Published on September 29, 2011
What Project Developers Need to Know about the New Air Rules in Indian Country James A. Westbrook and Tom Arnold September 29, 2011
About BlueScape• 20 years experience with permitting, air modeling, modeling regulatory applicability compliance applicability, management• National Experience• Solve tough air quality compliance issues: - Determining rule applicability - Assess how to reduce impacts, change status - Develop monitoring, recordkeeping a d reporting e e op o o g, eco d eep g and epo g protocols - Agency negotiations
Agenda• Rule background• How is Indian country defined?• What are the requirements to be delegated authority for issuing NSR permits? y g p• How will Tribes develop a TIP?• Who will set air quality standards?• What will be the impact to developers and existing facilities? g• What other environmental programs have been delegated to Tribal authority? g y
Rule Background• July 1, 2011, EPA finalized a Federal Implementation Plan. – Ensure CAA permitting requirements applied consistently to facilities in Indian country – Put in place two remaining pieces of preconstruction air permitting for minor NSR and nonattainment major NSR – Establishes requirements for EPA to issue air permits or allow tribes to accept delegation or allows tribes to develop Tribal Implementation Plans• Consistent with EPA’s 1984 Indian Policy• Consistent with May 4, 2011 EPA policy on “Consultation and Coordination with Indian Tribes”
A Key Term – Indian Country• Indian country includes: – All lands within the limits of an Indian Reservation under the j i di ti th jurisdiction of th US government. f the t – All dependent Indian communities, such as the New Mexico Pueblos, and – All Indian allotments still in trust, whether they are located within reservations or not. – All lands owned by non Indians as well as non Indian non-Indians non-Indian towns with the boundaries of a reservation• The term is evolving to include lands containing natural resources belonging t h ld i t t b t l b l i to, held in trust by, appertaining to, or otherwise controlled by an Indian tribe.
Some Events and ConsequencesEvent Consequence• Redesignation to Class I • Reopened permit and required attainment area by Northern installation of wet scrubbers on Cheyenne Tribe. two units of the 2000 MW Coalstrip power plant located 15 miles from reservation border.• Challenge by State of Arizona • EPA upheld redesignation to redesignation of tribal land request by the Yavapi-Apache to Class I areas areas. Tribe• 9th Circuit court upheld EPA’s • Tribes may set new water quality finding that Tribes had standards to “tribal ceremonial tribal authority to regulate water quality” applying to all sources quality. regardless of land ownership, including trans-boundary flow trans boundary flow.
NSR Air Permits in Indian Country• Same as obtaining air permits from States or the federal government including: – Tribal governments can set the requirements and standards – Tribal governments can adopt the federal program – Tribal governments can make the program more restrictive• When partial delegation becomes f delegation full – Tribes must first achieve Treatment as State (TAS) status• Tribes with delegated CAA authority – Gila River Indian Community was first to develop TIP – Confederated Tribes of the Umatilla Indian Reservation – Y Yavapi-Apache T ib redesignated th i R iA h Tribe d i t d their Reservation t ti to Class I lands in 1996 – 38 Tribes have developed Environmental Laws and Codes
Tribal TAS leads to delegated NSR– T ib must d Tribes t demonstrate t EPA it has th resources t t to h the to administer a federal environmental program– Tribes must first achieve Treatment as State (TAS) designation – They must be recognized as a Tribe by the Secretary of the Interior S f h I i – Tribe’s governing body must be carrying out “substantial” duties and functions substantial – Tribe must have jurisdiction and capability to carry out the proposed activities.– Tribes can accept delegation of federal NSR program– Tribes can seek approval of Tribal Implementation Plan … may include enforcement authority
Tribal Implementation Plan ( p (TIP) )• Tribal choice to adopt a TIP based on tribal air program goals and values values.• By adopting a TIP, a tribe can set stricter A/Q standards, standards set permitting requirements and conduct requirements, enforcement.• TIPs are different from SIPs. TIPs SIPs – Are optional – Are modular – Have flexible submission schedules – Allow for joint Tribal and EPA management 9
TIP (continues) ( )• A TIP can include: – Preconstruction permitting for new & modified major sources – Preconstruction permitting of minor sources – Plan to attain NAAQS – Strategy to maintain or improve air quality – Strategy to attain regional haze goals St t t tt i i lh l• A TIP cannot include: – Hazardous Air Pollutants (HAPs) (Title III) – Acid Rain Programs (Title IV) – Stratospheric ozone protection program (Title VI) – Rules to control non-criteria pollutants, or – nuisance/odor/worker exposure rules 10
Setting Air Quality Standards• EPA’s 1984 Indian Policy recognized that tribes have: – Independent authority to set standards and manage environmental p g g programs on their reservations – Discretion to adopt federal NAAQS or develop and adopt stricter standards• Developers may be required to establish A/Q and meteorological monitoring networks
Tribal Air Quality Programs• 32 tribes have received TAS determinations• 2 tribes have approved TIPs (with other under review)• 1 tribe has received delegation to implement a Title V Operating Permit Program• 99 t ib receiving air grant support f tribes i i i t t from EPA• 78 tribes are conducting air monitoring with 52 submitting reports t EPA b itti t to• 56 tribes have completed reservation-wide emission inventories
Class I, II and III Area Designation , g• Tribal land redesignation allowed by CAA Amendments of 1977 – to protect air quality and – t protect Air Quality Related Values. to t t Ai Q lit R l t d V l• To date 6 Indian tribes have designated their lands as Class I Areas – Yavipi-Apache (AZ), Flathead (MT), North Cheyenne (MT), Fort Peck (MT), Spokane (WA) and Forest County Potawatomi (WI)
Impact on Existing Facilities p g• Source owner or operators will apply for new permits for new facilities and expansions of existing facilities• Permitting process may include – Site-specific, general, synthetic minor, minor NSR, major NSR, nonattainment NSR and PSD permits• Existing true or natural minor sources need to register w/in 36 months• Minor modifications at major sources need to apply effective August 30, 2011• Tribes with TAS standing may determine that additional A/Q analyses may be required or defer them until the source makes a change
Impact on New/Modified Facilities• No change from current NSR preconstruction requirements, projects will go through: • Case-by-case review of control technology • A/Q impact analysis (upon request) • MRR • Public participation and administrative and judicial review upon appeal p pp • Source registration• What is different is that review and management will transition to Tribal governments• We could see tribal-specific changes to A/Q standards and control technology requirements
Other Delegated Programs• Primarily tribes with TAS status have received delegation under the Clean Water Act as well as the Clean Air Act• Additionally 3 other laws allow tribes with TAS limited authority: • F d lI Federal Insecticide, Fungicide and R d ti id A t (FIFRA) ti id F i id d Rodenticide Act • Emergency Response and Community Right to Know Act • Comprehensive Environmental Response, Compensation and Liability Act Li bilit A t• EPA discretion also allows tribal management of the Resource C R Conservation and R ti d Recovery A t and th T i Act d the Toxic Substance Control Act
Summary1. The FIP was published in the Federal Register on July 1, 2011 and became effective August 30, 2011. g ,2. Tribal governments with TAS status may now request full delegation of the NSR permitting program for sources in Indian co ntr country.3. Tribal governments will have new authority to regulate on and off-reservation sources that could have a trans- boundary impact on tribal lands.4. Developers need to identify and develop working relations with t ib l governments where th h l ti ith tribal t h they have or plan l to locate new sources.
Contact with Questions James A. Westbrook, President BlueScape, Inc. 858-774-2009 (cell) firstname.lastname@example.org www.bluescapeinc.com p The Webinar presentation will be p p posted onSlideshare and Scribd (search for BlueScape)
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