When an Indian tribe decides to become involved in a program to improve tribal air quality, it is important that a tribe determine the following elements:
| Needs: the current status of air quality on its reservation |
| Solutions: the programs most likely to relieve the air quality problems |
| Resources: the resources, including funding, personnel, and expertise, available to the tribe for program implementation. |
Based on an initial assessment of these factors, a tribe can develop an action plan for proceeding. The process of assessing needs, solutions, and resources is an iterative one; for example, as more resources are available, more data can be collected to determine the needed areas for air quality improvement. In addition, after a tribe determines a proposed solution, it may be better able to apply for and receiving funding.
Chapter 2 pointed out that the CAA is composed of a large number of different programs that focus on different aspects of air quality regulations. Chapter 3 pointed out that under the CAA, tribes have a variety of options in regard to the kind and amount of legal authority they may assume over air quality enforcement. The purpose of this chapter is to provide an overview of considerations for deciding which programs to implement and what level of involvement to assume. Once a tribe has made those initial decisions, the remaining chapters of this Handbook provide detailed information on implementing the different programs, (e.g.; permit programs are described in Chapter 7, an enforcement program is detailed in Chapter 11, types of programs to control off-reservation pollution are in Chapter 10). Whatever a tribe decides on at this point, they should approach CAA implementation as one of incremental development. The CAA allows tribes to assume additional responsibility when they feel ready to do so and to build a program block by block. This is the way most states built their programs, over many years.
In many cases, a tribe will know what its most significant air quality issues are, because it lives with them every day. Regardless, it is important to begin by collecting as much hard data as possible. These data fall into several different categories and may or may not already exist for a particular reservation, depending on where a tribe is located and how active other governmental entities have been in that geographic area.
These are the basic data on the air on the reservation, broken down by the different pollutants. These data may be available from several different sources. AISES has collected data from various national and regional studies conducted by EPA, has broken the information out by reservation, or at least by the counties within which the reservation is located. The information, on a reservation-by-reservation basis is available in the AIRE database. For tribes located in more densely populated areas, the relevant data should be available from the local air pollution control agency or from the state agency. Tribes located in remote areas may find that the only data available on its reservation are from the state agency and cover a broad segment of the state. This may be of limited value in helping a tribe determine its problem areas.
A second question is how current and thus how accurate are the available data. Again, for tribes located near more densely populated areas, there are likely ambient air quality monitors located on or near the reservation. These will generate data on a regular, current time basis. For tribes located in rural areas; the data are several years old, they may or may not provide an accurate picture of the reservation’s air quality.
If a tribe is unable to obtain sufficient data to enable it to decide where it should focus its air quality program, it should consider making its first step that of creating its own data by placing monitors on the reservation or contracting with state or local agencies that have the necessary equipment. Chapter 6 provides a detailed discussion on the existing air quality monitoring network and of steps to take when starting additional monitoring. EPA has conducted some pilot monitoring on a handful of reservations around the country. The lessons they learned from this could be helpful to any tribe planning to proceed down that path. Therefore, it is recommended that tribes intending to conduct a monitoring effort begin by accessing resources at the EPA regional office.
Using the data collected during the information-gathering phase, a tribe should then identify the air quality problems of greatest importance. Clearly one area of great concern would be if the data show that the reservation is a non-attainment area for one or more of the six pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS). A related area of concern would be if the data indicate that the reservation has hazard air pollutants (toxics) in excess of the EPA standards.
Another possible problem area the data might identify is regional haze, which impairs visibility. This could negatively impact tourism, and hunting and fishing, as well as harms the quality of reservation life and interfere with religious and cultural requirements. A related potential area of concern is pollution that is causing deposition or eutrophication of bodies of water on the reservation; that is, making them unsuitable for the appropriate plant and animal life by reducing the availability of oxygen. Because hunting, fishing and other subsistence activities are often more important on reservations than elsewhere, such adverse environmental impacts could be a very high priority problem for a tribe.
Finally, it is possible the data will show that the reservation does not face any violations of EPA’s standards, but that there are still problems that undermine the quality of life. For example, open burning may not create enough pollution to violate the NAAQSs but could be perceived as an undesirable activity that a tribe wants to reduce through regulation.
Unless a tribe already knows that there are no pollution sources on its reservation, its first step in determining the causes of the problems identified during the problem-identification phase of the "getting started process" should be to conduct an emissions inventory. To conduct an emissions inventory, a tribe would identify and collect data on each source of pollution contributing to the problems that tribe has identified as priorities. For major sources, EPA should already have detailed data on how much of each of the six NAAQS pollutants each major source emits, the timing of their release and other useful data. For minor sources, a tribe likely will have to start from scratch as a national reservation inventory of minor sources has not yet been developed.
Because tribes have CAA jurisdiction over their entire reservation, not just the Indian lands, for the emissions inventory, data are collected from sources on non-Indian as well as Indian land. In addition, a tribe should include emissions from major sources outside of the reservation boundary that potentially impact the reservation. One problem that could arise is that a tribe does not exercise delegated CAA authority over the entire reservation until it has received TAS status from EPA. Yet it needs data on the non-Indian as well as Indian sources of pollution in order to get ready to apply for TAS status. If a non-Indian source is unwilling to provide data voluntarily, a tribe can try to use the court system, seeking the data pursuant to its own sovereign authority on the grounds that the information is necessary to protect the health of the reservation, such that is meets the U.S. v Montana criteria. There are two simpler alternatives: one is to ask EPA for assistance since EPA clearly has the necessary authority over all reservation sources of pollution; the second is to develop an emissions estimate using surrogate data (e.g., for a power plant of known capacity use available data from a similar plant).
Chapter 5 provides detailed information on how to conduct an emissions inventory. Because EPA and AISES have conducted pilot emissions inventories on reservations, again, the EPA regional office and AISES would be a good place to get technical assistance prior to embarking on an emissions inventory effort.
If the pollution sources that affect a tribe are located off the reservation, then a reservation’s emissions inventory will need to include them. A tribe can obtain data from air quality agencies in the surrounding states and from EPA. All of these data are public and much of them are available in various data bases on the World Wide Web. If the problem is regional haze, a tribe should check with EPA to determine if there is a regional committee or commission working on that problem in its region, such as the Grand Canyon Visibility and Transport Commission.
Once a tribe has an initial understanding of the problems it is facing, the next step is to examine the programs required to deal with those problems. After that, a tribe can assess if these are the kinds of programs the tribe has the desire, finances, and administrative structure to operate. For example, if the major problem is pollution transported onto the reservation from outside sources, one response for a tribe could be to establish the reservation as a class I area, which would compel the off-reservation sources to meet higher standards. However, because the reservation will be subject to those same higher standards, a tribe needs to decide if it wants to place those kinds of limits on reservation development. Class I designation, discussed in more detail in Chapter 10, also tends to create adversarial relationships with the off-reservation governments and businesses. Chapter 10 also discusses other ways to influence off reservation sources.
If the problem is open burning, one solution would be for a tribe to adopt an open burning ordinance. However, a tribe needs to consider such factors as what alternative disposal sources are available. If the primary problem is a few or more major sources, one solution is for a tribe to adopt a Title V permitting program (see Chapter 7), which enables a tribe to exercise comprehensive regulation over those sources. The tribe will be able to impose permit fees on those sources to pay for the tribe’s permit program. However, such a program is a complex one, requiring extensive technical capability. A tribe therefore needs to decide if it is prepared to add a major new component to its administrative structure, given the additional workload that will place on the executive leaders, the finance and personnel offices, the courts and the council.
The remaining chapters of the handbook have detailed discussions of what is involved in implementing and operating each of these programs. They provide the basic information a tribe needs to determine whether it wishes to establish the program.
As discussed in Chapter 3, a tribe has a range of options in regard to the level or degree of involvement it has in administering any of the CAA programs. It can assume treatment as state authority for all CAA programs subject to TAS, it can assume TAS authority just for some programs (so long as they are severable from those EPA continues to operate), it can assume delegated authority from EPA, it can serve as a contractor to EPA, it can enter into cooperative relationships with state or local air regulation programs to have them perform the work for the tribe but with the tribe retaining ultimate authority, it can serve as a resource to EPA without assuming any CAA authority, can operate strictly under tribal sovereign authority, or can create some combination or variation of these approaches.
At the same time it is determining which programs to establish, a tribe needs to decide what level of involvement it wishes to have in those programs. If a tribe concludes it needs a comprehensive CAA program, then it will need to be prepared to commit the resources involved in developing a both a comprehensive Tribal Air Plan (TAP) and a Tribal Implementation Plan (TIP). A TIP is required to implement programs for achieving or maintaining NAAQS compliance. It may conclude that it wants to focus on the one CAA program that is relevant to its reservation. In that case, it may submit a much less complex TAP, and obtain authority to implement non-NAAQS programs.
In the alternative, a tribe may conclude that while implementation of a particular program component is essential, the tribe is not prepared to make the financial and administrative commitment to operate the program fully by itself, or perhaps that it lacks the court and other enforcement systems needed to make the program work. One option is to check with the state air quality regulatory body about the possibility of that agency providing the administrative services on behalf of a tribe under a TAS delegation. There have been instances where a tribe and state environmental offices have been able to develop very productive and cooperative working relationships. In the alternative, it could seek to enter into a memorandum of agreement with EPA, under which a tribe would perform much of the on-reservation tasks involved, but EPA would retain authority and handle the other aspects of program implementation that the tribe is unable or unwilling to assume. As Chapter 3 indicates, there are so many options that a tribe should be able to find an approach that puts an effective program in place to address the problem the tribe identified, while working within the resources the tribe has available for its own participation in that program.
Another factor that needs to go into the equation regarding the programs a tribe will operate and the level of involvement in that operation, will be the amount of financial and technical assistance available. Chapter 12 provides a detailed discussion of the funding available, primarily from EPA. Sources of technical assistance are less structured. The EPA regional offices can be of great assistance, but their ability to provide in-depth support is limited by staff and budget constraints. As indicated, state and local air regulatory agencies can be a useful source because they are already implementing clean air programs and are familiar with the local area. EPA has also funded several sources of technical assistance. Foremost among these is the Northern Arizona University American Indian Air Quality Training Program which can allow tribal staff to get training on key topics in the clean air program.
A number of tribes have already gone through the process of deciding how to get involved in CAA regulatory activity and then implementing their decisions. Their approaches are as varied as their tribes are. However, their experiences can be useful to tribes just beginning that process. This section provides brief case histories on different ways tribes tapped the resources available at the Federal, state, and local levels.
Collecting basic data is an essential prerequisite to designing a good program. State and local agencies are already in the business of air monitoring, so that tribes can tap their expertise and equipment, rather than having to reinvent the wheel. The Lac Du Flambeau Tribe did just that. It entered into a cooperative agreement with the State of Wisconsin Department of Natural Resources (WDNR) to establish a sulfur dioxide monitoring station on the reservation. Under the agreement, the WDNR loaned the Tribe the equipment, set it up on the reservation, and trained a tribal member to operate it. The Tribe was responsible for site preparation and routine operation of the monitoring station. WDNR assisted the Tribe in developing the quality assurance plan to validate the data produced by the station under EPA guidelines. The Tribe paid the WDNR a relatively small sum for the services it provided. The agreement clearly stated that by entering into the arrangement, neither party infringed on the sovereignty of the other.
The Lac Courte Oreilles Tribe enacted an open burning ordinance to restrict what could be burned, how it could be burned and when it could be burned. The ordinance provides, among other things, that no open burning may occur unless the party had first received a Burning Permit from the Wisconsin Department of Natural Resources. The ordinance is enforced by the Tribe’s Conservation Department.
The Tulalip Tribes are located in the greater Seattle/Tacoma corridor, a densely populated and heavily industrialized area. Air quality on non-reservation land in that corridor is regulated by the Puget Sound Air Pollution Control Agency. The Tribes’ goal is to develop a comprehensive air regulatory program. The Tribes and the Agency entered into a comprehensive agreement under which the Agency would
| assist the Tribes in developing its Tribal Implementation Plan |
| provide the Tribes with training and technical assistance in carrying out an air quality monitoring program |
| train and provide technical assistance to the Tribes’ staff to help them meet the capability levels required in order to receive TAS status |
| maintain the Tribes’ data in the Agency’s record keeping system, with the Tribal staff having access to it at any time, and |
| assist the Tribes in developing a permit system for new and existing air emissions sources. |
The Agreement also provides for a coordinate ban on outdoor burning when fire danger is high.
The State of Arizona Department of Environmental Quality promulgated a policy that sets out the basic principles ADEQ will follow in regard to tribal governments. It begins by stating that the environmental integrity of entire ecosystems cannot be regulated in isolation because pollution is not restricted by political boundaries. As a result, ADEQ and the tribal governments have a practical interest in assuring adequate environmental regulation. At the same time it recognizes tribal sovereignty and provides that ADEQ will not assert authority over Indian country. The policy then goes on to provide that the ADEQ will assist tribes to develop their environmental programs, will open its training programs to tribal officials and staff, share data and generally work cooperatively with the tribes in the State.