Tom Arnold of Prism Consulting and James A. Westbrook of BlueScape, discuss EPA's recent rule adoption for permitting minor NSR and nonattainment major NSR facilities in Indian County, and the impact that these rules will have on existing and future facilities. Information is presented on how to address issues that may arise in project development, for diverse industry groups as well as agencies that include cities, counties and ports. For questions or support, Mr. Arnold can be reached at 415-939-8364. Mr. Westbrook can be reached at 877-486-9257 or www.bluescapeinc.com.

1. What Project Developers Need to Know about
the New Air Rules in Indian Country
James A. Westbrook and Tom Arnold
September 29, 2011

2. 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

3. Agenda
• Rule background
• How is Indian country defined?
• What are the requirements to be delegated
authority for issuing NSR permits?
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• How will Tribes develop a TIP?
• Who will set air quality standards?
• What will be the impact to developers and
existing facilities?
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• What other environmental programs have been
delegated to Tribal authority?
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4. 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”

5. 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.

6. Some Events and Consequences
Event 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.

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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
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• 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

16. 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

17. Summary
1. The FIP was published in the Federal Register on July 1,
2011 and became effective August 30, 2011.
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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.

18. Contact with Questions
James A. Westbrook, President
BlueScape, Inc.
858-774-2009 (cell)
jwestbrook@bluescapeinc.com
www.bluescapeinc.com
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