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

Federal Air Pollution Control Act

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. While some abatement conferences were held and some rudimentary control efforts were initiated as a result of those conferences, it was clear the 1963 act was not adequately addressing the air pollution problem.

Air Quality Act of 1967

Congress enacted the Air Quality Act of 1967 to address some of the perceived shortcomings from 1963. The 1967 act required the Secretary of the Department of Health, Education and Welfare (HEW) to define "atmospheric areas of the Nation on the basis of those conditions, including, but not limited to, climate, meteorology and topography, which affect the interchange and diffusion of pollutants in the atmosphere." The HEW was directed to designate, after consultation with appropriate state and local authorities, "air quality control regions based on jurisdictional boundaries, urban-industrial concentrations, and other factors including atmospheric areas necessary to provide adequate implementation of air quality standards." Jurisdictional boundary considerations included state, county, and municipal boundaries, but not tribal jurisdiction.

Once air quality control regions were defined, the HEW was to "develop and issue to the States such criteria of air quality as in his judgment may be requisite for protection of public health and welfare." States could then elect to "adopt, after public hearings, ambient air quality standards applicable to any designated air quality control region or portions thereof within such State" so long as the standards were "consistent with" the HEW criteria. The states could also establish "implementation plans" to achieve the federally approved ambient air quality standards. Neither the 1963 nor the 1967 Act mentioned Indian tribes or reservations and neither provided for direct participation by tribal governments in air quality regulation. As a consequence, air quality standards within reservation boundaries were controlled, directly or indirectly, by states and air pollution sources on Indian lands were regulated, if at all, by the states.

Clean Air Act Amendment of 1970

The 1970 amendments to the Clean Air Act restructured air pollution regulation. The 1970 amendments continued to look to state and local governments as the primary regulatory bodies, but provided the newly created United States Environmental Protection Agency with authority to establish minimum air quality and regulatory goals that the states and local governments were required to achieve. Specifically, Congress ordered the EPA to establish primary and secondary national ambient air quality standards (NAAQS) to protect public health and welfare. Each state was then to "have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State."

Congress also mandated that the EPA promulgate a federal implementation plan for any area that did not meet specified attainment deadlines. The amendments also strengthened the federal role by adding a new section providing federal authority to enforce state implementation plan provisions. Once again, however, the 1970 amendments did not mention Indian tribes or provide a role for tribal governments in implementing the federal air quality management scheme.

Section 110 of the 1970 amendments, governing state implementation plans (SIPs), became and has remained a key regulatory section in the CAA. Section 110 implements the CAA's underlying philosophy that "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments ... ." This version of the Act mandated that within nine months of promulgation of primary or secondary NAAQS, each State "shall ... adopt and submit to the Administrator ... a plan which provides for implementation, maintenance, and enforcement" of each such primary and secondary standard "in each air quality control region (or portion thereof) within such State.

SIPs are also the vehicle for states to implement source-specific federally mandated control programs including "new source review (NSR) under federal NSPS; review and authorization of construction and operation of major new sources of sulphur dioxide, nitrogen oxides, or particulates under PSD provisions; issuance of permits for major air pollution sources in non-attainment areas; and enforcement of National Emission Standards for Hazardous Air Pollutants (NESHAP) under Section 112 of the Act." The SIP is the primary regulatory mechanism for implementing federal controls on air pollution sources. Significantly, the 1970 amendments did not provide for Indian tribes or tribal governments to adopt implementation plans.

Clean Air Act Amendment of 1977

In the 1977 amendments to the Act, Congress took its first step toward involving Indian tribes in the management of federal air quality standards by authorizing "the appropriate Indian governing body" to redesignate "[l]ands within the exterior boundaries" of their reservations for purposes of the Prevention of Significant Deterioration program (PSD). This statutory amendment countenanced EPA's then-existing practice of permitting tribes to redesignate lands within their reservations.

The PSD program sought to insure that areas that had better air quality than required by the NAAQS would not experience a decline in quality to the level of the NAAQS. Areas of the country that had air quality that satisfied a standard were designated as "attainment" areas. Attainment areas were further classified into three categories. For each of those categories, the PSD program established the maximum amount of allowable increases in ambient pollution levels for specified criteria pollutants. Those maximum allowable increases varied with each class designation and each SIP was to contain steps to ensure that the "maximum allowable increases over baseline concentrations of and maximum allowable concentrations of" the specified pollutants were not exceeded.

The Congressional authorization for tribes to redesignate lands within reservation boundaries under the PSD program initially appeared to be a significant step towards recognizing tribes as a governing body with a role in implementing the federal air quality regime. For example, the Norther Cheyenne Tribe redesignated its reservation in Montana from Class II to Class I . Based on that redesignation, the EPA denied a PSD permit Montana Power Company was seeking to construct two 760 mega-watt, coal-fired power plants approximately 13 miles outside the boundaries of the Northern Cheyenne reservation.

Ultimately, however, the ability to redesignate lands within reservation boundaries did not significantly strengthen tribal authority over air quality. The 1977 amendments did not authorize tribes to take any enforcement action under the PSD program. Rather, tribes had to petition the EPA to resolve disputes between states and tribes arising when either a redesignation or the issuance of a permit for construction of a new major emitting facility would cause a change in air quality in excess of that allowed by the affected state or tribe under the PSD program. The PSD program also applied only to a limited class of pollution sources, thus limiting its usefulness as a regulatory tool. Until the 1990 amendments to the Act, tribal authority to implement federal air quality programs remained limited to the power to redesignate lands within the exterior boundaries of their reservations.

Clean Air Act Amendment of 1990

In the 1990 amendments to the Act, Congress added two provisions broadly authorizing tribes to be treated like states under the Act. First, Congress added Section 301(d) (the "Treatment as States Provision") which authorizes the Administrator of the EPA "to treat Indian tribes as States ... ." That section establishes the minimum eligibility criteria for tribes to be treated as states. Tribes shall be accorded such treatment only if:

• the Indian tribe has a governing body carrying out substantial governmental duties and powers;
• the functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction; and
• the Indian tribe is reasonably expected to be capable, in the judgment of the Administrator, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations.

However, the Act stipulated the EPA need not treat tribes identically to states for every provision of the Act. "In 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."

Tribal authority was also affected through the addition of a section governing tribal implementation plans (TIPs). If an Indian tribe submits an implementation plan to the Administrator pursuant to section 7601(d) of this title, the plan shall be reviewed in accordance with the provisions for review set forth in the section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601(d)(2).

When such plan becomes effective in accordance with the regulations promulgated under section 7601(d) of this title, the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation. Though the TIP "shall be reviewed in accordance with the provisions for review set forth ... for State plans," the amendment also provides that the "Administrator may promulgate regulations which establish the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof."

The 1990 amendments directed the EPA Administrator to "promulgate regulations within 18 months after November 15, 1990, specifying those provisions of this chapter for which it is appropriate to treat Indian tribes as States." The amendments further provided that if "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."

On August 25, 1994, EPA issued proposed rules to implement the Treatment as States provision of the Act. After comments and revisions, the first version of this rule became effective on March 16, 1998.

"Treatment As States" Rule: Issues and Problems

The TAS rule does come with its share of associated issues and problems, including the procedures for reviewing and approving tribal applications for eligibility determinations and program delegation, the treatment of tribal jurisdiction over non-Indian owned fee lands within reservation boundaries, issues stemming from permitting the extension of tribal jurisdiction over off-reservation lands are examined, issues related to the potential abrogation of pre-existing agreements and treaties governing air regulation is set forth. Finally, two related issues, the exemption from the citizen suit provision and the waiver of the requirement that Title V permitting actions be subject to judicial review, are evaluated.

Procedures for Review and Approval of Tribal Requests for Eligibility Determinations

The TAS Rule's procedures for reviewing and approving tribal applications for eligibility determinations and program delegation raise a number of practical and legal issues, not the least of which is the limitation of the right to notice and comment to only "appropriate governmental entities." To obtain delegation of CAA program authority, a tribe must submit an application for determination of eligibility to the EPA. That application must include, among other things, a descriptive statement of the Indian tribe's authority to regulate air quality.

For applications covering areas within the exterior boundaries of the applicant's reservation the statement must identify with clarity and precision the exterior boundaries of the reservation including, for example, a map and a legal description of the area. For tribal applications covering areas outside the boundaries of a reservation the statement should include:

• a map or legal description of the area over which the application asserts authority; and
• a statement by the applicant's legal counsel (or equivalent official) that describes the basis for the tribe's assertion of authority (including the nature or subject matter of the asserted regulatory authority) which may include a copy of documents such as tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions that support the tribe's assertion of authority.

Within 30 days of receipt of an Indian tribe's initial complete application for an eligibility determination, the EPA Regional Administrator must notify all appropriate governmental entities. For tribal applications addressing air resources within the exterior boundaries of a reservation, the EPA must specify the geographic boundaries of the reservation. For tribal applications addressing non-reservation areas, EPA's notification must include the substance and bases of the tribe's jurisdictional assertions.

After notification, all appropriate government entities shall then have 30 days to "provide written comments to EPA's Regional Administrator regarding any dispute concerning the boundary of the reservation. Where a tribe has asserted jurisdiction over non-reservation areas, appropriate governmental entities may request a single 30-day extension to the general 30-day comment period." Following the close of the comment period, the EPA Regional Administrator "shall decide the jurisdictional scope of the tribe's program." That determination "concerning the boundaries of a reservation or tribal jurisdiction over non-reservation areas shall apply to all future Clean Air Act applications from that tribe or tribal consortium and no further notice to governmental entities ... shall be provided, unless the application presents different jurisdictional issues or significant new factual or legal information relevant to jurisdiction to the EPA Regional Administrator."

Issues Associated with the Notice and Comment Procedures on Tribal Program Applications

The notice and comment provisions of the TAS Rule raise many procedural and substantive legal issues. First, the TAS Rule provides that only "appropriate governmental entities" will receive notice of, or have the right to comment on, the determination of the jurisdictional scope of a tribal program. The TAS Rule itself does not define the phrase "appropriate governmental entities."

In the preamble to the TAS Rule , the EPA states it will seek "to make its notification sufficiently prominent to inform local governmental entities, industry and the general public, and will consider relevant factual information from these sources as well, provided ... they are submitted through the identified 'appropriate governmental entity.'" It is unclear how the EPA proposes to make its notification "sufficiently prominent" so the regulated community and the general public will learn of the proposed jurisdictional scope of a tribal program. It is also unclear how "industry and the general public" will be notified which "governmental entity" they may submit comments to about the tribal application. Presumably, the EPA would give notice to the state or local air quality control agency that claims jurisdiction over the same area identified in a tribe's application for eligibility determination - however, it is advisable for all parties to maintain regular contact upon submission of an application.

Limiting notice and commenting rights to "appropriate governmental entities" may effectively exclude the regulated community and other stakeholders from the opportunity to comment on the jurisdictional scope of a tribal program. The EPA justifies this limitation by asserting that jurisdictional determinations are "informal adjudications" and not rule-making. According to the EPA, "[g]iven that there is no particular process specified under EPA governing statutes for TAS eligibility determinations, they are in the nature of informal adjudications for [Administrative Procedure Act] purposes" and the EPA therefore "does not believe there is a legal requirement for any additional process than what the Agency already provides." The EPA apparently bases its argument that jurisdictional determinations amount to informal adjudications on the notion that such determinations impact only the state government and the tribal government which claim jurisdiction over the same area. In the preamble to the TAS Rule, the EPA declares that "to the extent genuine reservation boundary or non-reservation jurisdictional disputes exist, the assertion of such are an inherently government-to-government process."

A good argument can be made that jurisdictional determinations are not simply a government-to-government issue but are instead a decision of general applicability and future effect impacting all people and all sources within the defined geographic area and thus should be viewed as rule-making under the Administrative Procedures Act requiring full public notice and comment. Under the Administrative Procedures Act ("APA"), an adjudication is defined as an "agency process for the formulation of an order." Conversely, a rule is defined as an "agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency ... ."

The choice of whether to proceed through rule-making or adjudication lies primarily in the informed discretion of the administrative agency in the absence of express congressional directive. Under informal adjudication, interested parties are not entitled to notice and comment. However, an agency cannot avoid the requirement of notice-and-comment rule-making simply by characterizing its decision as an adjudication. To distinguish between rule-making and adjudication, courts have identified two principal characteristics. "First, adjudications resolve disputes among specific individuals in specific cases, whereas rule-making affects the rights of broad classes of unspecified individuals. ... Second, because adjudications involve concrete disputes, they have an immediate effect on specific individuals (those involved in the dispute).

Rule-making, in contrast, is prospective, and has a definitive effect on individuals only after the rule subsequently is applied." As a general matter, "agencies employ rule-making procedures to resolve broad policy questions affecting many parties and turning on issues of 'legislative fact.' Adjudicatory hearing procedures are used in individual cases where the outcome is dependent on the resolution of particular 'adjudicative facts.'"

A further question under the TAS Rule is whether the limitation of notice and comment to "appropriate governmental entities" will also be applied to EPA review of tribal application for program approval. The TAS Rule recites that "a tribal application containing a Clean Air Act program submittal will be reviewed by the EPA in accordance with applicable statutory and regulatory criteria in a manner similar to the way the EPA would review a similar state submittal."

This language is problematic. On one hand, it could be read to mean that the EPA will use both the same standards and the same procedures. On the other hand, it could be read to mean that, in reviewing a tribal program application, the EPA will apply the same standards, but not the same procedures, as would be used to review a similar state application. If it is this latter interpretation the EPA had in mind, that fails to comport with the requirements of the CAA.

The TAS Rule's procedures for reviewing and approving tribal eligibility determinations and program applications thus present practical and legal issues concerning the right to notice and opportunity to comment for industry and the general public.

Jurisdiction Over Non-Indian Fee Lands Within Reservation Boundaries

Through the TAS Rule, the EPA has announced a near irrebuttable presumption that Tribes will have jurisdiction over non-Indian owned fee lands within reservation boundaries. A summary of the EPA's rationale for such a presumption is provided below.

TAS Rule's Statement on Tribal Jurisdiction Within Reservation Boundaries

In the final TAS Rule, the EPA adopts a "territorial approach" permitting qualified tribes to assume jurisdiction to "address conduct relating to air quality on all lands, including non-Indian-owned fee lands, within the exterior boundaries of a reservation." EPA bases this approach on the language of the CAA, which provides that "it is appropriate to treat Indian tribes as States ... only if ... the functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction ... ." EPA "believes that this statutory provision, viewed within the overall framework of the CAA, establishes 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."

The TAS Rule defines a "reservation" as "all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. "While it is not clear from that regulatory definition, the preamble to the final treatment as states rule articulates EPA's "position that the term 'reservation' in CAA section 301(d)(2)(B) should be interpreted in light of Supreme Court case law, including Oklahoma Tax Comm'n, in which the Supreme Court held that a 'reservation,' in addition to the common understanding of the term, also includes trust lands that have been validly set apart for the use of a tribe even though the land has not been formally designated as a reservation." The preamble declares that "EPA will consider lands held in fee by nonmembers within a Pueblo to be part of a 'reservation' ... [and] will consider on a case-by-case basis whether other types of lands other than Pueblos and tribal trust lands may be considered 'reservations' under federal Indian law even though they are not formally designated as such."

The EPA believes that its territorial approach to regulation of stationary sources within reservation boundaries also has a practical basis. According to the EPA, the adoption of the territorial approach "will have the effect of minimizing jurisdictional entanglements and checkerboarding within reservations."

Issues Concerning the TAS Rule's Territorial Approach to On-Reservation Jurisdiction

The TAS Rule's territorial approach to on-reservation jurisdiction means that sources located on non-Indian owned fee lands within reservation boundaries could be subject to air quality regulation by both a tribe and the EPA. Under the TAS Rule, tribes can elect to seek program delegation for some CAA programs but not others, and the EPA will continue to administer those programs not delegated to a tribe. Moreover, EPA has declined to provide for grandfathering of existing sources located on fee lands which had historically been regulated by state or local air pollution control agencies. Instead, those sources became subject to EPA regulatory authority unless the state or local air pollution control agency that had been regulating the source had been expressly approved by EPA to implement CAA programs in Indian country. Sources located on fee lands within reservation boundaries thus will need to carefully evaluate how the change from state to EPA regulatory control will affect the source's record-keeping or reporting requirements and other applicable air emission conditions.

EPA's "territorial approach" to on-reservation jurisdiction likely will be subject to challenge as part of the pending appeal from the TAS Rule. The "territorial approach" may be subject to attack as being inconsistent with the legislative history of the 1990 Amendments to the CAA and as inconsistent with other provisions of the Act. The legislative history of the 1990 Amendments reflects that Congress sought to authorize CAA delegations to tribes in the same manner as it had done under the Clean Water Act and the Safe Drinking Water Act. The Senate Report accompanying the 1990 Amendments states that tribes may be treated as States only if:

• the tribe is recognized by the Secretary of Interior and has a governing body carrying out substantial government duties;
• the functions under the Act to be carried out by the tribe are within the tribal government's jurisdiction; and
• the tribe is, in the Administrator's judgment, capable of carrying out the functions it is authorized to exercise.

That Senate Report reflects that Congress intended the CAA treatment as states provision to be implemented consistent with the implementation of the treatment as states provisions in the Clean Water Act and the Safe Drinking Water Act, which require a demonstration of inherent tribal authority as a prerequisite to receiving treatment as states authority. The EPA adhered to its "statutory responsibility not to delegate enforcement authority to a Tribe unless the Tribal government possesses the necessary regulatory authority."

The presumption of tribal jurisdiction over fee lands within reservation boundaries contained in the TAS Rule, thus, appears to be at odds with the Congressional intent that the treatment as states provision of the CAA be similar to the treatment as states schemes under the CWA and SDWA. The TAS Rule also conflicts with the EPA's own policy statements which acknowledge that the EPA will authorize tribal administration of regulatory programs "only where that government can demonstrate adequate jurisdiction over pollution sources throughout the reservation."

The EPA's interpretation of section 7601(d) as a grant of "territorial jurisdiction" is also at odds with the requirements of Section 7410 of the Act. Under section 7410(a), a tribal implementation plan, which is the fundamental tool for establishing, maintaining, and enforcing air quality standards, may only become effective after a particularized inquiry into the scope of the tribe's legal authority to regulate all lands within the boundaries of the reservation and after the tribe has demonstrated that it has pre-existing inherent authority to regulate non-Indian activities on fee lands. Section 7410(o) directs that a TIP "shall be reviewed in accordance with the provisions for review set forth in the section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601(d)(2) ... ."

Significantly, Congress invited the EPA to adopt regulations governing "the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof." The EPA, however, elected not to promulgate such regulations, leaving TIPs subject to the existing statutory and regulatory guidelines contained in CAA section 7410 and 40 C.F.R. Part 51.

Those statutory and regulatory guidelines demonstrate that tribes accorded treatment as states should be required to demonstrate inherent authority to regulate fee lands as a precursor to delegation of regulatory authority over such lands. Section 7410 mandates that "each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within three (3) years ... after the promulgation of a national primary ambient air quality standard ... a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State." That section further directs that each implementation plan shall provide necessary assurances that the State will have adequate personnel, funding, and authority under the law to carry out such implementation plan.

Under section 7410 each plan must also show that the State has legal authority to carry out the plan, including authority to "enforce applicable laws, regulations, and standards, and seek injunctive relief." The requirement that the implementation plan make a concrete showing of the State's legal authority reflects that tribes must make a showing that they have inherent legal authority to regulate activities on fee lands within reservation boundaries as part of the submission of a TIP. Further, the requirement that a "State" demonstrate that it "is not prohibited by any provision of federal law from carrying out" the terms of its plan, reinforces that tribes must make a showing that federal Indian law does not prevent the tribe from carrying out the plan on fee lands.

Thus, absent a demonstration that the tribe has inherent authority to regulate activities on fee lands, those lands should not be included within a TIP, and thus, should not be subject to tribal regulatory jurisdiction.

Tribal Jurisdiction Over Non-Reservation Areas

The TAS Rule provides that eligible tribes may develop and implement air quality programs on non-reservation "Indian country" if the area is determined to be within the tribe's jurisdiction. As with sources located on non-Indian owned fee lands within reservation boundaries, sources located on lands within "Indian country" could now be subject to air quality regulation by both a tribe and the EPA. A description of the EPA's approach to jurisdiction in off-reservation "Indian country" is set forth below.

EPA Position Concerning Off-Reservation Areas

The final TAS rule also authorizes eligible tribes to "develop and implement tribal air quality programs in non-reservation areas that are determined to be within the tribe's jurisdiction." According to the EPA, such authorization is consistent with the provisions of CAA section 301(d)(2)(B) which 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 ... ." In the preamble to the final rule, the EPA explains that:

The phrase "other areas within the tribe's jurisdiction" contained in CAA section 301(d)(2)(B) ... is meant to include all non-reservation areas over which a tribe can demonstrate authority, generally including all non-reservation areas of Indian country ... . It is EPA's interpretation that Congress has not delegated authority to otherwise eligible tribes to implement CAA programs over non-reservation areas as it has done for reservation areas. Rather, a tribe seeking to implement a CAA program over non-reservation areas may do so only if it has authority over such areas under general principles of federal Indian law.

In determining which non-reservation areas may be subject to tribal jurisdiction, the EPA has indicated that it will rely upon the definition of "Indian country" contained in 18 U.S.C. section 1151. The EPA acknowledged there may be controversy over whether a particular non-reservation area is within a tribe's jurisdiction. However, the EPA believes that these questions should be addressed on a case-by-case basis in the context of particular tribal applications."

In adopting its approach to non-reservation areas, the EPA apparently rejected the risks of "jurisdictional entanglements and checkerboarding" which it had relied upon to support a territorial approach to jurisdiction within reservation boundaries. The EPA acknowledged that "there may be cases where the agency may approve a tribe's application to implement a CAA program over a relatively small land area" and that "approval of a tribal program over a small area that is surrounded by land covered by a state CAA program could lead to less uniform regulation." It explained that while it "recognizes that its approval of tribal programs over small areas may result in less uniform regulation in some cases, the Agency believes that the approach to tribal jurisdiction outlined in this Tribal Authority Rule best reconciles federal Indian and environmental policies."

Issues Concerning Off-Reservation Jurisdiction

The EPA's position concerning off-reservation jurisdiction raises a number of practical and legal problems. First, the agency's interpretation of the scope of the delegation of authority is hard to square with the language of the CAA. Section 7410(o), which addresses the submission and approval of TIPs, plainly does not authorize tribal jurisdiction beyond reservation boundaries. Under section 7410(o), once a TIP becomes effective, it "shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation." Other provisions of the Act similarly limit tribal jurisdiction to land within the exterior boundaries of a reservation.

A further practical problem with EPA's off-reservation approach is the "jurisdictional entanglements and checkerboarding" of jurisdictional authority it creates. Ironically, the EPA justified its "territorial approach" to on-reservation jurisdiction by asserting that such an approach "will have the effect of minimizing jurisdictional entanglements and checkerboarding within reservations." In asserting tribal jurisdiction over off-reservation areas, the EPA brushed aside such concerns noting that, while approval of tribal programs "may result in less uniform regulation in some cases, the Agency believes that the approach . . . best reconciles federal Indian and environmental policies."

Approval of off-reservation programs, however, can have significant jurisdictional consequences. For example, if the EPA were to authorize a tribe to issue a Title V permit for an source located on off-reservation, Indian country lands, then the source likely would have to meet the requirements of the applicable federal implementation plan, not the TIP for the authorized tribe.

Further potential issues concerning off-reservation jurisdiction include review of Title V applications by "affected States ." Under Title V, "affected States" are defined as contiguous states "whose air quality may be affected" or states "within fifty miles of the source." Each affected state must receive a copy of each permit application and application for modification or renewal. Such states must then be given an opportunity to "submit written recommendations respecting the issuance of the permit and its terms and conditions. If any part of those recommendations are not accepted by the permitting authority, such authority shall notify the State submitting the recommendations and the [EPA] Administrator in writing of its failure to accept those recommendations and the reasons therefor."

These obligations would apply to any eligible tribe regardless whether the tribe has an approved Title V permit program. Given the amorphous nature of "Indian country," it will now be more difficult for state permitting authorities to determine whether a source is within fifty miles of an area over which a tribe has jurisdiction.

The EPA's approach to jurisdiction over off-reservation Indian country also may have an impact on PSD permitting. It has indicated that it interprets the United States Supreme Court's decision in Oklahoma Tax Commission as expanding the definition of the term "reservation" to include "trust lands that have been validly set apart for the use of a tribe even though the land has not been formally designated as a reservation." The EPA has further declared its willingness to consider whether other types of land may be considered a "reservation" even though not formally designated as such. It therefore may be willing to accept tribal redesignations of areas in off-reservation Indian country that it has determined are subject to the tribe's CAA jurisdiction, notwithstanding the provision of the Act limiting tribal power to redesignate to "lands within the exterior boundaries of reservations ... ."

Abrogation of Pre-Existing Treaties and Binding Agreements

A further issue arising from the TAS Rule is the question whether that rule supersedes or abrogates pre-existing treaties or agreements. In the preamble to the TAS Rule, EPA believes the CAA represents a clear delegation of authority to eligible tribes over reservation resources and that delegation represents a more recent expression of Congressional intent and will generally supersede other federal statutes. The EPA asserts that the CAA generally would supersede pre-existing treaties or binding agreements that may limit the scope of tribal authority over reservations.

This assertion raises a concern for a number of businesses engaged in activities in Indian country. In negotiating leases or other contracts to operate on reservations, some businesses and tribes have negotiated provisions that declare the Tribe will not exercise, or will limit the extent to which it exercises, regulatory authority over the business and its facilities on tribal lands. The language of the TAS Rule's preamble opens the door to possible abrogation of such agreements.

Exemption of Tribes From Citizen Suit Provision

In the TAS Rule, EPA included the CAA citizen suit provision among those it determined would be "inappropriate or administratively infeasible" to apply to tribes.(134) Though the EPA exempted tribes from citizen suits, it has not promulgated regulations "by which the Administrator will directly administer" the citizen suit provision as provided by § 7601(d)(4) of the Act.

The CAA Citizen Suit Provision

The CAA citizen suit provision states that any person may commence a civil action on his own behalf:

• against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation;
• against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator; or
• against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to non-attainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit.

Under the 1990 amendments to the CAA, citizen suits may be brought both to obtain civil penalties and injunctive relief.

EPA's Rationale for Exempting Tribes from the Citizen Suit Provision

When it initially proposed the TAS Rule in August, 1994, the EPA had expressed its intention that the citizen suit provisions contained in section 7604 should apply to tribes in the same manner in which they apply to states. In the final TAS Rule, however, the EPA declined "to announce a position, in the context of the rule-making required under section 301(d) of the Act, regarding whether tribes are subject to the citizen suit provision contained in section 304 ... ." As a consequence, section 7604 of the Act is included among the list of CAA provisions which, for purposes of section 7601(d), the EPA has concluded it is not appropriate to treat Indian tribes as states.

The EPA has not adopted regulations or other means by which the EPA will directly administer the citizen suit provision as it relates to Indian tribes. The EPA's decision to exempt Indian tribes from the Act's citizen suit provision is contrary to what they acknowledge is "the general principle underlying all environmental citizen suit provisions, namely that actors who accept responsibility for regulating health based standards and who voluntarily commit themselves to undertake control programs in furtherance of such goals, ought to be accountable to the citizens those programs are designed to benefit."

The upshot of the exemption of tribes from the Act's citizen suit provision is that tribal air pollution control agencies will not be subject to citizen suits and tribally owned air pollution sources also will not be subject to such suits. Tribal air quality control programs and tribally owned facilities, however, remain subject to direct federal superintendence.

Exemption of Tribal Title V Programs From "Judicial Review"

The EPA also determined that it is inappropriate or administratively infeasible to treat tribes as states under the requirements of Title V of the Act calling for "judicial review in state court of permitting decisions. In doing so, the EPA did not "provide, by regulation, other means by which the Administrator will directly administer" the judicial review provisions "so as to achieve the appropriate purpose." A review of the judicial review requirements under Title V and of the issues flowing from the decision to exempt tribes from those requirements is set forth in the following sections.

Title V's Judicial Review Requirements

The Act establishes certain minimum elements that a Title V permit program to be administered by a state must contain. Among those elements are:

• adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications;
• public notice;
• offering an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions; and
• including an opportunity for judicial review in state court of the final permit action by the applicant, any person who participated in the public comment process, and any other person who could obtain judicial review of that action under applicable law.

To be approvable, a state's proposed Title V program must also include adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application will be treated as a final permit action solely for purposes of obtaining judicial review in state court of an action brought to require that action be taken by the permitting authority on such application without additional delay.

Any proposed state Title V permitting program cannot be approved by the EPA if such provisions are not included in their permit program.

EPA's Exemption of Tribal Title V Programs From Judicial Review

The preamble to the final TAS Rule explains that the EPA recognizes the importance of providing citizens the ability to hold accountable those responsible for regulating air resources. Nonetheless, it also acknowledges that applying the judicial review provisions of Title V to tribes through this rule would raise unique issues regarding federal Indian policy and law. Rather than apply the judicial review requirements, then, the EPA will consider alternative options, developed and proposed by a tribe in the context of a tribal CAA Title V program submittal.

This would not require tribes to waive their sovereign immunity to judicial review but, at the same time, would provide for an avenue for appeal of tribal government action or inaction to an independent review body and for injunctive-type relief to which the Tribe would agree to be bound. The EPA states that it will accept alternatives to judicial review if it believes that the tribe has provided for adequate citizen recourse consistent with the requirement in CAA section 502(b)(6) that there will be review of final permit actions. The TAS Rule does not provide any clear guidance on the alternatives the EPA would accept. Instead, it promises that the EPA will develop guidance in the future on acceptable alternatives to judicial review.

Issues Arising From the Exemption of Tribal Title V Programs From Judicial Review

The EPA based its decision to exempt tribes from the Title V judicial review requirements on the notion that the Indian Civil Rights Act will provide adequate procedural and substantive safeguards to those subject to a tribal permitting program. The EPA stated it is aware that tribal governments are not subject to the requirements of the Bill of Rights and the Fourteenth Amendment of the U.S. Constitution, and that review of tribal court decisions in federal court may be limited. However, the EPA notes that the Indian Civil Rights Act requires tribes to provide several protections similar to those contained in the Bill of Rights and the Fourteenth Amendment, including due process of law, equal protection of the laws, and the right not to have property taken without just compensation.

EPA's reliance on the Indian Civil Rights Act as providing certain procedural and substantive safeguards may be misplaced. First, the ICRA does not waive tribal sovereign immunity with respect to the rights enumerated in that statute. Generally speaking, the ICRA does not permit direct access to federal court to enforce the rights enumerated in the act. The only device federal courts can use to directly enforce the rights enumerated under the ICRA is a writ of habeas corpus. Apart from one extremely narrow exception, then, parties subject to a tribal Title V permit program may not have access to federal court.

The exception authorizing direct federal court action to enforce rights under the ICRA was created in Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes , 623 F.2d 682 (10th Cir. 1980).

In Dry Creek Lodge, non-Indians who owned fee lands within reservation boundaries sought to open a guest lodge. The superintendent of the reservation advised the non-Indian property owners "that projects of that type were encouraged to provide employment. He also stated that there would be no access problem." Id. at 684. The non-Indian owners thus procured an SBA loan and constructed the lodge facilities. The day after the lodge was opened for business, however, the tribes closed the only access road to the lodge. That road had been used as access to the non-Indian property for a period of at least 80 years. Id. The non-Indian property owners thereafter "sought a remedy with the tribal court, but were refused access to it. The judge indicated he could not incur the displeasure of the Council and that consent of the Council would be needed." Id. The non-Indian property owners thereafter filed suit in state court for damages. That case was then removed to federal court.

While the case was pending in federal court, the Supreme Court issued its decision in Santa Clara. Relying upon the Santa Clara decision, the trial court dismissed the non-Indian owners' action on the grounds of lack of jurisdiction. On appeal, the Tenth Circuit reversed. In doing so, the Tenth Circuit distinguished Santa Clara on the grounds that:

• the non-Indian property owners had no remedy available to them within the tribal system;
• their claim was not a purely internal tribal matter; and
• a non-Indian claimant was involved. Id. at 685.

The Tenth Circuit thus concluded that federal courts could hear the non-Indian property owners' ICRA claim to avoid a situation in which they would "have constitutional rights but have no remedy." Id. The Tenth Circuit has since narrowed the holding of Dry Creek Lodge to cases of "absolute necessity" where the claimant "must have actually sought a tribal remedy, not merely have alleged its futility." Other circuits, however, have rejected the Dry Creek Lodge rationale. As a practical matter, then, the Dry Creek Lodge exception affords only the slimmest hope for a party to obtain direct access to federal court.

A further problem with the EPA's reliance on the ICRA is that the ICRA does not, by itself, provide a basis for state court jurisdiction over tribal entities, and state courts do not have such jurisdiction absent a clear waiver of tribal immunity from suit. In the absence of federal or state court jurisdiction, then, tribal courts would provide the only available forum to vindicate rights created by the ICRA. Most tribal courts, however, have refused to hear claims under the ICRA. Even if a tribal court were to hear ICRA claims, review beyond the tribal court system may not be available.

The decision to except tribes from the judicial review requirements of Title V thus poses a potentially significant problem for those who will be subject to a tribal Title V program. The EPA will now identify on a case-by-case basis the appropriate procedure for recourse or review of permitting decisions. The problems with TAS Rule's procedures for the review and approval of tribal eligibility determinations and for program applications potentially compound because the regulated community may not receive notice of or an opportunity to comment on the proposed substitute for judicial review. To the extent that the regulated community does receive notice of a tribal application for delegation of Title V program authority, the regulated community will need to take an active role in commenting on the proposed substitute for judicial review.

Federal Implementation of Title V Programs Within Indian Country

Slightly more than one year after issuing the TAS Rule, EPA issued its final rule setting forth the EPA's approach for issuing operating permits to stationary sources located in "Indian country." In the final TAS Rule, the EPA announced its determination that tribes should not be treated identically to states for purposes of the deadlines for submission of operating permit programs and the mandatory imposition of sanctions for failure to submit an operating permit program to the EPA for approval.

In light of the TAS Rule's position that tribes could obtain jurisdiction over off-reservation areas within Indian country, the waiver of the Title V program deadlines arguably left a gap in Title V coverage within Indian country. To address the potential gap in coverage, the EPA announced it will administer a federal operating permit program within Indian country even where a tribe has not established its authority to regulate air resources within the same area. To assure there are no gaps in Title V coverage for sources in Indian country, the EPA will also administer the Part 71 program within areas for which the EPA believes the Indian country status is in question, until they explicitly approve or extend approval of a State or Tribal program to cover the area.

The Final Part 71 Rule

The final Part 71 rule mandates that, within one year from the effective date of the rule or some earlier deadline set by the EPA regional offices, Title V sources in Indian country must submit an application for a federal operating permit to the appropriate EPA Region. While the EPA will attempt to identify and notify sources it believes are located within Indian country, sources remain ultimately responsible for ascertaining whether they are subject to the Part 71 program. Sources within Indian country may be obligated to submit a Part 71 permit application even if they have already applied for or received an operating permit from a state operating permit program.

The Agency interprets past State Title V program approvals as not extending to Indian country unless the State made an explicit demonstration of jurisdiction over Indian country, and the EPA has also explicitly approved the State's Title V program for such area. Because States generally lack the authority to regulate air resources in Indian country, the EPA does not believe it would be appropriate for the agency to approve State CAA programs as covering Indian country where there was no explicit demonstration of adequate jurisdiction and where EPA has not explicitly indicated its intent to approve the State program for an area of Indian country. Except where expressly noted, when the EPA issued Part 70 approvals they did not find that the States whose programs were subject to the approvals had made an adequate showing of authority to justify approval of their programs in Indian country.

All sources subject to the program must pay permit fees, but EPA may reduce permit fees for sources in areas where the EPA believes the Indian country status is in question and that have also paid permit fees to a state or local agency that has attempted to apply its EPA-approved part 70 program in the area. The fees may be reduced up to an amount that equals the difference between the fee required under the regulations and the fee paid to a State or local permitting authority. The fee reduction will also cease if the area in which the source is located is later determined to be Indian country. The Part 71 Rule does not provide for a refund of any permit fees paid to the EPA if it is ultimately determined that the source is not located within Indian country.

Sources that are unsure whether they are covered by the Part 71 program may formally request the EPA to make an applicability determination. The Final Part 71 Rule does not establish any timetable governing a formal determination by the EPA. Moreover, filing a request for a determination does not stay the permit application deadline or alleviate the source of the responsibility to pay permitting fees. Failure to submit a timely permit application will also cause a source to lose its application shield. Furthermore, EPA applicability determinations made pursuant to the final rule are final agency actions for purposes of judicial review under the Act.

Issues Concerning the Final Part 71 Rule

The final Part 71 Rule raises a number of significant issues. First, there is the practical problem of determining whether a Title V source is located within Indian country. A review of pertinent land title records should reveal whether a source is located within the exterior boundaries of a recognized reservation, or on an allotment, the Indian title to which has not been extinguished. Determining whether a source is within a "dependent Indian community" will be more problematic. Second, if a source is within Indian country, determining the "applicable requirements" for that source may prove difficult. Each of these issues are discussed in turn below.

Divining "Indian Country" Status

In the final Part 71 Rule, the EPA again advances its same positions concerning tribal jurisdiction over fee lands within reservation boundaries and over lands outside reservation boundaries. The EPA believes in most cases, determining whether sources are located within Indian country will be straight-forward and non-controversial - that is, the EPA and sources will be able to easily determine whether a source is located within the exterior boundaries of a reservation or on land that a court or Department Of the Interior has said is Indian country (which could include dependent Indian communities).

These assessments can be verified through consultation with the DOI and will be informed by data and materials received from States, surveys, DOI and Tribes. In more complex factual cases, the EPA in appropriate cases will work with the DOI, Tribes, and stake holders (e.g., States, local governments, sources, and environmental organizations) to assess whether sources are located in Indian country or areas for which EPA believes the Indian country status is in question. After reviewing relevant materials, the Agency will send letters to sources the EPA believes are located in such areas or in Indian country, notifying them of the expectation they submit a federal Title V permit application within one year of the program's effective date.

Even if the EPA fails to notify some sources that are subject to the program, it is still the source's responsibility to ascertain whether it is subject to Part 71 and submit any required permit application. The preamble to the final Part 71 Rule stresses that any sources that are uncertain regarding Part 71 program applicability should submit timely permit applications since submission of a request for an applicability determination will not stay the effectiveness of Part 71 with respect to the source. In order to obtain the 'application shield' under CAA section 503(d) that allows a source to continue to operate after the effective date of the federal Title V program, timely submission of a federal permit application is required.

Determining whether a source is located on an "Indian allotment" the Indian title to which has not been extinguished will involve an examination of county, BLM, and BIA record repositories. Determining whether a source is located within the exterior boundaries of a reservation would involve a similar examination. It is worth noting, however, that the EPA will utilize an expansive definition of the term "reservation." It will also consider on a case-by-case basis whether other types of lands other than pueblos and tribal trust lands may be considered "reservations" under federal Indian law even though they are not formally designated as such ... The Agency does not believe that additional, more specific language should be added to the regulatory definition of "reservation," because the Agency's interpretation of the term "reservation" will depend on the particular status of the land in question and on the interpretation of relevant Supreme Court precedent.

Divining Applicable Requirements in "Indian Country"

Submitting a timely and complete Title V permit application may prove challenging. To have a permit application deemed complete, the application must provide all information required by the Part 71 regulations, which require a source identify in its application all "applicable requirements." "Applicable requirements " are defined as including "any standard or other requirement provided for in the applicable implementation plan approved or promulgated by the EPA through rule-making under Title I of the Act that implements the relevant requirements of the Act ... ."

As discussed earlier, EPA takes the position that a SIP is inapplicable within "Indian country" unless the EPA has explicitly determined that the state has jurisdiction in Indian country. There is a question whether a TIP could be adopted to cover off-reservation Indian country lands in light of the express statutory language in the Act. If that is the case, the EPA will have to develop a federal implementation plan to cover off-reservation Indian country.

Compounding the problem of determining applicable requirements are gaps in regulatory coverage within Indian country. The "applicable requirements" from a permit application a source would have otherwise submitted to a state regulatory agency asserting jurisdiction over Indian country thus may be different from (and in some cases more stringent than) the applicable requirements under a federal Part 71 permit application. Sources will need to carefully examine what requirements truly are "applicable" in the context of a Part 71 permit application.

Conclusion

The TAS Rule and the Final Part 71 Rule will complicate air permitting and air regulation in and around Indian country. Under the TAS Rule, the EPA will make determination about the jurisdictional scope of tribal programs without affording the regulated community or the general public the right to comment. Such jurisdictional determinations will affect not only sources located within the areas the EPA determines are subject to tribal jurisdiction but sources adjoining such areas. EPA's approach to tribal jurisdiction over off-reservation areas has the potential to create significant jurisdictional entanglements and regulatory conflicts. Potentially, EPA could determine that small pockets of land located many miles from a reservation and surrounded by lands subject to federal, state or local air quality programs, should be under tribal jurisdiction. Such a determination could impact Title V permitting or PSD permitting for sources that would not be impacted if tribal jurisdiction were limited to areas within reservation boundaries.

Because tribes can decide to seek delegation of some CAA programs and not others, sources located within Indian country face the potential of being subject to regulation by the tribe for some purposes and by the EPA for others. Depending upon which entity is administering a given program, a citizen suit may or may not be available. For Title V sources that are subject to a tribal regulatory program, judicial review of tribal permitting decisions will not be available.

For Title V sources located in off-reservation areas, the immediate challenge will be determining whether they are located in Indian country. While sources can ask the EPA to issue a formal determination whether they are located within Indian country, there is no requirement that EPA issue such a determination in a timely manner to permit them to comply with filing deadlines. Simply asking for a formal determination does not toll the filing deadline. When in doubt, then, such sources may find that the safest course is simply to timely file an application with the EPA, reserving their rights to dispute the Indian country issue.