Treatment As a State (TAS) Under the Clean Air Act

Click Here to view the TAS Maps and Parcel List

In 1990, congress passed the Tribal Authority Rule (TAR) (Tribal Authority Rule (TAR) Under the Clean Air Act | US EPA), section 301(d) of the Clean Air Act (CAA).  The rule directs the Environmental Protection Agency (EPA) to “put into effect” regulations identifying parts of the CAA where it is “appropriate to treat Indian tribes in the same manner as states” and to allow federal funding for Tribes, as it had been to states, to address air quality problems (CAA §105).

On February 12, 1998, EPA finalized the 1990 TAR directive from Congress by formally identifying the steps, processes, and conditions under which Tribes would be treated in the Same manner As a State (TAS) under the CAA (Tribal Assumption of Federal Laws – Treatment as a State (TAS) | US EPA). 

Tribes may choose to take on “regulatory” authorities that may include an enforcement component, and/or “non-regulatory/administrative” authorities of the CAA (Tribes Approved for Treatment as a State (TAS) | US EPA). Tribes seeking approval for TAS authorities must submit information describing how they meet the following requirements:

  1. The Tribe must be “recognized” by the U.S. Federal Government
  2. The Tribe must demon a governing body that carries out substantial governmental duties and functions
  3. Demonstrate how delegations the Tribe is seeking to exercise pertain to the management and protection of the resources within the boundaries of Tribal lands
  4. Demonstrate that the Tribe is reasonably capable, or is preparing to be so, of carrying out the authorities being sought.

FCPC’s interest in obtaining Treatment As a State has been to exercise its sovereignty as a Government with the powers to oversee and manage the environment under its jurisdiction.  TAS provides the Tribe with a strong voice in decisions that affect its land, water, and air, similar to what sates have, through self-selected delegated authorities under the Clean Air Act (CAA) and the Clean Water Act (CWA).

FCPC’s TAS Authorities Sought Under the Clean Air Act:

On September 29, 2010, the US EPA approved FCPC’s July 2009 application for TAS for the following sections of the CAA:

  • CAA §105 – Eligibility for CAA Program Funding (Grant support for air pollution planning/control programs)
  • CAA §126 – Authorization (Interstate pollution abatement)
  • CAA §505(a)(2) – Affected State Authority  (Notification to contiguous States)

On January 31, 2013, FCPC submitted a supplemental application for the addition of the following Sections of the CAA:

  • CAA §107(d)(3) – Interim NAAQS Designations (Air quality control regions; Designations; Redesignation)
  • CAA 110(a)(2)(D) – Inclusion of “Affected State/TAS Tribe” in State Air Quality Implementation Plans (Air quality control regions; Designations; Designations generally; Promulgation by EPA of designations), and
  • CAA §169B – Establishment/Participation in Interstate Transport Region (Visibility)

The approval of the 2013 letter/application was delayed, but the delay provided time for FCPC to submit a subsequent letter (link to letter/documents – attachment 2014) to the Regional Administrator at EPA Region 5 on March 26, 2014, asking for the addition of one other authority to the list of authorities sought in the 2013 supplemental application, specifically:

  • CAA §107(d)(1)(B)(ii) – Notification of Change in NAAQS Designation (Air quality control regions; Designations; Designations generally; Promulgation by EPA of designations)

In December 2020, FCPC updated the information contained in the previous applications under EPA’s advice, including  the 2013 supplemental and subsequent 2014 application letters.  This effort included major upgrades and revisions to the FCPC land maps to include finer detail of Tribal lands, and include lands obtained since the original 2009 application to be included in this application.

On December 7, 2022, FCPC submitted the updated application and maps for consideration of TAS approval for these additional authorities under the CAA.

The map illustrates the 50-mile radius per FCPC land parcel identified for TAS under the authority of the CAA §505(a)(2), wherein a state must provide notification to “neighboring state” within 50 miles of an air pollution source when a Title V – Operation Permit is being issued/renewed. TAS designation also allows for FCPC to comment on a permit on a government-to-government level. (NOTE: area of notification for PSD – Prevention of Significant Deterioration – permits under FCPC’s 2008 Class I designation is greater and extends the distance as great as any modeled impact can be measured with accuracy).

Summary of CAA delegations granted and sought by FCPC:

FCPC Air Quality Program Delegations approved by the U.S. Environmental Protection Agency.

CAA §105 – Eligibility for Federal Air Program Grant Funding

Identifies Tribe as being eligible for the same grant funding provided to states to support air pollution planning and control programs.

CAA §126 – Interstate Pollution Abatement

Requires a state to make available to another state/tribe, 1) a list of large sources operating within 50 miles  of the state/tribe lands; 2) notification when a new source has been issued an air pollution permit for CONSTRUCTION; and 3) provides a state/tribe with the right to petition EPA for a finding if it believes that a source, or group of sources within another state may or would contribute to the non-attainment of the national air pollution standards within the petitioning state/tribes boundaries.

CAA §505(a)(2) – Affected State Status

Provides the Tribe with “Affected State” status – meaning that a state that issues, or re-issues an air pollution for the OPERATION of pollution source, is required to send notice to any potentially “affected states” within a 50-mile radius of the source.  And the “affected state” has an opportunity to submit written recommendations that the state issuing the permit must respond to in writing to the “affected state” and to EPA if the recommendations are not accepted into the air pollution permit.

Awaiting approval for the following delegations:

107(d)(1)(B)(ii)  – Air Quality Control Regions – Attainment Designations

Tribe is eligible to provide a demonstration of a recommendation to the EPA administrator on whether lands within the Tribe’s jurisdiction are in attainment or not for a newly established National Ambient Air Quality Standard (NAAQS).

CAA §107(d)(3) – Submit Recommendation of Attainment/Non-attainment of the National Ambient Air Quality Standards

Permits a state/TAS tribe the opportunity to submit its proposed designations for having met the air pollution standards that EPA then takes into consideration after reviewing the data submitted (for ozone, sulfur dioxide, carbon monoxide, nitrogen oxides, particulates, and lead).

CAA §110(a)(2)(D) – Inclusions Required in State Implementation Plans (SIPs) to Address Interstate Pollution Transport and Degradation of Air Quality in Another State/Tribe

Requires a state to include in its State Implementation Plan (SIP), provisions that prohibit any emissions from sources within the state from causing degradation of the air quality in other states/tribes (as regulated by section 126 above).

CAA §169(B) – Establishment of an Interstate Transport Region

Allows a state to petition EPA to establish an interstate transport region that includes the petitioning state if one or more other states are contributing significantly to the impairment of visibility, and to be a participating member of the interstate transport region commission.