Class I for Tribes

What Does Class 1 Redesignation Provide for Tribes

Class I redesignation provides increased protection for the quality of the air in and around tribal lands through smaller increments of allowable increases in the concentration of a pollutant. Perhaps more importantly, it opens up a place at the table for the tribe when a proposed pollution source applies for an air pollution application with the state. With Class I, a tribe is notified when a permit application has been submitted for review by the state. This enables the tribe to review the permit and provide comments and concerns about the permit while it is being negotiated with the state.

Permit applications must include an increment consumption analysis, a cumulative impact analysis and an AQRV analysis, providing the tribe with valuable information to determine the potential for any impacts. Comments provided by the tribe are also more weighted – meaning they carry more clout than comments from a tribe that does not have Class I. And if the tribe is not satisfied with the final permit that is issued by the state, the tribe has the option of disputing it through the USEPA.

What Does it Take to Redesignate

The requirements for redesignation are found in the Clean Air Act Section 164(b), 40 CFR 52.21(g) and 40 CFR 51.166(g), and include the following:

  • One public hearing/comment period must be held.
  • Notice must be given to States, Indian Governing bodies, and Federal Land Managers whose lands may be affected by the proposed redesignation.
  • Satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation shall be prepared and made available for public inspection and review by redesignating authorities (USPEA).
  • The Indian Governing Body adopts the redesignation.
  • The Indian Governing Body submits a proposal to redesignate to Class I to the USEPA Administrator.

The Clean Air Act does state that the Administrator may disapprove the redesignation ONLY if he finds that such redesignation does not meet the PROCEDURAL requirement.

Other Tribal Class I areas

*North Cheyenne Reservation – Montana

  • Request submitted 3/1977, designated 8/5/1977.
  • Requested Class I in an effort to challenge the construction of an additional coal-fired power plant locating 15 miles from the reservation.
  • Redesignation was challenged by the State of Montana.

*Confederated Salish and Kootenai Tribes – Flathead Reservation, Montana

  • Request submitted 7/1979, designated 7/2/1982.
  • Sought Class I redesignation in an effort to protect the ability to see sacred sites. Reduced visibility disrupted tribal member’s ability to communicate with past relatives and forefathers.
  • Not challenged by the states of Montana or Idaho.

*Assiniboine and Sioux Tribes – Fort Peck, Montana

  • Request submitted 1/1983, redesignated 4/9/1984.
  • Requested Class I in an effort to protect against a Canadian coal-fired power plant and several proposed synthetic fuel plants.
  • Not objected to by the States of Montana or North Dakota.

*Spokane Reservation – Washington

  • Request submitted 4/27/1988, designated 6/11/1991.
  • Uranium Mines operating in the area.
  • No objection from the states of Washington or Idaho.

Yavapai-Apache Reservation – Arizona

Forest County Potawatomi Reservation – Wisconsin

  • Request submitted 12/7/1993, designated 4/29/2008.
  • Requested in an effort to keep Exxon from developing a zinc/copper mine in Crandon, 5 miles from the reservation.
  • Challenged by the State of Michigan (within Class I radius), redesignation upheld by the 7th Circuit Court.

Kalispell Tribe of Indians – Washington

  • Request submitted 5/11/2017, designated 8/19/2019.
  • Requested in response to planned construction of a silicon smelter near reservation.
  • No objection from the state of Washington or other neighboring states.

*Joseph Drey, The Forest County Potawatomi Request Redesignation Under the Clean Air Act, 4 Wis.Envtl. L.J. 87, 87 (1997)