropriate to treat Tribes in the same manner as

States. In order to provide flexibility and incentive for Tribal

governments to assume responsibility for CAA programs, Tribes may

submit reasonably severable elements of programs to EPA for approval

instead of entire complex programs. However, in order to be approved,

any such submittal must meet all applicable minimum Federal

requirements.

As one of the first steps in identifying Tribal priorities, EPA

encourages Tribes to thoroughly assess their current air quality

through emission inventories. Tribes should develop an accurate,

comprehensive and current inventory of emissions from all sources of

air pollution within the reservation and should project potential

future emissions based on likely growth. This will help Tribes estimate

the nature and location of air quality problems and, in turn, help

prioritize Tribal CAA program development.17 Note that EPA has

issued detailed guidance on how to conduct emission inventories.18

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\1\7As discussed in Part II.B. above, EPA intends to provide

Tribal air quality protection when Tribes do not develop such

programs. EPA's efforts will take place in a prioritized, phased-in

fashion due to limitations on Federal resources.

\1\8See Volumes I-V of the Procedures for Emission Inventory

Preparation--Volume I: Emission Inventory Fundamentals, EPA-450/4-

81-026a, Sept. 1981; Volume II: Point Sources, EPA-450/4-81-026b,

Sept. 1981; Volume III: Area Sources, EPA-450/4-81-026c, Sept. 1981;

Volume IV: Mobile Sources, EPA-450/4-81-026d, 1992; Volume V:

Bibliography, EPA-450/4-81-026e, Sept. 1981. The Clearinghouse for

Inventories and Emission Factors, (919) 541-5285, has information on

obtaining copies of these and other emission inventory guidance

documents.

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The results of Tribal emissions inventory assessments and

projections regarding future growth will help Tribes to determine

whether relatively few or many activities will need to be implemented

immediately. Some minor problems may be addressed through public

education and basic strategies to control the sources of pollution.

Other problems may require some combination of monitoring, modelling

and the development of Tribal plans and regulations. If future growth

in emissions is projected, Tribes should also consider developing

programs for the Prevention of Significant Deterioration of Air Quality

(``PSD''). See Addendum A, ``Title I'' discussion (overview of the PSD

program) and Part III.D.

Where the emissions inventory reveals a potential air quality

problem, air quality monitoring can help further characterize the

potential problem. EPA has issued regulations and guidance on air

quality monitoring. EPA's air quality monitoring regulations are set

out at 40 CFR part 58. Among other things, Appendices A through G to 40

CFR part 58 describe air quality network design, criteria for citing

air quality monitors and quality assurance criteria.

In prioritizing Tribal efforts, Tribes should also evaluate the

expertise and resource requirements needed to implement desired

programs. As stated above, Tribes will be given the flexibility of

implementing programs in a modular fashion. Thus, Tribes can develop

reasonably severable CAA programs to address particular air quality

problems and submit them to EPA for approval.

For example, a Tribe having a PM-10 air quality problem may develop

a partial PM-10 nonattainment implementation plan that addresses

pollution from existing sources but does not, for example, contain a

program governing the review of new sources that propose to locate in

the area. EPA would not decline to approve the submittal until the

Tribe developed a nonattainment new source review program for PM-10 or

developed a plan for addressing an ozone pollution problem.

Similarly, a Tribe having relatively good air quality and

anticipating likely new source growth in the area may choose to focus

resources on developing a PSD program. The CAA's PSD permit program

provides for preconstruction review of the air quality impacts

associated with proposed new or modified major stationary sources in

areas meeting air quality standards. The permitting process is to

ensure that the proposed source employs state-of-the-art control

technology, does not cause or contribute to an exceedance of air

quality standards, and does not adversely impact National Parks and

Wilderness areas.

A Tribe may develop and submit to EPA for approval a PSD permit

program alone. A Tribe expecting certain categories of new source

growth may develop and submit to EPA for approval a PSD permit program

addressing those sources or source categories.19 Under the rule

proposed today, if the implementation plan elements or other partial

CAA program submitted by the Tribe is reasonably severable and meets

the applicable minimum requirements under Federal law, EPA will approve

the submittal.

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\1\9As described elsewhere in this notice, EPA will issue PSD

permits for any sources not covered by an approved PSD program.

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2. Procedures for Reviewing and Approving Tribal Implementation Plans

(``TIPs'')

The CAA contains provisions which specifically govern EPA's review

and processing of the State implementation plans (SIPs) developed under

Title I of the Act to provide for attainment and maintenance of the

national ambient air quality standards (NAAQS). See Addendum A, ``Title

I'' discussion. These provisions are set forth in section 110(k) of the

Act. The CAA authorizes EPA to amend, by regulation, the procedures

governing the review and processing of analogous Tribal implementation

plans (TIPs). See sections 110(o) and 301(d)(3).

In broad terms, section 110(k)(1) provides the criteria EPA is to

apply in determining whether a submittal is complete and therefore

warrants further review and action. See also 57 FR 13,498, 13,565

(April 16, 1992). The EPA's completeness criteria for SIP submittals

are set out at 40 CFR Part 51, Appendix V. EPA is required to make

completeness determinations within 60 days of receiving a SIP

submittal. However, a submittal is deemed complete by operation of law

if a completeness determination has not been made by EPA within 6

months of EPA's receipt of the submittal. Section 110(k)(1) & 57 FR at

13,565.

Section 110(k)(3)-(4) address EPA's review of submittals that have

been deemed complete. For example, section 110(k)(3) provides that EPA

shall fully approve submittals that meet all of the applicable

requirements of the Act, and partially approve and disapprove

submittals that meet only a portion of the applicable requirements.

Section 110(k)(4) further authorizes EPA to conditionally approve

commitments by a State to adopt specific enforceable measures by a date

certain that is no later than one year after the approval. The

conditional approval is automatically converted to a disapproval if the

State fails to fulfill the commitment. Section 110(k)(2) directs EPA to

act on a submittal within 12 months of determining it to be complete.

The Act calls for the imposition of sanctions and the issuance of a

Federal implementation plan when a State fails to submit a required

plan or such plan is disapproved. See sections 110(c)(1), 110(m) and

179 of the Act. Guidance on EPA's implementation of these and related

provisions is set out in a July 9, 1992 memorandum from John Calcagni,

``Processing of State Implementation Plan (SIP) Submittals.''

As indicated previously, the Act does not require Tribes to submit

TIPs. For that reason and other reasons specified above, EPA is not

proposing to treat Tribes in the same manner as States for the

implementation plan submittal deadlines specified in the Act. See Part

III.B above. Further, EPA is proposing to accept any reasonably

severable portion of an applicable Tribal implementation plan.

EPA is proposing to apply the completeness criteria to TIPs in the

manner described below. If a Tribe submits a reasonably severable

portion of a TIP that meets applicable completeness criteria, EPA will

continue to process the submittal. If the submittal is incomplete EPA

will return it to the Tribe, identifying the deficiencies. EPA will

exercise one of two options with respect to a complete TIP submittal.

EPA will fully approve any portion of a TIP if it is reasonably

severable and meets the applicable Federal requirements. For any

portion that is not approvable, EPA will disapprove the submittal and

work closely with the Tribe to correct the identified deficiencies.

However, as noted earlier in Part III.B, EPA's disapproval of a TIP

will not have the mandatory sanctions consequences that apply to States

under section 179 of the Act or the consequences under section

110(c)(1) of requiring a FIP within two years of the disapproval.

As with SIPs, TIPs should be submitted to the EPA Regional Office

for the region in which the Tribe is located. Addendum B to this notice

contains a list and the addresses of EPA's Regional Offices and a map

indicating the regions that they encompass. Any Tribes that have not

yet been determined to be eligible by EPA for CAA program purposes must

submit the materials described in Part III.A above, in conjunction with

any TIP submittal.

3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')

EPA will review all other Tribal air program submittals in light of

the applicable statutory and regulatory requirements as well as EPA

policy, including the modular concept described above. EPA is proposing

in today's rule to treat Tribes in the same manner as States for all of

the provisions of the CAA, with the limited exceptions identified in

Part III.B & C above. However, EPA recognizes that in proposing this

rule and obtaining comments, EPA may not have anticipated and

identified all of those requirements applicable to States that would be

infeasible or inappropriate to apply to Tribes. Therefore, EPA is

proposing to add a regulatory provision that will generally allow

Tribes to demonstrate to EPA, in conjunction with the submittal of a

TAP, that treatment of a Tribe in the same manner as a State for a

particular provision is inappropriate or administratively infeasible.

EPA will review the Tribal demonstration and take appropriate action.

TAPs should be submitted to the Regional Office for the region in

which the Tribe is located. See Addendum B. EPA will internally review

TAPs in the same manner as it reviews State submittals for the specific

CAA programs presented, consulting with and obtaining the concurrence

of the appropriate EPA offices. A determination that a TAP is not

approvable or that a Tribe has not met the general eligibility

requirements described in Part III.A above does not preclude the Tribe

from making subsequent submittals at a future date. If EPA determines

that a Tribal submittal is deficient or incomplete, EPA will work

closely with the Tribe to identify and correct the deficiencies.

D. Revisions to CAA Implementing Regulations

The regulations implementing the CAA span many pages of the Code of

Federal Regulations. In today's action, EPA is proposing to add new 40

CFR part 49, which will address the Tribal CAA authority described in

this notice. To implement this authority EPA is also proposing to add a

general requirement in part 49 that eligible Tribes will be treated in

the same manner as States under all of EPA's existing, currently

effective regulations implementing the Clean Air Act, except those

regulations implementing provisions of the CAA for which EPA has

concluded that it would be inappropriate to treat Tribes as States.

Such exceptions are described in detail in Part III.B of this notice.

EPA will undertake a major effort, in conjunction with forthcoming

rulemaking initiatives and its periodic review and revision of existing

regulations, to make conforming changes to all CAA implementing

regulations. As examples, today's proposed rule contains conforming

modifications to 40 CFR Parts 50 and 81. The discussion below also

explains in detail how the existing regulations implementing new source

review permitting requirements and Title V permit program requirements

would be affected by the action proposed today. The general regulatory

provision applying existing, currently effective regulations to Tribes,

as described in the previous paragraph, will address the application of

existing regulations during the interim period in which conforming

changes are made to CAA regulations.

Further, in Part IV below, EPA outlines potential ways in which

EPA's administration of Federal financial assistance for Tribes may

differ from States. Thus, EPA is proposing to make corresponding

changes to regulations implementing Federal financial assistance

requirements.

1. 40 CFR Part 35--State [Tribal] and Local Assistance

EPA is proposing to make changes to its regulations at 40 CFR Parts

35 related to Federal financial assistance. The proposed changes are

described in detail in Part IV of today's preamble.

2. 40 CFR Part 49--Tribal Clean Air Act Authority

The general Tribal authority provisions proposed in today's action

will be codified at 40 CFR part 49. This includes the following: EPA's

proposed interpretation of relevant jurisdictional issues, discussed in

Part II; the proposed simplified eligibility criteria, discussed in

Part III.A; the proposed finding that Tribes should generally be

treated in the same manner as States under the CAA, the specific

exceptions to this general finding, and the proposed provision

authorizing Tribes to identify and request additional exceptions on an

ad hoc basis, discussed in Part III.B, and; the general procedures for

reviewing Tribal air programs, discussed in Part III.C.

3. 40 CFR Part 50--National Primary and Secondary Ambient Air Quality

Standards

EPA is proposing conforming changes to 40 CFR part 50. These

modifications clarify that references to the term ``State'' in 40 CFR

Part 50 include, as appropriate, ``Indian Tribe'' and ``Indian

country.'' The revisions proposed clarify, for example, that under 40

CFR 50.2(c), the promulgation of NAAQS shall not be considered in any

manner to allow significant deterioration of existing air quality in

any portion of Indian country (as defined in 18 U.S.C. 1151). They also

clarify that in the same way that section 50.2(d) provides that States

retain discretion to establish ambient air quality standards more

stringent than the NAAQS, the establishment of NAAQS in no way

prohibits Indian Tribes from establishing ambient air quality standards

that are more stringent than the NAAQS.

4. 40 CFR Part 51--Requirements for Preparation, Adoption, and

Submittal of Implementation Plans.

The regulations in Part 51 contain the basic requirements for state

implementation plans (SIP). However, EPA has not systematically updated

40 CFR Part 51 since the passage of the 1990 Amendments to the Clean

Air Act. In many instances these regulatory requirements are

inconsistent with the revised law and are therefore inoperative as a

matter of law. See CAA section 193 (``regulation * * * in effect before

the date of enactment of the Clean Air Act Amendments of 1990 shall

remain in effect according to its terms, except to the extent * * *

inconsistent with any provision of this Act.'')

To facilitate SIP development under the amended law, EPA has issued

guidance documents. These documents reflected EPA's preliminary

interpretations of the relevant Act requirements at that time. See,

e.g., ``General Preamble for the Implementation of Title I of the Clean

Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992; 57 FR 18070,

April 28, 1992); ``New Source Review (NSR) Program Supplemental

Transitional Guidance on Applicability of New Part D NSR Permit

Requirements'' (Issued by Office of Air Quality Planning and Standards

Director on September 3, 1992); NOX Supplement to the General

Preamble (57 FR 55620, November 25, 1992).

EPA intends to update both the existing and new source regulatory

requirements in Part 51 to make clear which regulatory provisions were

rendered nugatory by the 1990 Amendments and which continue to have

legal force.

Interim implementation of applicable Title I requirements for

Tribal lands should be guided by EPA's preliminary interpretations of

the revised Title I requirements and the interpretive statements in

this notice.

5. 40 CFR Part 52--Approval and Promulgation of Implementation Plans

Federal PSD Permitting. EPA has issued rules that provide for

Federal implementation of the PSD permit program (preconstruction

permit requirements applicable to major stationary sources or major

modifications20 in areas that currently meet the NAAQS). 40 CFR

52.21. In the same manner as States, Federal implementation of a PSD

program on Tribal lands applies in any case where the Tribe does not

have an approved PSD program.

---------------------------------------------------------------------------

\2\0Note that a proposed source in certain listed source

categories is ``major'' for PSD purposes if it has the potential to

emit 100 tons per year of any pollutant regulated under the Act.

Other sources are ``major'' for PSD if their emissions may exceed

250 tons per year. The regulatory definitions of ``major stationary

source'' and ``major modification'' for the PSD program are set out

at 40 CFR 52.21(b) (1), (2).

---------------------------------------------------------------------------

EPA is undertaking a comprehensive regulatory effort to revise its

PSD rules (and its nonattainment NSR program, see below) consistent

with some of the changes made to the substantive PSD program under the

revised Act (and as a part of a broader reform initiative). Since these

revised rules have not yet been promulgated, EPA has issued detailed

guidance addressing transitional and interim implementation issues

associated with the changes made by the 1990 Amendments. See 57 FR

18070 at 18074-77 (April 28, 1992) (Appendix D--``New Source Review

(NSR) Program Transitional Guidance,'' March 11, 1991). At least until

any further guidance is provided in EPA's NSR rulemaking, EPA's review

and issuance of PSD permits for applicable sources proposing to locate

on Tribal lands will be in accordance with the previously-issued PSD

transitional permitting guidance, today's guidance, and 40 CFR 52.21,

to the extent that the existing provisions of 40 CFR 52.21 are

consistent with the amended Act.21 See section 193 of the Act.

---------------------------------------------------------------------------

\2\1The 1977 Amendments to the CAA authorized Indian tribes to

redesignate the classification of lands within the exterior

boundaries of a reservation for PSD planning purposes. Section

164(a), 42 U.S.C. 7474(c); Nance v. EPA, 645 F.2d 701 (9th Cir.

1981), cert. den'd, 451 U.S. 1081 (1981). Area classifications for

PSD determine the maximum increment of degradation that is

permissible in a clean air area. Tribal authority to redesignate

areas for this purpose is set forth in 40 CFR 52.21. Tribes continue

to have this authority under the Act as amended in 1990.

---------------------------------------------------------------------------

Federal NSR Permitting. 40 CFR 52.24(c) provides that 40 CFR part

51, Appendix S (``Offset Ruling'') governs the issuance of NSR permits

(required for the construction and operation of new and modified major

stationary sources in nonattainment areas) where approved State rules

are not in place. The Offset Ruling sets out EPA's interpretation

regarding the conditions that are designed to ensure that sources and

source modifications subject to the NSR requirements will be controlled

to the greatest degree possible and that more than equivalent

offsetting emission reductions will be obtained from existing sources,

thus ensuring progress toward achievement of the NAAQS.

The 1990 Amendments to the CAA added new provisions to the Act

addressing the substantive NSR permitting requirements. See, e.g.,

sections 173, 182 and 189(b)(3) of the Act, 42 U.S.C. 7503, 7511a and

7513a(b)(3). As with the new changes to the PSD program, EPA has issued

guidance addressing the implementation of the revised nonattainment NSR

requirements in the period before EPA's comprehensive regulations are

adopted. See 57 FR 13498 (April 16, 1992); 57 FR 18070, 18075-77 (April

28, 1992) (Appendix D--``New Source Review (NSR) Program Transitional

Guidance,'' March 11, 1991); ``New Source Review (NSR) Program

Supplemental Transitional Guidance on Applicability of New Part D NSR

Permit Requirements'' (Sept. 3, 1992). In the interim period before EPA

issues further guidance through its Federal nonattainment NSR

rulemaking to implement the amended Act, EPA intends to conduct

nonattainment NSR permitting on Tribal lands consistent with the Offset

Ruling and the transitional EPA guidance addressing the revisions to

the Act.

6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs

This discussion explains how the regulations at 40 CFR Part 70

implementing the Title V operating permit program would be affected by

today's proposed action. EPA is currently developing Federal rules to

be codified in 40 CFR Part 71 that will authorize direct Federal

implementation of Title V permit program requirements for States and

Tribes that lack adequate program coverage.

Program Submittal Deadlines and Processing. Program submittal

deadlines are set out at 40 CFR 70.4(a). Tribes will not be compelled

to develop and submit Title V permit programs to EPA for approval. 40

CFR 70.4(e) addresses the processing of Title V program submittals. Any

Tribal submittal that is incomplete or disapproved will be returned to

the Tribe following such determination. To the extent possible, EPA

will work with the Tribe to remedy deficiencies in the Tribal program.

However, the timeframes governing EPA's processing of Tribal submittals

will be the same as those applicable to State submittals.

Program Coverage. The regulations call for States to issue permits

that assure compliance with ``each applicable requirement * * * by all

part 70 sources''. 40 CFR 70.4(b)(3)(i); see also 40 CFR 70.6(a)(1)

(``[e]ach permit issued under this part shall include * * * [e]mission

limitations and standards * * * that assure compliance with all

applicable requirements at the time of permit issuance''). Approvable

Tribal programs must address all affected Part 70 sources within a

Tribe's jurisdiction.

Deadlines for Permit Applications and Processing of Applications.

40 CFR 70.5(a) requires the owner or operator of Part 70 sources to

submit applications within 12 months of becoming subject to the

program. 40 CFR 70.7(a)(2) requires the permitting authority to act on

an application within 18 months of receipt. To ensure that permits are

expeditiously submitted and reviewed, these deadlines will apply with

equal force to Tribal programs, to the extent that Tribes elect to

develop and implement such programs.

40 CFR 70.4(b)(11) requires States to have a transition plan for

acting on applications received within the first 12 months after

approval, such that the State will act on one-third of the applications

in each of the first three years of its program. This requirement

overrides the 18-month requirement for acting on applications during

the first 3 years. As discussed in Part III.B.2.e above, the 3-year

implementation requirement in section 503(c) is among the provisions of

the CAA for which EPA is not proposing to treat Tribes in the same

manner as States. For Tribal programs, this initial program phase-in

will be based on a schedule developed by the Regional Office in

conjunction with each Tribe. This case-by-case approach will ensure

that any transition adequately accounts for the scope of Tribal program

coverage, the universe of Part 70 sources and the extent of Tribal

expertise and resources. However, EPA is also proposing to provide that

in no case shall such a transitional schedule exceed 5 years from the

date of EPA's approval of the Tribal program.

Enforcement. Required enforcement authority is set out in 40 CFR

70.11. As stated above, Federal law prohibits Indian Tribes from

holding criminal trials of or imposing criminal penalties on non-

Indians, in the absence of a treaty or other agreement to the contrary.

Oliphant, at 435 U.S. 191. In addition, Federal law prohibits Indian

Tribes from imposing for conviction of any one offense a criminal fine

greater than $500. 25 U.S.C. section 1302(7). Tribes requesting Title V

program approval will be required to enter into formal Memorandum of

Agreement with EPA, through which it would agree to provide for the

timely referral of criminal enforcement matters to the appropriate EPA

Regional Administrator.

Operational Flexibility. The three operational flexibility

provisions at 40 CFR 70.4(b)(12) will be optional for Tribes as will 40

CFR 70.6(a)(8), (10) (emissions trading in the permit) and 40 CFR

70.6(a)(9) which requires States to include alternative operating

scenarios, if requested, in their permits.

Permit Issuance, Revisions Procedures. Generally, for the

procedures governing permit issuance and revision, EPA will treat

Tribes in the same manner as it treats States. While Tribes will have

some flexibility regarding the form and manner of public notice

requirements under 40 CFR 70.7(h), the minimum period for public notice

will be 30 days for Tribes as with States.

Tribes, like States, must have authority to reopen permits for

cause, as required by 40 CFR 70.7(f).

Application content requirements. These requirements are set out in

40 CFR 70.5. These requirements will apply with equal force to sources

within Tribal jurisdiction, since EPA believes that the information

specified in this provision constitutes the minimum information that is

essential to the issuance of an effective permit.

Permit content requirements. These are found in 40 CFR 70.6(a),

(c). The permit content requirements will generally apply to Tribes in

the same manner in which they apply to States. These remaining

requirements are necessary to an effective permit. These requirements

include 40 CFR 70.6(a)(3), which requires the State and, under today's

proposal, the Tribal permitting authority to insert monitoring

requirements into the permit where the underlying monitoring

requirement is deficient.

Judicial Review. 40 CFR 70.4(b)(3)(x)-(xii) requires States to

provide an opportunity for judicial review of a final permit action and

for the State's failure to take such final action. Tribes will have to

meet the same requirements.

EPA Veto and Citizen Petition Process. 40 CFR 70.8 requires States

to provide EPA with a 45-day review period and opportunity for veto.

The provision further specifies that no permit may issue prior to the

expiration of that period or at all over an EPA veto. It also provides

citizens the right to petition EPA to veto a State-issued permit. These

provisions will apply with equal force to Tribal programs.

40 CFR 70.8(b) also requires that State programs provide that the

permitting authority notify any affected States of each draft permit.

This requirement to provide notice will apply with equal force to

Tribal programs. Further, any State or Tribal permitting authority will

provide notice to any affected Tribe in the same manner as the

regulations require notification to affected States. See Part III.B.4

above.

General Revisions. References to States and State officials will

include Tribes and corresponding Tribal officials.

7. 40 CFR Part 81--Designation of Areas for Air Quality Planning

Purposes.

EPA is proposing conforming regulatory changes to part 81, in light

of today's proposal to treat Indian Tribes in the same manner in which

it treats States under the air quality designation provisions set out

at section 107 of the Act.

Pursuant to section 107(d)(3) of the CAA EPA would notify eligible

Indian Tribes that EPA has information indicating that an air quality

designation for an Indian Reservation should be revised. Then, as with

the Governor of an affected State, the relevant Tribal leader would

have 120 days to reply to EPA. In addition, eligible Indian Tribes

would on their own initiative have authority to submit a redesignation

request to EPA for approval in the same way that States and the

relevant Governors are authorized to under section 107(d)(3)(D) of the

Act.

EPA is proposing to add explicit definitions of Indian Reservation,

Indian Tribe and State to 40 CFR Part 81. EPA is also proposing

revisions to subpart C of Part 81 to reflect the authority that

eligible Indian Tribes may have to initiate revisions to designations.

Future air quality designations for eligible Tribes will be

codified under an entry for the affected Indian Tribe in subpart C,

Part 81 that is the same as State air quality designations under Part

81.

IV. Federal Financial Assistance

A. Sources of Funding Assistance

Financial assistance for Indian Tribes under the Clean Air Act is

available via two principal authorities: grants for the support of air

pollution planning and control programs under section 105 (42 U.S.C.

7405); and grants for investigations, demonstrations and studies into

the causes, effects, extent, prevention and control of air pollution

under section 103 (42 U.S.C. 7403).

In addition to these potential sources of funds under the Clean Air

Act, EPA can provide Tribes funding assistance for air quality work

under the Agency's Indian Environmental General Assistance Grants

Program (40 CFR part 35, subpart Q). These grants provide funds to

Tribes for planning, developing and establishing the capacity to

implement environmental programs on Indian lands, regardless of the

program's environmental media.

Each of these assistance and fee programs carries various statutory

and/or administrative requirements which are discussed and explained in

this portion of the preamble. Proposed regulatory revisions are set out

at the end of this notice.

B. Tribal Eligibility for Air Grant Assistance

In today's action, EPA is proposing to modify certain regulatory

and administrative limitations on the manner in which Indian Tribes

qualify for and obtain financial assistance under the Act. EPA also

seeks comment from interested parties on options in meeting the non-

Federal matching requirements for grants obtained under section 105

authority. The financial assistance options are described below.

1. Section 103 Air Assessment Grants

Tribes may apply for grant assistance to assess reservation air

quality conditions under authority of section 103(b)(3) of the Act.

Section 103(b)(3) allows EPA to fund investigations, research, surveys,

and studies concerning any specific problem of air pollution in

cooperation with any air pollution control agency. Tribes may undertake

specific projects to assess Tribal air quality conditions at any time.

Typically, Tribes will undertake such projects as an initial step,

prior to initiating development and adoption of Tribal regulations to

control air resources. Section 103(b)(3) grant funds are not available

for developing Tribal capacity.

Funds provided under section 103 are available to Tribes at up to a

95% Federal share. Thus each recipient must contribute at least five

percent of the total allowable project costs. The Agency believes that

the five percent cost sharing requirement should be retained.

EPA rules limit award of section 103 grants to a maximum of five

years for any one project period. 40 CFR 40.125-1. This should allow a

reasonable amount of time for Tribal recipients of assistance to assess

the nature of their air quality and determine the extent of any air

quality problems. However, the Agency will carefully consider requests

for deviations under 40 CFR 31.6 for extensions of grant project

periods. Further, section 103 is available for multiple project

periods. Finally, Tribes that have received previous section 103 grants

will remain eligible for future grants to fund appropriate projects at

any time. The determination of each Tribal applicant's continued

eligibility and the appropriate authority of award will be the

responsibility of the appropriate Regional Administrator. As this

suggests, Tribes not establishing eligibility to be treated in the same

manner as States under section 301(d) will remain eligible, as they are

currently, for assistance under section 103(b)(3).

2. Section 105 Air Program Grants

The Agency encourages eligible Tribes to apply for continuing

environmental assistance under authority of section 105 and 301(d) of

the Act, particularly after a comprehensive assessment of reservation

air quality conditions. Section 105 allows EPA to make grants for

implementing programs for the prevention and control of air pollution

or implementation of air quality standards.

Currently, in order to be eligible to receive a grant under section

105, a recipient must meet the definition of an air pollution control

agency specified in section 302(b) of the Act. This definition includes

``[a]n agency of an Indian tribe.'' See section 302(b)(5). Thus,

section 302(b)(5) authorizes 105 grants to Tribes that have not

established their eligibility to be treated in the same manner as

States.

The Act expressly provides that until the promulgation of these

regulations, EPA may continue to provide section 105 grants to eligible

Tribes on this basis. See section 301(d)(5). EPA believes that section

301(d)(5) was intended to ensure that Tribes would be able to receive

financial assistance while this regulation was being developed. The

Agency does not believe that this provision, which on its face is

designed to ensure Tribal access to funds, must be read to require that

EPA cease awarding section 105 grants to Tribes not meeting the

eligibility requirements after this regulation is issued.

Consistent with this legal interpretation, this regulation provides

two avenues for Tribes to obtain section 105 assistance. A Tribe that

does not establish eligibility for treatment in the same manner as a

state under section 301 but that is ``an agency of an Indian tribe,''

and therefore meets the definition of an ``air pollution control

agency'' under section 302(b)(5), can obtain 105 funds, subject to the

same limitations that apply to other 105 grant recipients. These

limitations include the statutory requirement that the grant recipient

contribute matching funds for 40% of the allowable project costs.

Alternatively, Tribes that establish their eligibility to be

treated in the same manner as States under section 301(d) may, like

States, receive section 105 financial assistance. However, assistance

to Tribes pursuant to 301(d) can be provided without being subject to

every limitation that applies to such grants when made to States.

Section 301(d)(4) expressly provides that, in cases where it is not

appropriate to treat Tribes as identical to States, EPA ``may provide,

by regulation, other means by which the [Agency] will directly

administer such provisions so as to achieve the appropriate purpose.''

EPA believes that requiring the 40% match as a prerequisite for

assistance under section 105 could impose an undue financial burden on

Tribes; the Agency further believes it can best administer section 105

to achieve the purpose of maximizing tribal access to this assistance

by providing relief from the cost share requirement. However, based on

statutory language, this special relief will, as noted above, only be

available for Tribes that have established their eligibility to be

treated in the same manner as states and therefore are eligible for

financial assistance pursuant to section 301(d).

This proposal seeks comments on the appropriate level of Tribal

cost share for a section 105 grant match, from a minimum of 5% to a

maximum of 40%. This proposal also seeks comments on the establishment

of a phase-in period for Tribes to meet whatever match is ultimately

required for section 105 grants.

A 40% match of air grant funds under section 105 is currently

required from States. However, when these air grants were originally

awarded some 25 years ago, a 25% State match was required. Given the

lack of Tribal financial resources, there is concern that even this

lower level of Tribal match may not be appropriate in many instances.

In addition, the Agency believes it may be appropriate to allow a Tribe

establishing eligibility to be treated in the same manner as a state to

begin receiving 105 assistance with a lower match, which would

gradually be phased upward until it reaches some appropriate level.

During the development of the regulation, EPA discussed the option

of developing a sliding scale, with differing levels of match based on

tribal demonstrations of ability to pay. This option is not being

proposed in this regulation, due to the Agency's concern that requiring

some tribes to pay a higher match than others could create barriers to

participation by those tribes, and that all tribes experience resource

constraints.

The Agency also recognizes that its approach should be consistent

with President Clinton's April 29 Presidential Memorandum on

``Government-to-Government Relations with Native American Tribal

Governments.'' 59 FR 22,951 (May 4, 1994). That Memorandum directs

agencies to ``take appropriate steps to remove any procedural

impediments to working directly and effectively with tribal governments

on activities that affect the * * * governmental rights of the

tribes.'' The Agency believes minimizing the burdens to participation

by all tribes may be the approach most consistent with this directive.

Although the Agency is not proposing a sliding scale, it requests

comments on whether such an approach might be feasible and the criteria

that could be used to determine the matching requirement for each grant

recipient. The Agency solicits comments on: An appropriate initial

match level equal to or exceeding five percent; the length appropriate

for a phase-in period (if any) of the match; the rate at which the

match would be phased upward; and an appropriate level for a permanent

match requirement.

The Clean Air Act also establishes one purpose for which Tribes may

not be treated in the same manner as states. Under section 301(d)(1)(A)

Tribes may not be treated in the same manner as States for purposes of

section 105(b)(2) which ensures that each State applying for assistance

have made available to it for application (but not necessarily for

award) a minimum of one half of one percent of the total section 105

amount annually appropriated under the Act.

3. Tribal Agencies and Consortia

Section 103 and 105 assistance is currently available to an

individual Tribe because it constitutes an air pollution control agency

under section 302(b)(5). The Agency also believes it may be appropriate

to provide assistance to groups of tribes, typically tribes with air

resources that are either contiguous or similar in their

characteristics, when those tribes join into consortia for the purpose

of applying for and managing the air quality financial assistance

described above. A consortium is a partnership between two or more

Indian tribal governments authorized by their governing bodies. Tribes

can join into consortia in circumstances they find appropriate. The

``economies of scale'' made possible through Tribal consortia

arrangements may allow for the assumption of air resource management

responsibilities that may not otherwise be possible with small, single-

Tribe environmental agencies.

Consortia will have discretion in demonstrating how they will meet

the matching funds requirement. Therefore, when a consortium reaches

the point that it must provide matching funds to obtain grant funds,

the consortium may combine its resources to meet the requirement in any

manner it deems appropriate.

C. Use of EPA General Assistance Grants

EPA has recently issued regulations governing the use of Indian

Environmental General Assistance Grants as required under 42 U.S.C.

4368b. Indian Environmental General Assistance Program Act of 1992; 42

U.S.C. 4368b, (58 FR 63876, December 2, 1993) codified at 40 CFR part

35, subpart Q. The regulations establish requirements for applying for

and utilizing general assistance funds. The Indian Environmental

General Assistance Grants may be used by Tribes to fund program

development activities in various environmental media, including air,

and are thus considered to be an important means of establishing

overall Tribal environmental program capability. Moreover, the award of

these grants in no way precludes a Tribe from applying for, and being

awarded, air grant assistance under section 103 or section 105 of the

Act.

D. Additional Administrative Requirements

Each Tribal application for assistance must still meet the Agency's

general administrative requirements for grants which are set forth in

more detail in 40 CFR Parts 31, 32 and 34 and which are not modified by

this regulation. Additional requirements specific to section 105 air

grants are detailed in 40 CFR 35 and, for section 103, in 40 CFR Part

40.

V. Miscellaneous

A. Executive Order (EO) 12866

Section 3(f) of EO 12866 defines ``significant regulatory action''

to mean any regulatory action that is likely to result in a rule that

may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive order.

This proposed rule was determined not to be a significant

regulatory action. A draft of this proposed rule was nevertheless

reviewed by the Office of Management and Budget (OMB) prior to

publication because of anticipated public interest in this action

including potential interest by Indian Tribes and State/local

governments.

EPA has placed the following information related to OMB's review of

this proposed rule in the public docket referenced at the beginning of

this notice:

(1) Materials provided to OMB in conjunction with OMB's review of

this proposed rule; and

(2) Materials that identify substantive changes made between the

submittal of a draft proposed rule to OMB and this notice, and that

identify those changes that were made at the suggestion or

recommendation of OMB.

B. Regulatory Flexibility Act (RFA)

Under the RFA, 5 U.S.C. sections 601-612, EPA must prepare, for

rules subject to notice-and-comment rulemaking, initial and final

Regulatory Flexibility Analyses describing the impact on small

entities. The RFA defines small entities as follows:

--Small businesses. Any business which is independently owned and

operated and is not dominant in its field as defined by Small Business

Administration regulations under section 3 of the Small Business Act.

--Small governmental jurisdictions. Governments of cities, counties,

towns, townships, villages, school districts or special districts, with

a population of less than fifty thousand.

--Small organizations. Any not-for-profit enterprise which is

independently owned and operated and is not dominant in its field.

However, the requirement of preparing such analyses is inapplicable

if the Administrator certifies that the rule will not, if promulgated,

have a significant economic impact on a substantial number of small

entities. 5 U.S.C. 605(b).

The proposed rule, if promulgated, will not have a significant

economic impact on a substantial number of small entities. Many Indian

Tribes may meet the definition of small governmental jurisdiction

provided above. However, the proposed rule does not place any mandates

on Indian Tribes. Rather, it authorizes Indian Tribes to demonstrate

their eligibility to be treated in the same manner as States under the

Clean Air Act, to submit CAA programs for specified provisions and to

request Federal financial assistance as described elsewhere in this

preamble. Further, the proposed rule calls for the minimum information

necessary to effectively evaluate Tribal applications for eligibility,

CAA program approval and Federal financial assistance. Thus, EPA has

attempted to minimize the burden for any Tribe that chooses to

participate in the programs provided in this proposed rule.

The proposed regulation will not have a significant impact on a

substantial number of small businesses. Any additional economic impact

on the public resulting from implementation of this proposed regulation

is expected to be negligible, since Tribal regulation of these

activities is limited to areas within Tribal jurisdiction and, in any

event, EPA has regulated or may regulate these activities in the

absence of Tribal CAA programs.

The proposed regulation will not have a significant impact on a

substantial number of small organizations for the same reasons that the

proposed regulation will not have a significant impact on a substantial

number of small businesses.

Accordingly, I certify that this proposed regulation, if

promulgated, will not have a significant economic impact on a number of

small entities.

C. Executive Order (EO) 12875

EO 12875 is intended to reduce the imposition of unfunded mandates

upon State, local and Tribal governments. To that end, it calls for

Federal agencies to refrain, to the extent feasible and permitted by

law, from promulgating any regulation that is not required by statute

and that creates a mandate upon a State, local, or Tribal government,

unless funds for complying with the mandate are provided by the Federal

government or the Agency first consults with affected State, local and

Tribal governments.

The issuance of this proposed rule is required by statute. Section

301(d) of the CAA directs the Administrator to promulgate regulations

specifying those provisions of the Act for which it is appropriate to

treat Indian Tribes as States. Moreover, this proposed rule would not

place mandates on Indian Tribes. Rather, as discussed in section V.B

above, this rule authorizes or enables Tribes to demonstrate their

eligibility to be treated in the same manner as States under the Clean

Air Act and to submit CAA programs for the provisions specified by the

Administrator. Further, the proposed rule also explains how Tribes

seeking to develop and submit CAA programs to EPA for approval may

qualify for Federal financial assistance.

D. Paperwork Reduction Act

OMB has approved the information collection requirements pertaining

to grants applications contained in this rule under the provisions of

the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and has assigned

OMB control number 2030-0020.

This collection of information pertaining to the grants application

process has an estimated reporting burden averaging 29 hours per

response and an estimated annual recordkeeping burden averaging 3 hours

per respondent. These estimates include time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

The information collection requirements in this proposed rule

pertaining to an Indian Tribe's application for eligibility to be

treated in the same manner as a State or ``treatment as a State'' have

been submitted for approval to OMB under the Paperwork Reduction Act,

44 U.S.C. 3501, et seq. An Information Collection Request document has

been prepared by EPA (ICR No. 1676.01) and a copy may be obtained from

Sandy Farmer, Information Policy Branch; EPA; 401 M St., SW. (Mail Code

2136); Washington, DC 20460 or by calling (202) 260-2740.

This collection of information for Treatment in the Same Manner as

States (TISMAS) to carry out the Clean Air Amendments has an estimated

reporting burden of 20 annual responses, averaging 40 hours per

response and an estimated annual recordkeeping burden averaging 800

hours. These estimates include time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Send comments regarding these burden estimates or any other aspect

of these collections of information, including suggestions for reducing

this burden to Chief, Information Policy Branch; EPA; 401 M St., SW.

(Mail Code 2136); Washington, DC 20460; and to the Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' The

final rule will be accompanied with responses to OMB or public comments

on the information collection requirements contained in this proposal.

VI. Request for Public Comments

EPA requests public comments on all aspects of today's proposal,

including the following: EPA's proposed interpretation of the Clean Air

Act as delegating to Tribes jurisdiction over all air resources within

the exterior boundaries of the reservation; EPA's proposed

interpretation of the term ``reservation''; EPA's proposed

interpretation that in enacting the CAA, Congress found that the

activities regulated under the Act constitute a class of activities

that, if left unregulated, could have serious and substantial adverse

effects on public health and welfare, and accordingly, that these

activities would generally be within the inherent civil regulatory

authority of Tribes; EPA's position regarding Federally-administered

Clean Air Act programs to provide protection for Tribal air resources;

EPA's proposed implementation of its policy for streamlining

eligibility determinations; the CAA provisions for which EPA is

proposing to treat Indian Tribes as States, and the proposed exceptions

that EPA has identified in this rule; EPA's general approach to

encourage Tribal participation by allowing Tribes to submit reasonably

severable portions of CAA programs; EPA's proposed procedures for

reviewing Tribal air programs, including Tribal implementation plans

developed under Title I of the CAA; EPA's proposed revisions to its

implementing regulations, and; EPA's proposed administration of Federal

financial assistance to Tribes.

VII. Electronic Filing of Comments

A public docket has been established for this proposed rule under

docket number ``A-93-3087'' (including comments and data submitted

electronically as described below). The public docket is located in

M1500, 401 M Street, Washington, DC 20460. The information contained in

this public docket, including printed, paper versions of electronic

comments is available for inspection from 8 a.m. to 4 p.m., Monday thru

Friday, excluding legal holidays. Starting October 1, 1994, the docket

will be open 8 a.m. to 5:30 p.m., excluding legal holidays.

As part of an interagency ``streamlining'' initiative, EPA is

experimenting with submission of public comments on selected rulemaking

actions electronically through the Internet in addition to accepting

comments in traditional written form. This proposed rule is one of the

rulemaking actions selected by EPA for this experiment. From the

experiment, EPA will learn how electronic commenting works, and any

problems that arise can be addressed before EPA adopts electronic

commenting more broadly in its rulemaking activities. Electronic

commenting through posting to the EPA Bulletin Board or through the

Internet using the ListServe function raise some novel issues that are

discussed below in this Section.

To submit electronic comments, persons can either ``subscribe'' to

the Internet ListServe application or ``post'' comments to the EPA

Bulletin Board. To ``Subscribe'' to the Internet ListServe application

for this proposed rule, send an e-mail message to:

[email protected] that says `` Subscribe RIN-2060-AE95

.'' Once you are subscribed to the ListServe,

comments should be sent to: RIN-2060-AE[email protected].

For online viewing of submissions and posting of comments, the

public access EPA Bulletin Board is also available by dialing 202-488-

3671, enter selection ``DMAIL,'' user name ``BB____USER'' or 919-541-

4642, enter selection ``MAIL,'' user name ``BB____USER.'' When dialing

the EPA Bulletin Board type at the opening message. When the

``Notescaret]'' prompt appears, type ``open RIN-2060-AE95'' to

access the posted messages for this document. To get a listing of all

files, type ``dir/all'' at the prompt line. Electronic comments can

also be sent directly to EPA at: [email protected]

To obtain further information on the electronic comment process, or

on submitting comments on this proposed rule electronically through the

EPA Bulletin Board or the Internet ListServe, please contact John A.

Richards (Telephone: 202-260-2253; FAX: 202-260-3884; Internet:

[email protected]).

Persons who comment on this proposed rule, and those who view

comments electronically, should be aware that this experimental

electronic commenting is administered on a completely public system.

Therefore, any personal information included in comments and the

electronic mail addresses of those who make comments electronically are

automatically available to anyone else who views the comments.

Commenters and others outside EPA may chose to comment on the

comments submitted by others using the RIN-2060-AE95 ListServe or the

EPA Bulletin Board. If they do so, those comments as well will become

part of EPA's record and included in the public docket for this

rulemaking. Persons outside EPA wishing to discuss comments with

commenters or otherwise communicate with commenters but not have those

discussions or communications sent to EPA and included in the EPA

rulemaking record and public docket should conduct those discussions

and communications outside the RIN-2060-AE95 ListServe or the EPA

Bulletin Board.

EPA will transfer all comments received electronically in the RIN-

2060-AE95 ListServe or the EPA Bulletin Board, in accordance with the

instructions for electronic submission, into printed, paper form as

they are received and will place the paper copies in the official

rulemaking docket which will also include all comments submitted

directly in writing. All the electronic comments will be available to

everyone who obtains access to the RIN-2060-AE95 ListServe or the EPA

Bulletin Board; however, the official rulemaking docket is the paper

docket maintained at the address in ADDRESSES at the beginning of this

document. (Comments submitted only in written form will not be

transferred into electronic form and thus may be accessed only by

reviewing them in the EPA Docket as described above.)

Because the electronic comment process is still experimental, EPA

cannot guarantee that all electronic comments will be accurately

converted to printed, paper form. If EPA becomes aware, in transferring

an electronic comment to printed, paper form, of a problem or error

that results in an obviously garbled comment, EPA will attempt to

contact the comment submitter and advise the submitter to resubmit the

comment either in electronic or written form. Some commenters may

choose to submit identical comments in both electronic and written form

to ensure accuracy. In that case, EPA requests that commenters clearly

note in both the electronic and written submissions that the comments

are duplicated in the other medium. This will assist EPA in processing

and filing the comments in the rulemaking docket.

As with ordinary written comments, EPA will not attempt to verify

the identities of electronic commenters nor to review the accuracy of

electronic comments. EPA will take such commenters and comments at face

value. Electronic and written comments will be placed in the rulemaking

docket without any editing or change by EPA except to the extent

changes occur in the process of converting electronic comments to

printed, paper form.

EPA will address significant electronic comments either in a notice

in the Federal Register or in a response to comments document placed in

the rulemaking docket for this proposed rule. EPA will not respond to

commenters electronically other than to seek clarification of

electronic comments that may be garbled in transmission or conversion

to printed, paper form as discussed above. Any communications from EPA

employees to electronic commenters, other than those described in this

paragraph, either through Internet or otherwise are not official

responses from EPA.

List of Subjects

40 CFR Part 35

Environmental protection, Grant programs--environmental protection,

Grant programs--Indians, Indians, Reporting and recordkeeping

requirements.

40 CFR Part 49

Air pollution control, Environmental protection, Air pollution

control--Tribal authority, Air pollution control--Tribal eligibility

criteria, Indian tribes.

40 CFR Part 50

Air pollution control, Carbon monoxide, Environmental protection,

Lead, Nitrogen dioxide, Ozone, Particulate matter, and Sulfur oxides.

40 CFR Part 81

Air pollution control, Environmental protection, National parks,

Wilderness areas.

Dated: August 18, 1994.

Carol M. Browner,

Administrator.

Addendum A to Preamble--General Description of Clean Air Act

Programs

The Clean Air Act is codified in the United States Code (U.S.C.) at

42 U.S.C. 7401-7671q. There are six different Titles that comprise the

Act as codified.1 The following discussion contains a broad

overview of each Title with the objective of providing a general road

map to the Clean Air Act. The discussion is not, and is not intended to

be, a comprehensive and detailed discussion of Clean Air Act

requirements.

---------------------------------------------------------------------------

\1\The Clean Air Act is Chapter 85, Title 42 of the U.S. Code.

The Titles of the Act are actually subchapters of the Code. To avoid

confusion, these subchapters will be referred to herein as Titles of

the Act.

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To help illustrate the potential effect of today's proposal, the

discussion at times refers to Tribes as if the authority proposed today

was in effect. However, this authority will not be in place until EPA

takes final action on today's proposed rule. The process preceding

final action includes the consideration of public comments on today's

proposal that may alter the final rule.

Title I--National Ambient Air Quality Standards and Stationary Source

Requirements.

EPA has established national ambient air quality standards (NAAQS)

for certain air pollutants for the protection of the public health

(``primary'' standards) and welfare (``secondary'' standards). CAA

section 109, 42 U.S.C. 7409. EPA establishes these standards after a

thorough review of the latest scientific studies and literature

indicating the kind and extent of identifiable effects on public health

or welfare which may be expected from the presence of such pollutants

in the ambient air in varying quantities. CAA section 108, 42 U.S.C.

7408. EPA has established health and welfare NAAQS for six different

pollutants: ozone, carbon monoxide, particulate matter, sulfur dioxide,

nitrogen dioxide, and lead. These standards are codified in 40 CFR Part

50.

Areas nationwide are ``designated'' based on whether they meet the

NAAQS. Areas that do not meet the NAAQS are designated

``nonattainment.'' CAA section 107, 42 U.S.C. 7407. States containing

such areas are required to develop State implementation plans (SIPs)

which must bring the areas into attainment as expeditiously as

practicable. If EPA finalizes today's rule as proposed, Tribes may

submit such implementation plans (``TIPs''). Title I contains general

requirements that SIPs and, as appropriate, TIPs must meet (CAA section

110(a)(2), 42 U.S.C. 7410(a)(2)) as well as planning provisions (e.g.,

inventorying of emissions) and control requirements applicable to

existing stationary sources in nonattainment areas. CAA sections 171-

192, 42 U.S.C. 7501-7514a.

EPA has issued detailed guidance that sets out its preliminary

views on the implementation of the air quality planning requirements

applicable to areas that are not in attainment with the NAAQS. This

guidance is titled the ``General Preamble for the Implementation of

Title I of the Clean Air Act Amendments of 1990'' (or ``General

Preamble''). See 57 FR 13,498 (April 16, 1992) and 57 FR 18,070 (April

28, 1992). The General Preamble has been supplemented with further

guidance on Title I requirements. See 57 FR 31,477 (July 16, 1992)

(announcing the availability of draft guidance for lead nonattainment

areas and serious PM-10 nonattainment areas); 57 FR 55,621 (Nov. 25,

1992) (guidance on NOx RACT requirements in ozone nonattainment

areas). EPA will likely issue further supplements to the General

Preamble.

Title I also contains control requirements applicable to new (or

modified) major stationary sources. ``Major'' sources are those

emitting m

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