An Industry Lawyer's Perspective on Tribal Air Pollution Control Authority Under the Clean Air Act's “Treatment as States” Provision

As part of the 1990 amendments to the Clean Air Act (the “Act” or the “CAA”), Congress authorized the Administrator of the United States Environmental Protection Agency (the “EPA”) to “treat Indian tribes as States” under the Act.1 Specifically, the 1990 amendments established the minimum eligibility requirements for tribes to be treated as states and directed the EPA to “promulgate regulations...specifying those provisions of [the Act] for which it is appropriate to treat Indian tribes as States.”2 In response to that statutory directive, the EPA, on February 12, 1998, published its final rule (the “Tribal Authority Rule” or the “TAR”) setting forth “the CAA provisions for which it is appropriate to treat Indian tribes in the same manner as States,” establishing “the requirements that Indian tribes must meet if they choose to seek such treatment,” and providing “for awards of federal financial assistance to tribes to address air quality problems.”3

Among the many CAA programs for which EPA has determined that it is “appropriate to treat Indian tribes in the same manner as States” is the Title V operating permit program.4 Eligible tribes may, but are not required to, obtain approval to implement and enforce an operating permit program governing sources “within the exterior boundaries of the [tribe's] reservation or other areas within the tribe's jurisdiction.”5 Because