Eligibility for Administering Clean Air Act Programs
Fact SheetIf a Tribe wants to administer a Clean Air Act Program, what is the Tribe required to do?
The Tribe must:
- Apply for and be approved by EPA as eligible for "treatment in the same manner as a State" (often abbreviated as TAS). This fact sheet covers the eligibility determination process, as outlined in the Tribal Authority Rule (TAR). The TAR lists the provisions of the Clean Air Act for which EPA may treat Tribes in the same manner as States.
- Develop and get approval from EPA of its Clean Air Act program. A Clean Air Act program could be as simple as administering a grant from EPA for the planning or development of an air program, or it could be full implementation of a more complicated regulatory program.
Federally recognized tribes only.
Who will review the application?
The Regional Administrator for the EPA region in which the tribe is located.
What is the benefit to the tribe of having this status?
Eligible Tribes may implement Clean Air Act Programs. They may:
- Qualify for an EPA air program grant (called a section 105 grant) that has a reduced "matching" requirement. For States, the match requirement is 40%. However, the TAR provides Tribes a 5% match in the first two years; the match may increase to 10% in subsequent years. In rare instances, EPA may waive the match requirement based on demonstrated financial hardship.
- Qualify to administer a Clean Air Act program that applies throughout the reservation, even to lands that are owned by non-Indians. A Tribal regulatory program approved under the Clean Air Act would also be enforceable (against pollution sources) by EPA and citizens, as well as by the Tribe.
- Qualify to be treated as an "affected State"under the operating permits program, i.e., receive notice and an opportunity to comment when neighboring States issue permits to facilities having the potential to impact tribal lands. (You can learn more about requesting "affected State" status in the Fact Sheet Requesting Treatment as an "Affected State" Under Title V of the Clean Air Act.)
To be eligible to administer a Clean Air Act program, a Tribe must meet the following criteria:
- be recognized by the U.S. Secretary of Interior;
- have a governing body that is currently carrying out substantial governmental duties and functions;
- exercise functions that pertain to the management and protection of air resources within the exterior boundaries of its reservation, or other areas within the Tribe's jurisdiction; and
- demonstrate capability to administer the Clean Air Act program that it seeks to administer, consistent with applicable regulations. This capacity demonstration will vary depending on the type of program it seeks to administer. For example, the capacity needed to demonstrate eligibility to be treated as an "affected State," is somewhat less strenuous than that needed to demonstrate eligibility for purposes of running a more expansive air quality management program.
A tribe must apply for an eligibility determination and submit a program application. All applications must be submitted to the Regional Administrator of the EPA Region in which the tribe is located.
What does an eligibility application contain?
The application must include the following information:
- A statement that the applicant is an Indian Tribe recognized by the Secretary of the Interior.
- A descriptive statement demonstrating that the applicant is currently carrying out substantial governmental duties and powers over a defined area. (Discussed in more detail below.)
- A descriptive statement of the Indian Tribe's authority to regulate air quality. (Discussed in more detail below.)
- A description of the capability of the Tribe to administer effectively any Clean Air Act program for which the Tribe is seeking approval. (Discussed in more detail below.) If EPA has already approved your Tribe's eligibility under another program (such as a water program), then your application can be streamlined. (Discussed in more detail below.)
The Tribe submits a narrative statement that:
- Describes the form of the Tribal government;
- Describes the types of government functions currently performed by the Tribal governing body such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and
- Identifies the source of the Tribal government's authority to carry out the governmental functions currently being performed
For applications covering areas within the exterior boundaries of the applicant's reservation, the statement should simply identify with clarity and precision the exterior boundaries of the reservation including, for example, a map and a legal description of the area. Tribes do not need to demonstrate their authority over sources located within a reservation.
For Tribal applications covering areas outside the boundaries of the applicant's reservation the statement should include:
- A map or legal description of the area over which the application asserts authority;
- A statement by the applicant's legal counsel (or equivalent official) which 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 which support the Tribe's assertion of authority.
The Tribe should submit a narrative description of its capability. The description could include some of the following:
- A description of the Tribe's previous management experience with Federal programs. For example, describe experience with programs and services authorized by the Indian Self-determination and Education Assistance Act, the Indian Mineral Development Act, or the Indian Sanitation Facility Construction Activity Act;
- A list of existing environmental or public health programs administered by the Tribal governing body and a copy of related Tribal laws, policies, and regulations;
- A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government;
- A description of the existing, or proposed, agency of the Tribe which will assume primary responsibility for administering a Clean Air Act program (including a description of the relationship between the existing or proposed agency and its regulated entities); or
- A description of the technical and administrative capabilities of the staff to administer and manage an effective air quality program or a plan which proposes how the Tribe will acquire administrative and technical expertise. The plan should address how the Tribe will obtain the funds to acquire the administrative and technical expertise.
Although the tribe must apply individually for eligibility and program approval, a Tribe that is a member of a Tribal consortium may rely on the expertise and resources of the consortium in demonstrating that it is reasonably expected to be capable of carrying out its functions. A Tribe relying on a consortium must provide reasonable assurances that the Tribe has responsibility for carrying out necessary functions in the event the consortium fails to.
If a Tribe has already established its eligibility under another EPA program, what must be contained in the application for eligibility under the Clean Air Act?
In this case, a Tribe would only need to reference the prior authorization from EPA and submit information not previously submitted. Generally, this means a Tribe would not need to submit further documentation of the first two eligibility criteria: Federal recognition and performance of substantial governmental duties. In some cases, however, the Tribe may need to submit additional information on its authority to regulate air resources within a geographic area. For more details on what needs to be submitted, contact your EPA Regional Office.
If a Tribe has already established its eligibility to administer a Clean Air Act program, does that mean the Tribe is eligible for all Clean Air Act programs?
No. For each separate Clean Air Act program that a Tribe seeks to administer, it must submit an eligibility application and must comply with the program approval criteria. For example, if a Tribe establishes its eligibility for the purpose of being an "affected State" under the operating permits program, the Tribe would not automatically be eligible to administer a grant with a reduced match under the section 105 program or administer a TIP. Although the Tribe may have been approved for "affected State" status, the Tribe would need to establish its eligibility (including capability) to administer a grant program or a permits program. Another alternative is that a Tribe can establish its eligibility for several Clean Air Act programs at the same time. For example, a Tribe could establish its eligibility and receive EPA approval to administer a TIP, apply for a 105 grant with a reduced match, and receive "affected State" status at the same time. This would involve demonstrating capability to administer each program and submitting an approvable TIP and 105 grant application. In this example, the capacity showing of the Tribe to administer the 105 grant and the TIP may be sufficient to establish capacity to be an "affected State" and no additional demonstration for the "affected State" program would be required.
How can a Tribe demonstrate that it has adequate criminal enforcement authority to enable it to administer a Clean Air Act program?
If the Tribe wants to administer a program that requires criminal enforcement, the Tribe must include referral procedures providing for the federal government to exercise criminal enforcement responsibility. This must take the form of a Memorandum of Agreement between the Tribe and EPA. For additional information on the criminal enforcement authority provisions, contact your EPA Regional Office.
Does a Tribe have to establish its eligibility before applying for Clean Air Act program approval?
No, the Tribal Authority Rule authorizes the EPA to review requests for eligibility and program approvals simultaneously.
What does a Tribe need to do to receive approval for a Clean Air Act program?
A request for program approval must contain all elements required by law and regulation. These requirements vary depending on the specific program being requested, e.g., operating permits programs or Tribal Implementation Plans. It is important to remember a Clean Air Act program could be as simple as administering a grant from EPA for the planning or development of an air program or could be full implementation of a more complicated regulatory program. Please contact your EPA Regional Office for more information on specific program requirements.
What happens after a Tribe applies for an eligibility determination and Clean Air Act program approval?
Within 30 days of receiving a complete application, the EPA will provide a notice to appropriate governmental entities adjacent to the reservation. While these governmental entities cannot comment on the authority of the Tribe to regulate air resources within the reservation, these entities will have 30 days to provide written comments regarding any dispute about the boundary of a reservation. Appropriate governmental entities are allowed up to 60 days to provide comment on the Tribe's assertion of jurisdiction over non-reservation areas.
EPA Regional Offices will process Tribal applications in a timely manner, and in general, they will be reviewed and processed similarly to the way EPA would handle a similar State submittal. EPA's decisions on eligibility and program approval are considered final Agency actions that can be appealed and reviewed by the Federal courts.
Where are the Federal regulations that discuss Tribal eligibility for administering Clean Air Act programs?
They are found in the Tribal Authority Rule which was published in the Federal Register on February 12, 1998 (63 FR 7254) and codified at 40 CFR parts 35 and 49. Copies may be obtained from the Internet, from many public libraries, or from EPA's Regional Offices and Headquarters.