Distinguishing: Clean Air Act, EPA Rules, Regulations and Guidance

David Cole

U.S. EPA, OAQPS

Research Triangle Park, NC

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Introduction - A federal perspective

• Distinguish between– Clean Air Act– Rules and Regulations– Guidance– Sovereignty– Tribal Authority Rule (TAR)– Treatment as States (TAS)

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Clean Air Act, as AmendedOriginally

– Act July 14, 1955– 1963 Public Law 88-206, Dec. 17 1963 77 Stat. 392– 1965 Emissions Standards Act– Air Quality Act of 1967– Clean Air Amendments of 1970 “This Act may be cited as the “Clean Air Act”

(Dec. 31, 1970, 84 Stat. 1705)– Clean Air Act Amendments of 1977– Steel Industry Compliance Extension Act of 1981 – Clean Air Act Amendments of 1990– Border Smog Reduction Act of 1998– Chemical Safety Information, Site Security and Fuels Regulatory Relief Act

(1999)

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Titles of the Clean Air Act

• Title I—Programs and Activities• Title II—Mobile Sources• Title III— Emergency Powers and Tribal

Authority, Public Involvement• Title IV—Acid Deposition• Title V—Operating Permits• Title VI—Stratospheric Ozone

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Titles of the Clean Air Act

• Title I—Programs and Activities– e.g., SIP, NAAQS,

attainment/nonattainment, NSR, technology standards

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Title I

Congressional IntentCAA 101(b)• Protect national air resources to

promote public health and welfare• Conduct R&D to control air pollution• Provide technical and financial

assistance• Assist development and operation of

regional programs

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Title I

Cooperative Activities

CAA 102 • Encourage cooperative activities by

state and local governments• Encourage cooperative activities by all

federal agencies• Empower states to negotiate and enter

into agreements

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Title I

Grants

• CAA 103 – R&D, Training• CAA 105 – Planning and Programs

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Federal LawsCongressional authorization for:

–STATES• Required to adopt or develop rules and

regulations to implement CAA requirements

–TRIBES• Authority to implement severable elements of

CAA

• Authority first recognized in 1977 PSD amendments• 1990 amendments authorized tribal programs

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Federal Laws (cont.)

Congressional authorization for

― EPA • Develop federal rules and regulations

• Oversight role to ensure proper implementation of CAA requirements

and “level playing field”

• Fund eligible programs and activities

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Rules and Regulations

EPA (federal)– Develop proposed rule, solicit public

comment– Rule becomes regulation upon

promulgation– Regulation implements Congressional

instructions– CAA 301(d) is implemented in Tribal

Authority Rule (1998)

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Rules and Regulations (cont.)

States– Required to develop or adopt regulations

• Often based on federal regulations• Also based on guidance

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Rules and Regulations (cont.)

Tribes – Eligible, but not required to participate

through TAR – Have similar authority to states as

sovereigns

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Sovereignty

• Authority over an area• Power to govern

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Titles of the Clean Air Act

• Title III— Emergency Powers and Tribal Authority, Public Involvement

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Title III

TAR Development• CAA Implementation Authority

Section 301(d)– 1990 CAA Amendments– Tribal air management authority

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Title III

TAR Development (cont.)

• EPA proposed implementation in 1994– Eligibility requirements– Application procedures– Provisions for “treating tribes as states”

• Rule proposed August 25, 1994• Rule promulgated February 12,1998

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Framework for Tribal Implementation of CAA

• Jurisdiction• Sovereign immunity• Modular approach• Grant match requirement• Federal implementation• Eligibility requirements

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Tribal Jurisdiction

• Within exterior boundaries of reservation

• Other areas where tribes can demonstrate jurisdiction

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Modular Approach

• Ensures flexibility• Tribes and EPA develop approaches• Elements to be

– Reasonably severable– Consistent with legal requirements

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Grant Match Requirements

• Grants under Sec. 103 & 105• Sec. 103 requires no match• Sec. 105 • EPA will review program over time

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Federal Implementation

• Trust responsibility• Federal Implementation Plan

(FIP) required

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TAS Eligibility Requirements

• Federally recognized tribe

• Governing body with substantial governing duties and powers

• Statement of the tribe’s authority to regulate air quality

• Capability to carry out program

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TAR Litigation History

• DC Circuit Court of Appeals• Petitions for review filed by various

groups

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Litigation Issues

• Judicial review

• Direct administration

• Public participation in TAS process

• Reservation size

• Jurisdiction

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DC Circuit Court Opinion

• Upheld EPA’s interpretation on

every issue

• One judge dissented on extent

of delegation provided by

Congress

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Appeal to Supreme Court

• Issues in petition– Definition of “reservation”– Congressional delegation of authority

• Supreme Court denied cert (review)• DC Circuit Court opinion upheld

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Treatment as a State (TAS)

• Authorized in TAR– Four eligibility requirements

– Two parts for air program

– Process used to determine tribe’s eligibility to receive delegation of authority

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Administrative TAS

• Part 1 of TAS process• Eligibility for CAA elements

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Programmatic TAS

• Part 2 of TAS process– May or may not require prior eligibility

– Used for implementation of a program

– 49.9(h)

– Eligibility and Implementation• Typically done through a TIP

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TAS Review

• 40 CFR 49.9 details EPA review– Completeness finding – within 30 days– Notice and comment to appropriate

governmental entities on jurisdiction– IG’s Office reviewed program

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TAS Review Process• Tribe submits application for each section of

law• EPA Region determines completeness• EPA offers state opportunity to comment• EPA Headquarters review possible• Final decision by Regional Administrator

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TAS Funding• TAS is not an assurance of ongoing funding

• Applications may not be disapproved, existing awards may not be terminated without prior notice and opportunity for public hearing

• Lack of funding is not disapproval or termination

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TAS Decisions

• 28 tribes eligible for TAS to receive grants under sec. 105 of CAA

• 10 tribes eligible for treatment as “affected state” under sec. 505(a)(2) of CAA

• 2 tribes eligible for sec. 110 TIP

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FY14 EPA Budget Cycle

Budget process is long and complicated!

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FY14 Budget for Tribal AQM

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Summary

• CAA intent• CAA and Federal Laws• Rules and Regulations• Guidance• Sovereignty• TAR and TAS• Federal Budget

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Questions?

David ColeEPA OAQPS

cole.david @ epa.gov919-541-5565