The Clean Air Act “Treatment As States” Rule.

Air quality regulation in this country has long been characterized by varying degrees of shared responsibility and authority between the federal government and the states. Beginning in the 1950’s the federal government provided financial and technical assistance to states to study the problem of air pollution through the Air Pollution Control Act. In the 1960’s, Congress provided for the establishment of air quality criteria which the states could adopt. By 1970, Congress mandated the establishment of national air quality standards that each state would be primarily responsible for implementing, maintaining and enforcing. Since then, the federal government and the states have worked together to establish a carefully planned network of monitoring.

Allocation of Tribal Responsibility

This model of allocated responsibility for air quality management did not authorize Indian tribes to participate as governments in implementing, maintaining, or enforcing national air quality standards or other national air quality management programs. The 1990 amendments to the federal Clean Air Act, however, have changed that by authorizing the Administrator of the United States Environmental Protection Agency (EPA) to “treat Indian tribes as States” under the Act. The 1990 amendments established the minimum eligibility requirements for tribes to be treated as states for purposes of the Act and directed the EPA to “promulgate regulations … specifying those provisions of [the Act] for which it is appropriate to treat Indian tribes as States.” In response to that statutory directive, the EPA, on February 12, 1998, published its final rule (TAS Rule) setting forth “the CAA provisions for which it is appropriate to treat Indian tribes in the same manner as States,” establishing “the requirements that Indian tribes must meet if they choose to seek such treatment,” and providing “for awards of federal financial assistance to tribes to address air quality problems.”

The Title V operating permit program is among many CAA programs in which the EPA has found it appropriate to treat Indian tribes akin to States. Eligible tribes may obtain approval to implement and enforce an operating permit program “within the exterior boundaries of the [tribe’s] reservation or other areas within the tribe’s jurisdiction” to govern sources. The EPA will administer a federal operating permit program within areas in which the EPA believes Indian country status is in question (even if a state program is already asserting authority over that geographic area and even if a source has already applied for or received a permit from that state program) until EPA explicitly approves or extends approval of a state or tribal program to cover that area. This rule, together with the TAS Rule, will have a significant impact upon air permitting and regulation for sources in or near Indian country.

Evolution of the Treatment of Tribes Under the Federal Air Pollution Control Laws

Congress passed the first significant federal air pollution control act in 1963, but it neither mentioned Indian tribes nor authorized direct tribal government participation in air quality management. That act provided federal grants to state and local air pollution control agencies and established a cumbersome scheme for those agencies to abate air pollution which endangered “the health or welfare of persons in a State other than that in which the discharge” originated by means of an abatement conference

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