The Clean Air Act "Treatment As States" Rule


I. Introduction

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 the states to study the problem of air pollution.(1) Then, in the 1960's, Congress provided for the establishment of air quality criteria which the states could, but were not required to, adopt.(2) By 1970, Congress mandated the establishment of national air quality standards that each state then became primarily responsible for implementing, maintaining and enforcing.(3) Since then, the federal government and the states "have had to work together to prepare state implementation plans, emission inventories, air pollution control measures, ambient air monitoring networks, and a host of other elements of the comprehensive [national] air quality management strategy."(4)

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.(5) The 1990 amendments to the federal Clean Air Act(6) (the "CAA" or "Act"), however, have changed that by authorizing the Administrator of the United States Environmental Protection Agency (the "EPA") to "treat Indian tribes as States" under the Act.(7) 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."(8) In response to that statutory directive, the EPA, on February 12, 1998, published its final rule (the "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."(9)

Among the many CAA programs for which EPA has determined that it is "appropriate to treat Indian tribes in the same manner as States" is the Title V operating permit program. (10) Eligible tribes may, but are not required to, obtain approval to implement and enforce an operating permit program governing sources "within the exterior boundaries of the [tribe's] reservation or other areas within the tribe's jurisdiction."(11) Because Title V of the CAA requires EPA to promulgate, administer, and enforce a federal operating permit program when a "State" has failed to timely develop or adequately administer and enforce such a program, EPA has declared that, until such time as a state or tribal program has been explicitly approved for such areas, EPA should implement and enforce a federal operating permit program covering both reservations and off-reservation "Indian country."(12) Accordingly, on February 19, 1999, EPA published its final rule "setting forth EPA's approach for issuing Federal operating permits to covered stationary sources in 'Indian county,' pursuant to Title V of the Clean Air Act as amended in 1990 . . .."(13) Under that rule, the EPA will administer a federal operating permit program within areas for which EPA believes the 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.

This paper examines these two significant rules governing air quality management within "Indian country." Part II of the paper provides a brief background concerning the evolution of the treatment of Indian tribes under the CAA and reviews the pertinent 1990 amendments to the Act. Part III then examines the issues and problems raised by the TAS Rule. Part IV in turn discusses the issues and problems raised by the amendments to EPA's regulations governing federal operating permits for sources in Indian country.

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

A. Background.

Congress passed the first significant federal air pollution control act in 1963.(14) That act neither mentioned Indian tribes nor authorized direct tribal government participation in air quality management. That act provided for federal grants to state and local air pollution control agencies and established a cumbersome scheme for municipalities, states and interstate air pollution control 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.(15) While some abatement conferences were held and some rudimentary control efforts were initiated as a result of those conferences, it was clear that the 1963 act was not adequately addressing the air pollution problem.

Congress enacted the Air Quality Act of 1967 to address some of the perceived shortcomings of the 1963 act.(16) 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."(17) Next, the act directed the HEW 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."(18) The consideration of "jurisdictional boundaries" focused on state, county, or municipal boundaries, without consideration of tribal jurisdiction.(19) Once air quality control regions had been 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."(20) States, in turn, 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.(21) The states could also establish "implementation plans" to achieve the federally approved ambient air quality standards.(22) Like the 1963 act, the 1967 act did not mention Indian tribes or reservations and did not provide for direct participation by tribal governments in air quality regulation.(23) 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.

The 1970 amendments to the Clean Air Act(24) restructured the federal/state scheme for regulating air pollution. 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 commanded the EPA to establish primary and secondary national ambient air quality standards ("NAAQS") to protect public health and welfare.(25) 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."(26) Congress further mandated that EPA promulgate a federal implementation plan for any area that did not meet specified attainment deadlines.(27) The 1970 amendments also strengthened the federal role by adding a new section providing, among things, federal authority to enforce state implementation plan provisions.(28) Once again, the 1970 amendments did not mention Indian tribes or provide a role for tribal governments in implementing the federal air quality management scheme.(29)

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 . . .."(30) The 1970 version of § 110 of the CAA mandated that, within nine months(31) after the promulgation of a 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."(32) Each SIP is thus the "master plan for the state's compliance with applicable NAAOS."(33) 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."(34) The SIP is the "primary regulatory mechanism for implementing federal controls on air pollution sources"(35) under the CAA. Significantly, the 1970 amendments did not provide for Indian tribes or tribal governments to adopt implementation plans. Instead, air quality on Indian lands would be governed by a SIP or a federal implementation plan.

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 ("PSD") program.(36) This statutory amendment countenanced EPA's then-existing practice of permitting tribes to redesignate lands within their reservations.(37) 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.(38) 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.(39)

Initially, the express Congressional authorization for tribes to redesignate lands within reservation boundaries under the PSD program appeared to be a significant step toward the recognition of tribes as a governing body with a role in the implementation of the federal air quality regime. The Northern Cheyenne Tribe, for example, redesignated its reservation in Montana from Class II to Class I.(40) 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.(41)

Ultimately, however, the ability to redesignate lands within reservation boundaries did not significantly strengthen tribal authority over air quality. First, the 1977 amendments did not authorize tribes to take any enforcement action under the PSD program, but rather left enforcement authority exclusively with the EPA and the states.(42) Instead of direct enforcement authority, 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.(43) Second, the PSD program only applied to a limited class of pollution sources, thus limiting its usefulness as a regulatory tool.(44) 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.

B. The 1990 Amendments.

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)(45) (the "Treatment as States Provision") which authorizes the Administrator of the EPA "to treat Indian tribes as States . . .."(46) That section establishes the minimum eligibility criteria for tribes to be treated as states. Tribes shall be accorded such treatment only if:

(A) the Indian tribe has a governing body carrying out substantial governmental duties and powers;

(B) 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

(C) 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.(47)

Congress provided, however, that EPA need not treat tribes the same as 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."(48)

The second amendment affecting tribal authority was the addition of section 110(o) governing tribal implementation plans ("TIPs").(49)

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 this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601(d)(2) of this title. 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.(50)

While the above language declares that 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."(51)

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."(52) 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."(53)

On August 25, 1994, EPA issued proposed rules to implement the Treatment as States provision of the Act.(54) After receiving comments from state and tribal officials, private industry, and the general public, EPA made some revisions and then published the final TAS Rule on February 12, 1998.(55) That Rule became effective on March 16, 1998.(56) In April, 1998, an appeal from the final TAS Rule was filed in the United States Court of Appeals for the District of Columbia Circuit.(57) As of the date of submission of this article, that appeal was still pending and opening briefs were due to be filed on July 6, 1999.

III. "Treatment As States" Rule: Issues and Problems.

This section analyzes some of the issues and problems associated with the TAS Rule. First, this section addresses some of the issues associated with the TAS Rule's procedures for reviewing and approving tribal applications for eligibility determinations and program delegation. Next, this section examines the TAS Rule's treatment of tribal jurisdiction over non-Indian owned fee lands within reservation boundaries. Following that, the issues flowing from provisions of the TAS Rule permitting the extension of tribal jurisdiction over off-reservation lands are examined. Then, a brief consideration of the TAS Rule's 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.

A. 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."

1. TAS Rule Procedures.

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:

(i) A map or legal description of the area over which the application asserts authority; and

(ii) 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.(58)

Within 30 days of receipt of an Indian tribe's initial complete application for an eligibility determination, the EPA Regional Administrator "shall notify all appropriate governmental entities."(59) For tribal applications addressing air resources within the exterior boundaries of a reservation, "EPA's notification . . . shall specify the geographic boundaries of the reservation."(60) For tribal applications addressing non-reservation areas, EPA's notification "shall include the substance and bases of the tribe's jurisdictional assertions."(61)

The "appropriate governmental 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."(62) Following the close of the comment period, the EPA Regional Administrator "shall decide the jurisdictional scope of the tribe's program."(63) 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."(64)

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

The notice and comment provisions of the TAS Rule raise a number of 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.(65) The TAS Rule itself does not define the phrase "appropriate governmental entities."(66)

In the preamble to the TAS Rule, EPA explains that it "has provided for notice and a limited opportunity for input respecting the existence of competing claims over tribes' reservation boundary assertions and assertions of jurisdiction over non-reservation areas to 'appropriate governmental entities,' which the Agency has defined as states, tribes and other federal entities located contiguous to the tribe applying for eligibility."(67) EPA there goes on to note that 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.'"(68) It is unclear how EPA proposes to make its notification "sufficiently prominent" that the regulated community and the general public will learn of the proposed jurisdictional scope of a tribal program. It is equally unclear how "industry and the general public" will be notified which "governmental entity" it is appropriate to submit comments through. Presumably, 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. Industry and the general public would thus be well advised to maintain some regular contact with such state and local agencies to determine when comments on tribal applications are due.(69)

Limiting the right to notice and comment 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."(70) 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, 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."(71)

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."(72) 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 . . ."(73) The choice whether to proceed through a rule-making or adjudication "lies primarily in the informed discretion of the administrative agency"(74) in the absence of express congressional directive.(75) Under an informal adjudication, interested parties are not entitled to notice and comment.(76) However, an "agency cannot avoid the requirement of notice-and-comment rule-making simply by characterizing its decision as an adjudication."(77) 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."(78) 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.'"(79)

EPA treats other jurisdictional determinations under the CAA as rule-making subject to full notice and comment. Under Title V, for example, a local air control agency can seek delegation of authority to implement and enforce an operating permit program.(80) As part of its submittal, such a local agency must provide a legal opinion demonstrating that the laws of the state or locality provide adequate authority to carry out the program.(81) "Not later than 1 year after receiving a program, and after notice and opportunity for public comment, the Administrator shall approve or disapprove such program, in whole or in part."(82) The opportunity for notice and comment there would permit the general public to comment on the proposed jurisdictional scope of the permitting program. Jurisdictional determinations concerning tribal programs should be subject to the same comment requirements.

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 EPA in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal."(83) This language is problematic. On one hand, this language could be read to mean that 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, EPA will apply the same standards, but not the same procedures, as would be used to review a similar state application.(84) If it is this latter interpretation EPA had in mind, that fails to comport with the requirements of the CAA. Title V of the Act again provides a good example. Under Title V, a local agency or interstate association may apply for and obtain delegation of authority to implement and enforce a Title V operating permit program. The local agency or interstate association requesting delegation of Title V authority then must demonstrate that it has adequate authority "to assure compliance by all sources required to have a permit,"(85) including a legal opinion that the "laws of the . . . locality or interstate compact provide adequate authority to carry out all aspects of the program."(86) That demonstration implicitly includes a showing concerning the jurisdiction of the local agency or interstate association. EPA is required to subject that demonstration, together with the balance of the submittal by the local agency or interstate association, to "notice and opportunity for public comment" before approving or disapproving the application for program delegation.(87)

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.

B. Jurisdiction Over Non-Indian Fee Lands Within Reservation Boundaries.

In the TAS Rule, 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.

1. 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."(88) EPA bases this approach on the language of CAA Section 301(d)(2)(B), 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 . . .."(89) 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."(90)

The TAS Rule defines "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."(91) 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."(92) 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."(93) EPA's case-by-case analysis "will depend on the particular status of the land in question and on the interpretation of relevant Supreme Court precedent."(94)

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."(95)

2. 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. EPA will continue to administer those programs not delegated to a tribe.(96) 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.(97) Instead, upon the effective date of the TAS Rule (March 16, 1998) such 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.(98) 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.(99)

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.(100) 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.

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The purpose of new § 238 [authorizing the Administrator to treat tribes as States] of the Act is to improve the environmental quality of the air within Indian country in a manner consistent with the EPA Indian policy and the overall Federal position in support of Tribal self-government and the government-to-government relations between Federal and Tribal Governments, as stated in the document EPA Policy for the Administration of Environmental Programs on Indian Reservations November 8, 1984.

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These amendments are intended to provide Indian tribes the same opportunity to assume primary planning, implementation, and enforcement responsibilities for programs under the Act as they are presently accorded under the Safe Drinking Water Act and Clean Water Act. See Brendale v. Confederated Yakima Indian Nation, 109 S. Ct. 2994, 3006-3007 (1989).(101)

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. Both the CWA and SDWA treatment as states regulatory schemes require a demonstration of inherent tribal authority as a prerequisite to receiving treatment as states authority.(102) In promulgating its final rule under the SDWA, the EPA rejected the notion that it should establish a rebuttable presumption that a tribal government has the necessary jurisdiction within the exterior boundaries of its reservation.(103) Instead, EPA adhered to its "statutory responsibility not to delegate enforcement authority to a Tribe unless the Tribal government possesses the necessary regulatory authority."(104) Similarly, in its final CWA treatment as states rule, EPA declared that "the third [of four Congressionally provided] criteria, concerning tribal authority, means that EPA may treat an Indian Tribe as a State for purposes of water quality standards only where the Tribe already possesses and can adequately demonstrate authority to manage and protect water resources within the boundary of the reservation."(105) EPA reaffirmed that view in promulgating its final treatment as states rule under the CWA.(106) 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 EPA's own policy statements which acknowledge that EPA will authorize tribal administration of regulatory programs "only where that government can demonstrate adequate jurisdiction over pollution sources throughout the reservation."(107)

The EPA's interpretation of § 7601(d) as a grant of "territorial jurisdiction" is also at odds with the requirements of § 7410 of the Act. Under § 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 § 7601(d)(2) . . .." Significantly, Congress invited EPA to adopt regulations governing "the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof."(108) EPA, however, elected not to promulgate such regulations, leaving TIPs subject to the existing statutory and regulatory guidelines contained in CAA § 7410 and 40 C.F.R. Part 51.

Those statutory and regulatory guidelines demonstrate that tribes that are 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."(109) That section further directs that each implementation plan shall provide:

necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the state or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry-out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof) . . ..(110)

The regulations implementing § 7410 further direct that each plan must 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."(111) 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.

C. 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. Also, sources within "Indian country" became subject to EPA regulatory authority on March 16, 1998 (the effective date of the TAS Rule) unless a state or local air pollution control agency has been expressly approved by EPA to implement CAA programs in Indian country.(112) A description of EPA's approach to jurisdiction in off-reservation "Indian country" is set forth below.

1. EPA Position Concerning Off-Reservation Areas.

The final treatment as states 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."(113) According to EPA, such authorization is consistent with the provisions of CAA § 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, EPA explains that

The phrase "other areas within the tribe's jurisdiction" contained in CAA § 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.(114)

In determining which non-reservation areas may be subject to tribal jurisdiction, EPA has indicated that it will rely upon the definition of "Indian country" contained in 18 U.S.C. § 1151.(115) EPA acknowledged "that there may be controversy over whether a particular non-reservation area is within a tribe's jurisdiction. However, EPA believes that these questions should be addressed on a case-by-case basis in the context of particular tribal applications."(116)

In adopting its approach to non-reservation areas, 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.(117) 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."(118) EPA 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."(119)

2. 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 § 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."(120) Other provisions of the Act similarly limit tribal jurisdiction to land within the exterior boundaries of a reservation.(121)

A further practical problem with EPA's off-reservation approach is the "jurisdictional entanglements and checkerboarding" of jurisdictional authority it creates. Ironically, 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."(122) 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 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.(123)

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."(124) 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."(125) These obligations would apply to any eligible tribe regardless whether the tribe has an approved Title V permit program.(126) 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.

EPA's approach to jurisdiction over off-reservation Indian country also may have an impact on PSD permitting. EPA has indicated that it interprets the United States Supreme Court's decision in Oklahoma Tax Commission(127) 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."(128) 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.(129) EPA therefore may be willing to accept tribal redesignations of areas in off-reservation Indian country that EPA 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 . . .."(130)

D. 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 declares that it "believes the CAA represents a clear delegation of authority to eligible tribes over reservation resources"(131) and that delegation "represents a more recent expression of Congressional intent and will generally supersede other federal statutes."(132) The EPA then asserts that "the CAA generally would supersede pre-existing treaties or binding agreements that may limit the scope of tribal authority over reservations."(133) 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.

E. 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.

1. The CAA Citizen Suit Provision.

The CAA citizen suit provision(135) states that

Any person may commence a civil action on his own behalf -

(1) 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,

(2) 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

(3) 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.(136)

Under the 1990 amendments to the CAA, citizen suits may be brought both to obtain civil penalties and injunctive relief.(137)

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

When it initially proposed the TAS Rule in August, 1994, EPA had expressed its intention that the citizen suit provisions contained in § 7604 should apply to tribes in the same manner in which they apply to states.(138) In the final TAS Rule, however, EPA declined "to announce a position, in the context of the rule-making required under § 301(d) of the Act, regarding whether tribes are subject to the citizen suit provision contained in § 304 . . .."(139) As a consequence, § 7604 of the Act is included among the list of CAA provisions which, for purposes of § 7601(d), 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 EPA acknowledges 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."(140)

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.

F. Exemption of Tribal Title V Programs From "Judicial Review."

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.(141) In doing so, 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."(142) 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.

1. 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, for public notice, including 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.(143)

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 (in accordance with the time period specified in § 7661b of this title or, as appropriate, subchapter IV-A of this chapter) shall be treated as a final permit action solely for purposes of obtaining judicial review in state court of an action brought by any person referred to in paragraph (6) to require that action be taken by the permitting authority on such application without additional delay.(144)

Any proposed state Title V permitting program cannot be approved by EPA if such provisions are not included in their permit program.(145)

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

In its 1994 notice of proposed rule-making, the EPA had proposed to treat tribes in the "exact same manner as States for purposes of the provisions of CAA sections . . . addressing judicial review under the Title V operating permits program."(146) In the final TAS Rule, however, the EPA withdrew its proposal to treat tribes in the exact same manner as states for purposes of the Title V judicial review provisions.(147) 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, EPA 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."(148) Rather than apply the judicial review requirements, then, EPA will "consider alternative options, developed and proposed by a tribe in the context of a tribal CAA Title V program submittal, that 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."(149) 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 § 502(b)(6) that there will be review of final permit actions . . .."(150) The TAS Rule does not provide any clear guidance on the alternatives EPA would accept. Instead, the Rule promises that EPA "will develop guidance in the future on acceptable alternatives to judicial review."(151)

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

EPA based its decision to exempt tribes from the Title V judicial review requirements on the notion that the Indian Civil Rights Act(152) will provide adequate procedural and substantive safeguards to those subject to a tribal permitting program. EPA explained that 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, 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."(153)

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.(154) 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.(155) Subject to one extremely narrow exception, then, parties subject to a tribal Title V permit program may not have access to federal court.

The one narrow exception authorizing direct federal court action to enforce rights under the ICRA was created in Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes.(156) 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."(157) 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.(158) 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."(159) 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 (1) the non-Indian property owners had no remedy available to them within the tribal system, (2) their claim was not a purely internal tribal matter, and (3) a non-Indian claimant was involved.(160) 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."(161) 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."(162) Two other circuits, however, have rejected the Dry Creek Lodge rationale.(163) 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 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.(164) 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."(165) Most tribal courts, however, have refused to hear claims under the ICRA.(166) Even if a tribal court were to hear ICRA claims, review beyond the tribal court system may not be available.(167)

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 the TAS Rule's procedures for the review and approval of tribal eligibility determinations and program applications, outlined in Section III.A. above, potentially compound the problem 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.

IV. 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 EPA's approach for issuing operating permits to stationary sources located in "Indian country."(168) In the final TAS Rule, EPA announced its determination that tribes should not be treated "identical 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 EPA for approval.(169) 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 that potential gap in coverage, EPA announced that 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 that there are no gaps in Title V coverage for sources in Indian country, EPA will also administer the Part 71 program within areas for which EPA believes the Indian country status is in question, until EPA explicitly approves or extends approval of a State or Tribal program to cover the area.(170)

In fact, EPA "will implement the Part 71 [federal operating permit] program even in areas of Indian country where a State may be able to demonstrate jurisdiction."(171) This rule became effective March 22, 1999.(172) On April 20, 1999, several industry petitioners, trade groups and states initiated an appeal from this rule with the United States Court of Appeals for the D.C. Circuit.(173)

A. The Final Part 71 Rule.

The final Part 71 rule mandates that, within one year from the effective date of the rule (March 22, 1999), or some earlier deadline set by the EPA regional offices, Title V sources(174) in "Indian country" must submit an application for a federal operating permit to the appropriate EPA Region.(175) While 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.(176) 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. As the EPA explains

the Agency interprets past approvals of State Title V programs as not extending to Indian country unless the State has made an explicit demonstration of jurisdiction over Indian country, and EPA has explicitly approved the State's Title V program for such area. This is consistent with Congress' requirement that EPA approve State and Tribal programs only where there is a demonstration of adequate authority. . . . Since States generally lack the authority to regulate air resources in Indian country, EPA does not believe it would be appropriate for the agency to approve State CAA programs as covering Indian country where there has not been an 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. Thus, to the extent States or others may have interpreted past EPA approvals that were not based on explicit demonstrations of adequate authority and did not explicitly grant approval in Indian country, as approvals to operate Part 70 programs in Indian country, EPA wishes to clarify any such misunderstanding . . ..

Except where expressly noted, at the time EPA issued Part 70 approvals, EPA did not find that the States whose programs were subject to the approvals had made an adequate showing of authority to CAA sections 502(b)(5)(A) and (E) to justify approval of their programs in Indian country.(177)

All sources subject to the program "must pay permit fees, but EPA may reduce permit fees for sources that are located in areas for which 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."(178) The fees "may be reduced up to an amount that equals the difference between the fee required under [40 C.F.R. § 71.9(c)] and the fee paid to a State or local permitting authority. The fee reduction will cease if the area in which the source is located is later determined to be Indian country."(179) 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 EPA to make an applicability determination.(180) The Final Part 71 Rule does not establish any timetable governing the issuance by EPA of a formal determination. Conceivably, then, EPA's ruling on a request for a formal determination might not be issued until after the March 22, 2000 deadline for the submission of a Title V application under Part 71. 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.(181) Failure to submit a timely permit application will cause a source to lose its application shield.(182) EPA applicability determinations made pursuant to the final rule are final agency actions for purposes of judicial review under § 307(b) of the Act.

B. 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.

1. Divining "Indian Country" Status.

In the final Part 71 Rule, EPA again advances its same positions concerning tribal jurisdiction over fee lands within reservation boundaries and over lands outside reservation boundaries.(183) The issue of tribal jurisdiction over off-reservation "Indian country" takes on greater urgency under the final Part 71 Rule, though, in light of EPA's stated position that a source located in an area as to which the Indian country status is in question will lose the "application shield" unless it submits a timely, complete Title V permit application to EPA by no later than March 22, 2000. EPA takes the position that

in most cases, determining whether sources are located within Indian country will be straight-forward and non-controversial. That is, in the majority of cases, 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 DOI has said is Indian country (which could include dependent Indian communities). These assessments can be verified through consultation with DOI and will be informed by data and materials received from States, surveys, DOI and Tribes. In the rarer, more complex factual cases such as those involving pending diminishment issues and dependent Indian community issues, EPA in appropriate cases will work with 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 EPA has reviewed the relevant materials, the Agency will send letters to sources that EPA believes are located in such areas or in Indian country, indicating that they are expected to submit a federal Title V permit application within one year of the program's effective date . . . however, if EPA fails to notify some sources that are subject to the program, note that it is the source's responsibility to ascertain whether it is subject to Part 71 and submit any required permit application.(184)

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."(185)

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.(186) 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." In the final TAS Rule, EPA declared that "the term 'reservation' in CAA section 301(d)(2)(B) should be interpreted in light of Supreme Court case law, including Oklahoma Tax Commission, 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."(187)

The EPA explained that

In applying this precedent to construe the term "reservation" in the context of the CWA, the Agency has only recognized two categories of lands that, even though they are not formally designated as "reservations," nonetheless qualify as "reservations": pueblos and tribal trust lands. . . . EPA 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 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.(189)

Determining whether a source is located "within the limits of any Indian reservation" or within a "dependent Indian community," may prove to be more challenging. The phrase "dependent Indian community" is not defined in the final Part 71 Rule. That phrase, like the balance of the Indian country definition in the final Part 71 Rule, was taken directly from 18 U.S.C. § 1151. The litigation concerning the contours of the term "dependent Indian community" under § 1151 has been voluminous.(190) The Supreme Court's 1998 decision in Alaska v. Native Village of Venetie Tribal Government,(191) however, may help to better define the contours of "dependent Indian community." In that case, the Supreme Court granted certiorari and reversed the Ninth Circuit. The Supreme Court had to decide whether "approximately 1.8 million acres of land in northern Alaska, owned in fee simple by the Native Village of Venetie Tribal Government pursuant to the Alaska Native Claims Settlement Act . . . is 'Indian country.'"(192) The 1.8 million acres had been set aside as a reservation in 1943. The land remained a reservation until the passage of the Alaska Native Claims Settlement Act ("ANCSA"), a comprehensive statute designed to settle all land claims by Alaska natives. Under ANCSA, the United States conveyed fee simple title to the land to two corporations, as tenants in common, who in turn conveyed the land to the Native Village of Venetie Tribal Government (the "Village"). More than a decade later, Alaska entered into a joint venture with a contractor to build a public school on the Village land. The Village sought to impose $161,000 in taxes for conducting business on Village land, and both the contractor and the state refused to pay. The State of Alaska filed suit in federal district court to enjoin collection of the tax. The district court held that the Village land was not a "dependent Indian community" and that the Village therefore lacked the power to tax non-members for conduct on that land. The Ninth Circuit Court of Appeals reversed.(193)

A unanimous Supreme Court held that the term "dependent Indian communities" as used in § 1151(b) "refers to a limited category of Indian lands that are neither reservations nor allotments and that satisfy two requirements - first, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence."(194) According to the Court, the "federal set-aside requirement insures that the land in question is occupied by an 'Indian community.'"(195) That requirement also "reflects that because Congress has plenary power over Indian affairs . . . some explicit action by Congress (or the Executive acting under delegated authority) must be taken to create or to recognize Indian country."(196) The "federal superintendence" requirement guarantees that the Indian community is sufficiently "dependent" on the federal government that the federal government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question. In Village of Venetie, the Supreme Court rejected the argument that the requisite federal superintendence was present "because the Federal Government provides 'desperately needed health, social, welfare, and economic programs' to the Tribe."(197)

Our Indian country precedents . . . do not suggest that the mere provision of "desperately needed" social programs can support a finding of Indian country. Such health, education, and welfare benefits are merely forms of general federal aid; considered either alone or in tandem with ANCSA's minimal land-related protections, they are not indicia of active federal control over the tribe's land sufficient to support a finding of federal superintendence.(198)

The Court also rejected the argument that the word "dependent" refers to "political dependence, and that Indian country exists whenever land is owned by a federally recognized tribe."(199) The Court dismissed that argument, stating that it ignored Supreme Court "Indian country precedents, which indicate both that the Federal Government must take some action setting apart the land for the use of the Indians 'as such,' and that it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government."(200)

While the decision in Native Village of Venetie provides useful guidance in evaluating whether an area qualifies as a "dependent Indian community," it may not resolve whether EPA will consider land within an area which was once set aside as a reservation but which subsequently was opened for settlement to be within a "reservation." In Native Village of Venetie, the ANCSA revoked the reservation status of the land and permitted conveyance of that land to private, state chartered corporations, without any restraint on alienation or in any significant use restrictions with the express goal of avoiding "any permanent racially defined institutions, rights, privileges or obligations."(201) In other circumstances, the federal statute or executive order opening or disestablishing a reservation may not have been as clear.(202) A detailed examination of the circumstances surrounding the passage of the relevant statute or executive order as well as an examination of subsequent circumstances thus may be a necessary part of the analysis.

2. Divining Applicable Requirements in "Indian Country."

Submitting a timely and complete Title V permit application by no later than March 22, 2000 may prove challenging. In order to have a permit application deemed complete, the application must provide all information required by the Part 71 regulations.(203) The regulations require that a source identify in its application all "applicable requirements."(204) "Applicable requirements" are defined as including "any standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rule-making under Title I of the Act that implements the relevant requirements of the Act . . .."(205) As discussed earlier in the paper, EPA takes the position that a SIP is inapplicable within "Indian country" unless 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.(206) If that is the case, then EPA will have to develop a federal implementation plan to cover off-reservation Indian country. There is a good possibility, however, that a TIP or a FIP for a given area may not be proposed or finalized by the March 22, 2000 deadline for timely submission of a federal Title V permit application.

Compounding the problem of determining applicable requirements are the EPA's admitted "gaps" in regulatory coverage within Indian country.(207) 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.

V. Conclusion.

Over the next several years, 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, 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 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, and it is unclear at present precisely what EPA will accept as a substitute for judicial review.

For Title V sources located in off-reservation areas, the immediate challenges will be to determine whether they are located in Indian country and whether the EPA region in which they are located has set or intends to set a deadline for submission of Part 71 application earlier than the March 22, 2000 deadline established by the Final Part 71 Rule. 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 advance of the deadline for filing a Part 71 application. 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.

ENDNOTES


1. Air Pollution Control - Research and Technical Assistance Act, Pub. L. No. 84-159, 69 Stat. 322 (1955).

2. See notes 16 through 23 and accompanying text, infra.

3. See notes 24 through 35 and accompanying text, infra.

4. Michael R. Barr, Introduction to the Clean Air Act: History and Perspective, in The Clean Air Act Handbook 1, 2 (Robert J. Martineau, Jr. et. al, eds. 1998).

5. Indian tribes could, and sometimes did, submit written comments on proposed federal or state regulations and could participate in public hearings as members of the public. Following the 1977 amendments to the Act, tribes also had the authority to redesignate the area within the exterior boundaries of their reservation for purposes of the Prevention of Significant Deterioration program. See notes 36 through 44 and accompanying text, infra.

6. 42 U.S.C. §§ 7401 - 7671q.

7. Id. § 7601(d)(1)(A).

8. Id. § 7601(d)(2).

9. 63 Fed. Reg. 7,253, 7,253 (February 2, 1998).

10. Title V's operating permit program was added to the CAA as part of the 1990 amendments. Title V imposes a requirement that all "major stationary sources" (and some minor sources) obtain operating permits to begin or continue operation. A Title V operating permit records in a single permit document all CAA requirements that apply to that source. The permit thus would contain all relevant air emission limitations, monitoring and reporting requirements contained in the applicable state (or federal or tribal) implementation plan, as well as any applicable regulations under CAA § 111 (new source performance standards), CAA § 112 (hazardous air pollutants), prevention of significant deterioration or new source review requirements, or other applicable CAA rules.

11. See 42 U.S.C. § 7601(d)(2)(B).

12. The term "Indian country" is defined in the federal criminal code at 18 U.S.C. § 1151. That section defines the term to mean "(a) 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, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." Though the term is defined in the criminal code, EPA has adopted the definition to define the scope of federal and tribal jurisdiction over air programs.

13. 64 Fed. Reg. 8,247, 8,247 (February 19, 1999). On that same date EPA also issued an "informational notice" to "provide additional notice to stationary air sources that are located in Indian country or in areas for which EPA believes the Indian country status is in question that they should consult the final rule . . . to determine whether they are subject to it." 64 Fed. Reg. 8,355, 8,355-56 (February 19, 1999).

14. Pub. L. No. 88-206, 77 Stat. 392 (1963). In 1955, Congress enacted the Air Pollution Control - Research and Technical Assistance Act, Pub. L. No. 84-159, 69 Stat. 322. That act did not provide any regulatory authority. Instead, the act merely authorized federal research, as well as technical and financial assistance. Congress did not attempt to impose controls or regulations applicable to air polluting activities until the passage of the 1963 Clean Air Act.

15. Pub. L. No. 88-206, § 5, 77 Stat. 392, 396. Neither "State" nor "municipality" was defined to include Indians or Indian tribes. See id. § 9, 77 Stat. 400.

16. Pub. L. No. 90-148, 81 Stat. 485.

17. Id. § 107(a)(1), 81 Stat. 490.

18. Id. § 107(a)(2), 81 Stat. 490-91.

19. See id. § 302, 81 Stat. 504 (defining "air pollution control agency" by reference to public bodies created by or pursuant to state law).

20. Id. § 107(b)(1), 81 Stat. 491.

21. Id. § 108(c)(1), 81 Stat. 492.

22. Id.

23. Section 302 of the 1967 act set forth the key definitions. "State" was defined as "a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa." Pub. L. No. 90-148, § 302(d). "Person" was defined as "an individual, corporation, partnership, association, State, municipality, and political subdivision of a State." Id. § 302(e). "Municipality" was defined as "a city, town, borough, county, parish, district, or other public body created by or pursuant to State law." Id. § 302(f). And, "air pollution control agency" was defined as:



(1) A single State agency designated by the Governor of that State as the official State air pollution control agency for purposes of this Act;



(2) An agency established by two or more States and having substantial powers or duties pertaining to the prevention and control of air pollution;



(3) A city, county or other local government health authority, or, in the case of any city, county, or other local government in which there is an agency other than the health authority charged with responsibility for enforcing ordinances or laws relating to the prevention and control of air pollution, such other agency; or



(4) An agency of two or more municipalities located in the same State or in different States and having substantial powers or duties pertaining to the prevention and control of air pollution.



Id. § 302(b).

24. Pub. L. No. 91-604, 84 Stat. 1676 (1970).

25. Pub. L. No. 91-604, 84 Stat. 1676, § 108 (currently codified at 42 U.S.C. § 7408).

26. Id. § 107(a), 84 Stat. 1678.

27. Id. § 110(c).

28. Id. § 113, 84 Stat. 1686-67.

29. The 1963 act's definitions of "State," "person," "municipality," and "air pollution control agency" remained unchanged by the 1970 amendments. See note 22 supra.

30. 42 U.S.C. § 7401(a)(3).

31. The 1990 amendments changed this time frame to three years after the date of promulgation of a primary or secondary NAAQS.

32. Id. § 110(a)(1). Each SIP must be adopted by a state after reasonable public notice and a public hearing. Following the 1990 amendments, the basic elements of a SIP are: (1) enforceable emission limitations and other control measures; (2) schedules and timetables for compliance; (3) appropriate plans to monitor, compile, and analyze ambient air quality data; (4) enforcement measures; (5) a permit program; (6) prohibition of significant contributions to non-attainment in other areas and interference with measures of SIPs of other states; (7) abatement measures for interstate and international pollution; (8) assurances regarding adequate personnel, funding and authority to carry out air quality functions; (9) requirements regarding monitoring and reports from major stationary sources; (10) citizen suit provisions; (11) SIP revision provisions; (12) contingency plans; (13) air quality modeling; and (14) consultation and participation of local political subdivisions affected by the plan.

33. Id.

34. Id.

35. Duane A. Siler, Title V - Permits, in Clean Air Law and Regulation 312, 314 (Timothy A. Vanderver, Jr. ed. 1992).

36. Pub. L. No. 95-95, § 127(a), 91 Stat. 685, 733 (codified at 42 U.S.C. § 7474(c)). See 40 C.F.R. § 52.21(c)(3) (1975) and Nance v. Environmental Protection Agency, 645 F.2d 701 (9th Cir. 1981).

37. See 40 C.F.R. § 52.21(c)(3) (1975); Nance v. Environmental Protection Agency, 645 F.2d 701 (9th Cir. 1981).

38. See 42 U.S.C. 7473.

39. Id. Generally, Class I areas were incapable of being redesignated and had the most stringent increment levels. Class II areas were those areas in which air quality deterioration accompanying moderate well controlled growth was considered insignificant. Class III areas permitted the greatest level of growth and had the least stringent increments.

40. A nearby utility, the Crow Indian Tribe and others appealed the EPA's approval of the redesignation and the Ninth Circuit Court of Appeals upheld the redesignation. Nance v. Environmental Protection Agency, 645 F. 2d 701 (9th Cir, 1981).

41. See Montana Power Co. v. Environmental Protection Agency, 608 F.2d 334, 343 (9th Cir. 1979). See also Arnold W. Reitze, Jr., Air Pollution Law 234 (1995).

42. 42 U.S.C. § 7477.

43. Pub. L. No. 95-95, § 127(a), 91 Stat. 685, 734-35 (codified at 42 U.S.C. § 7474(e)).

44. The PSD program, for instance, does not regulate any listed stationary source that has the potential to emit less than 100 tons annually of any air pollutant, any other non-listed source that has a potential to emit less than 250 tons annually of any air pollutant, or any "new or modified facilities which are non-profit health or education institutions which have been exempted" by a State. 42 U.S.C. § 7479(1).

45. Pub. L. No. 101-549, Title I, § 107(d), 104 Stat. 2464-65 (codified at 42 U.S.C. § 7601(d)).

46. 42 U.S.C. § 7601(d)(1)(A).

47. Id. § 7601(d)(2).

48. Id. § 7601(d)(4).

49. Pub. L. No. 101-549, Title I, § 107(c), 104 Stat. 2464 (codified at 42 U.S.C. § 7410(o)).

50. Id.

51. Id. § 7601(d)(3).

52. Id. § 7601(d)(2).

53. Id. § 7601(d)(4).

54. 59 Fed. Reg. 43,956 (August 25, 1994).

55. 63 Fed. Reg. 7,253 (February 12, 1998).

56. Id.

57. The National Association of Manufacturers, et al. v. United States Environmental Protection Agency, appeal docketed, Docket No. 98-1203 and consolidated cases (D.C. Cir. 1998).

58. 40 C.F.R. § 49.7(a)(3) (1998). The complete listing of eligibility criteria and the minimum elements of an application for an eligibility determination are contained at 40 C.F.R. §§ 49.6 & 49.7 (1998).

59. 40 C.F.R. § 49.9(b).

60. 40 C .F.R. § 49.9(b)(1) (1998).

61. Id. § 49.9(b)(2).

62. Id. § 49.9(c). EPA's phrasing here is curious. Read literally, the rule authorizes "appropriate governmental entities" to comment only on the "boundary of the reservation" and not on tribal assertions of jurisdiction over non-reservation areas.

63. Id. § 49.9(e).

64. Id. § 49.9 (f).

65. Id. § 49.9.

66. Indeed, the only other place in which that phrase appears in 40 C.F.R. is section 131.8, which addresses the requirements for Indian tribes to administer a water quality standards program. In describing the procedure for processing an Indian tribe's application, § 131.8(c)(2) provides that



Within 30 days after receipt of the Indian tribe's application, the Regional Administrator shall provide appropriate notice. Notice shall:



(i) Include information on the substance and basis of the tribe's assertion of authority to regulate the quality of the reservation waters; and



(ii) Be provided to all appropriate governmental entities.

67. 63 Fed. Reg. at 7,267.

68. Id.

69. There is no guarantee, however, that the "appropriate governmental entity" will forward any comments submitted to it. The City of Albuquerque, for example, was foreclosed under the Clean Water Act regulations from commenting directly on the Pueblo of Isleta's proposed CWA program and the State of New Mexico chose not to pass on the City's comments or concerns to the EPA prior to EPA's action on the Pueblo's proposal.

70. Id.

71. Id.

72. 5 U.S.C. § 551(7).

73. Id. § 551(4).

74. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947).

75. The APA applies to the CAA if the rule-making is not otherwise governed by the special procedural standards of 42 U.S.C. § 7607(d)(1) (1994). Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1083 n. 29 (D.C. Cir. 1996).

76. 5 U.S.C. § 555; Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 110 S. Ct. 2668, 2681 (1990); Keystone Shipping Co. v. U.S., 801 F. Supp. 771, 785 (D.D.C. 1992).

77. Yesler Terrace Community v. Cisneros, 37 F.3d 442, 449 (9th Cir. 1994).

78. Id. at 448; see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216-17, 109 S. Ct. 468, 476 (1988) (the "central distinction" between rule-making and adjudication is that rules have legal consequences "only for the future") (Scalia, J., concurring); but see Atochem North America, Inc. v. U.S.E.P.A., 759 F. Supp. 861, 868 (D.D.C. 1991) ("despite the fact that prospectivity is generally an attribute of rules, courts have upheld agency orders which impact policy and have general prospective application.")

79. Independent Bank of Ga. v. Board of Gov. of F.R.S., 516 F.2d 1206, 1215 (D.C. Cir. 1975).

80. 42 U.S.C. § 7661a(d).

81. See id.; 40 C.F.R. § 70.4(b)(3) (1998).

82. 42 U.S.C. § 7661a(d) (emphasis supplied).

83. 40 C.F.R. § 49.9(h) (1998).

84. In the preamble to the final TAS Rule, EPA states:



This final rule allows tribes to submit simultaneously to EPA a request for an eligibility determination and a request for approval of a CAA program. In such circumstances, EPA will likely announce its decision with respect to eligibility and program approval in the same Federal Register notice, for purposes of administrative convenience. However, EPA does not intend this simultaneous decision process of itself to be interpreted as altering the Agency's view . . . regarding APA applicability with respect to notice and review opportunities provided to appropriate governmental entities with respect to tribal reservation boundary and non-reservation jurisdictional assertions.



63 Fed. Reg. at 7,267.

85. 42 U.S.C. § 7661a(b)(5)(A).

86. 40 C.F.R. § 70.4(b)(3).

87. 42 U.S.C. § 7661(d)(1).

88. 63 Fed. Reg. at 7,254.

89. 42 U.S.C. § 7601(d)(2)(B).

90. 63 Fed. Reg. at 7,254.

91. 40 C.F.R. § 49.2(b) (1998).

92. 63 Fed. Reg. at 7,258 (citing Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma,498 U.S. 505, 511 (1991)).

93. 63 Fed. Reg. at 7,258.

94. Id. In a November 24, 1998 Memorandum, the Director, Office of Program Operations, Office of Air and Radiation stated that "Land that was previously a reservation, but is not currently a reservation, is not to be considered a reservation for purposes of Tribal authority under the CAA based solely on the fact that that land was a reservation." Memorandum from Jerry A. Kurtzweg, Director, Office of Program Operations, Office of Air and Radiation to Robert E. Hanneschlager, Acting Director, Multimedia Planning and Permitting Division, Region VI (November 24, 1998).

95. 63 Fed. Reg. at 7,258. The EPA reiterates this rationale in the preamble to its final federal operating permits program rule. See 64 Fed. Reg. 8,247 (Feb. 19, 1999). See also Section IV infra.

96. See 63 Fed. Reg. at 7,258.

97. Id.

98. Id. Title V sources located on fee lands within reservation boundaries are now required to file an application with the EPA for a federally issued operating permit on or before March 22, 2000. See Section IV, infra.

99. In the preamble to the final TAS Rule, EPA admitted that there are instances in which EPA has not yet promulgated regulations to implement its statutory authority." 63 Fed. Reg. at 7,263. As an example, EPA cited the "absence of complete air permitting programs in Indian country." Id. As of the date of promulgation of the TAS Rule, EPA had not promulgated regulations for a permitting program in Indian country for either minor or major sources of air pollution in nonattainment areas. EPA also identified certain categories of sources of air pollution (such as open burning and fugitive dust) that were not covered by existing EPA regulations. To address those kinds of situations, EPA declared that it would "promulgate regulations on a national basis that would apply until a TIP has been submitted and approved." Id. Those national rules were to be "analogous to, but not the same in all respects, as the types of rules generally approved into State Implementation Plans." Id. at 7,263-64.

100. See Senate Report No. 101-228, 101st Cong., 1st Sess. (December 20, 1989).

101. Senate Report No. 101-228, pps. 78-79, 1990 U.S. Code Cong. & Admin. News at 3464-65.

102. See 40 C.F.R. § 145.56 (SDWA treatment as states provision); 40 C.F.R § 131.8 (CWA treatment as states provision).

103. See 53 Fed. Reg. 37,396, 37,399 (September 26, 1988).

104. Id. at 37, 400.

105. 54 Fed. Reg. 39,098, 39,101 (September 22, 1989).

106. See 56 Fed. Reg. 64,876, 64,878 (December 12, 1991) ("Whether a tribe has jurisdiction over activities by non-members will be determined case-by-case, based on factual findings"). In Montana v. United States Environmental Protection Agency, 137 F.2d 1135 (9th Cir.), cert. denied, 119 S. Ct. 275 (1998), the Ninth Circuit Court of Appeals affirmed the EPA's decision to grant TAS status to the Confederated Salish and Kootenai Tribes to promulgate water quality standards that apply to all sources of pollutant emissions within the boundaries of their reservation, regardless of whether the sources are located on land owned by members or non-members of the Tribe. In doing so, the Ninth Circuit upheld the EPA's finding that "the activities of the non-members posed such serious and substantial threats to Tribal health and welfare that Tribal regulation was essential." Id. at 1141. The Ninth Circuit also agreed with EPA that "due to the mobile nature of pollutants in surface water it would in practice be very difficult to separate the effects of water quality impairment on non-Indian fee land from impairment on the tribal portions of the reservation." Id.

107. July 10, 1991 EPA/States/Tribal Relations Memorandum, signed by EPA Administrator William K. Reilly.

108. 42 U.S.C. § 7601(d)(3).

109. 42 U.S.C. § 7410(a)(1).

110. Id. § 7410(a)(2)(e).

111. 40 C.F.R. § 51.230(b).

112. 63 Fed. Reg. at 7,258. Title V sources within Indian country now must file an application for a federal operating permit by no later than March 22, 2000. See Section IV, infra.

113. 63 Fed. Reg. at 7,258.

114. Id. at 7,259.

115. Id.

116. Id.

117. See 63 Fed. Reg. at 7,258.

118. Id. at 7,260.

119. Id.

120. EPA blithely rejected any significance of this statutory language, noting that "the reference in CAA § 110(o) to 'reservation' is simply a description of the type of area over which a TIP may apply" and that EPA "does not believe the provision was intended to limit the scope of TIPs to reservations." 63 Fed. Reg. at 7,259.

121. See, e.g., 42 U.S.C. § 7474(c) ("Lands within the exterior boundaries of reservations of federally recognized Indian tribes may be redesignated only by the appropriate Indian governing body.").

122. 63 Fed. Reg. at 7,258.

123. 42 U.S.C. § 7410(o) provides that a TIP shall only be "applicable to all areas . . . located within the exterior boundaries of the reservation. . . ." A TIP thus should not be applicable to lands within off-reservation Indian country. 40 C.F.R. § 49.11 (1998) provides that EPA "shall promulgate without unreasonable delay such federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections 304(a) and 301(d)(4), if a tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 C.F.R. part 51, Appendix V, or does not receive EPA approval of a submitted tribal implementation plan." In light of the express language in § 7410(o), EPA should not be able to approve that portion of a TIP that purports to cover lands outside the exterior boundaries of the tribe's reservation. EPA therefore should have to issue a federal implementation plan for all lands encompassed within off-reservation Indian country.

124. 42 U.S.C. § 7661(d)(a)(2).

125. Id.

126. See 59 Fed. Reg. at 43,967.

127. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

128. 63 Fed. Reg. at 7,258.

129. Id.

130. 42 U.S.C. § 7474(c). See Administrator v. United States Environmental Protection Agency, 170 F.3d 870 (9th Cir. 1999), modifying 151 F.3d 1205 (9th Cir. 1998) (in which the EPA approved the Yavapai-Apache tribal Council's request to redesignate 5 parcels of land totaling 458 acres as a "Class I" area and the Ninth Circuit remanded for a determination whether four of those parcels are reservations for purposes of 42 U.S.C. 7474(c)).

131. 63 Fed. Reg. at 7,256, n. 4.

132. Id. at 7,256.

133. Id. at 7,256, n. 5.

134. See 40 C.F.R. § 49.4(o) (1998).

135. 42 U.S.C. § 7604.

136. Id. § 7604(a).

137. Id.

138. See 59 Fed. Reg. at 43,978 (August 25, 1994).

139. 63 Fed. Reg. at 7,260.

140. 63 Fed. Reg. at 7,261.

141. 40 C.F.R. § 49.4(p) (1998) (exempting tribes from the "judicial review" requirements of 42 U.S.C. § 7661a(b)(6) & (7).

142. 63 Fed. Reg. at 7,262.

143. 42 U.S.C. § 7661a(b)(6).

144. Id. § 7661a(b)(6) & (7).

145. See id. § 7661a(d).

146. 63 Fed. Reg. at 7,261 (citing 59 Fed. Reg. at 43,972).

147. Id.

148. Id.

149. Id. at 7,262. In addition, EPA "may use several oversight mechanisms to ensure that tribal Title V programs provide adequate opportunities for citizen recourse. E.g., CAA sections 502(i) (requiring EPA assumption of state or tribal Title V programs that EPA finds are not being adequately implement or enforced . . .)."

150. Id.

151. Id.

152. 25 U.S.C. § 1302.

153. 63 Fed. Reg. at 7,261, n. 7.

154. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

155. See id. at 59.

156. 623 F.2d 682, 685 (10th Cir. 1980), cert. denied, 449 U.S. 1119 (1981).

157. Id. at 684.

158. Id.

159. Id.

160. Id. at 685.

161. Id.

162. White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).

163. See R. J. Williams Co. v. Ft. Belknap Housing Authority, 719 F.2d 979, 981 (9th Cir. 1983), cert. denied, 472 U.S. 1016 (1985); Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir. 1982), cert. denied, 495 U.S. 907 (1982).

164. See, e.g., Houghtaling v. Seminole Tribe of Florida, 611 So.2d 1235, 1238-39 (Fla. S. Ct. 1993); Dixon v. Picopa Constr. Co., 160 Ariz. 251, 256, 772 P.2d 1104, 1109 (1989).

165. Santa Clara Pueblo, 436 U.S. at 65.

166. See, e.g., Johnson v. Navajo Nation, 14 Indian L. Rep. 6037 (Navajo S. Ct. 1987).

167. See Iowa Mutual Insurance Co. v. Laplant, 480 U.S. 9, 19 (1987) ("proper deference to the tribal court system precludes relitigation of issues raised . . . and resolved in the Tribal Courts").

168. 64 Fed. Reg. 8,247 (1999) (to be codified at 40 C.F.R. Part 71).

169. The final TAS Rule exempts tribes from the deadline for submittal of operating permit programs set forth in 42 U.S.C. § 7661a(d)(1) & (3) and the mandatory sanctions provisions of 42 U.S.C. § 7661(d)(2)(b). See 40 C.F.R. § 49.4(h), (i), and (j).

170. 64 Fed. Reg. at 8,249-50.

171. Id. at 8,250.

172. Id. at 8,248.

173. State of Michigan v. Environmental Protection Agency, No. 99-1151 (D. C. Cir. April 20, 1999).

174. A Title V permit program is, at a minimum, required to cover the following: (1) sources defined as "major" under the rules in 40 C.F.R. Part 70; (2) sources subject to a standard or regulation promulgated under CAA § 111 or § 112; (3) "affected" sources under the acid rain provisions of the CAA; (4) sources required to have a PSD permit under Title I, Part C, or a new source review permit under Title I, Part D; and (5) any other sources in a category designated by EPA. See 42 U.S.C. § 7661a(a).

175. See 40 C.F.R. § 71.4(b)(2) & 64 Fed. Reg. at 8,250. EPA has issued an informational notice identifying the appropriate contact persons in EPA's Regional Offices who can answer questions concerning the due dates for the submission of a Part 71 permit application or related questions. See 64 Fed. Reg. 8,355 (1999).

176. See 64 Fed. Reg. 8,256-57.

177. Id. at 8,253.

178. Id. at 8,250.

179. 64 Fed. Reg. 8,263 (to be codified at 40 C.F.R. § 71.9(p)).

180. See id. at 8,262 (to be codified at 40 C.F.R. § 71.3(e)).

181. 64 Fed. Reg. at 8,257.

182. Id.

183. See id. at 8,251-53.

184. Id. at 8,256-57.

185. Id. at 8,257-58.

186. For a thorough review of the examination of Indian title, see "Access to Indian Land Records," paper 4 and the updated and revised version of "Examination of Title to Indian Lands" included with the materials at Tab 4.

187. 63 Fed. Reg. at 7,258; see also note 90, supra, concerning EPA's interpretation of the term "reservation." In Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505 (1991), Oklahoma asserted that tribal sovereign immunity did not bar the imposition of Oklahoma's assessment and collection of taxes on cigarette sales because those sales did not occur on a formally designated reservation, but rather on land held in trust for the Potawatomis. The Supreme Court rejected that argument stating:



Neither Mescalero nor any other precedent of this Court has ever drawn the distinction between tribal trust land and reservations that Oklahoma urges. In United States v. John, 437 U.S. 634 . . . (1978), we stated that the test for determining whether land is Indian country does not turn upon whether that land is denominated "trust land" or "reservation." Rather, we ask whether the area has been "validly set apart for the use of the Indians as such, under the superintendence of the Government."(188)

188. 498 U.S. at 511.

189. 63 Fed. Reg. at 7,258.

190. See, e.g., United States v. Adair, 111 F.3d 770 (10th Cir. 1997); Alyeska Pipeline Service Co. v. Kluti Kaah Native Village of Copper Center, 101 F.3d 610 (9th Cir. 1996); United States v. Cook, 922 F.2d 1026 (2nd Cir. 1991), cert. denied, 500 U.S. 941 (1991); Blatchford v. Sullivan, 904 F.2d 542 (10th Cir. 1990), cert. denied, 498 U.S. 1035 (1991) (announcing a four part test to determine whether an area qualifies as a "dependent Indian community"); United States v. Mound, 477 F. Supp. 156 (D.S.D. 1979).

191. 118 S. Ct. 948 (1998).

192. Id. at 951.

193. 101 F.3d 1286 (9th Cir. 1996).

194. Id. at 953.

195. Id. at 955.

196. Id. at 955, n. 6.

197. Id. at 956.

198. Id.

199. 118 S. Ct. at 954, n. 5.

200. Id. (emphasis in original).

201. 43 U.S.C. § 1601(b).

202. The history of the treatment of lands within the Uintah Reservation in Utah is instructive. In Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc), cert. denied, 479 U.S. 994 (1986), the Tenth Circuit Court of Appeals held that congressional enactments from 1902 through 1905 did not have the effect of diminishing the Uintah Valley Reservation. Subsequently, in Hagen v. Utah, 510 U.S. 399, 421-22 (1994), the Supreme Court disagreed with the Tenth Circuit's 1986 decision and ruled that the town of Myton, which had been established within the original boundaries of the Uintah Reservation when that reservation was opened to non-Indian settlement in 1902, was not "Indian country" and that Utah state courts thus had jurisdiction to prosecute an Indian for criminal activity occurring in Myton. Following that decision, the Ute Indian Tribe and Utah state and local governments continued to dispute the scope of their respective jurisdiction over the lands that had been opened to settlement during the 1902 through 1905 period. In Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997), cert. denied, 118 S. Ct. 1034 (1998), the Tenth Circuit ruled that it would not modify its 1986 judgment to the extent that it decided matters which were not addressed in Hagen and that it would not modify its earlier decision insofar as it concerned the Ute Indian Tribe's jurisdiction over National Forest Lands and the Uncompahgre Reservation. The Tenth Circuit did, however, modify its earlier decision with respect to the boundaries of the Uintah Valley Reservation to the extent that the lands within that reservation were unallotted, opened for settlement under the 1902 and 1905 acts and were not thereafter returned to tribal ownership.

203. See 40 C.F.R. § 71.5(a)(2) (1998) ("to be deemed complete, an application must provide all information required pursuant to paragraph (c) of this section . . ..").

204. See 40 C.F.R § 71.5(c)(4)(i). See also id. § 71.5(c)(5), (6), and (8).

205. 40 C.F.R. § 71.2 (1998).

206. See 42 U.S.C. § 7410(o).

207. See 63 Fed. Reg. at 7,263 (identifying instances in which EPA has not yet promulgated regulations to implement its statutory authority within Indian country including the absence of regulations governing certain permitting programs and regulations for standards governing certain categories of air pollution).