Pulling it All Together

Using This Training to Implement NSR

Laura McKelvey

OAQPS
NSR is an Important Air Quality 

Management Tool

• Supports attainment and maintenance of the NAAQS

• Puts source specific requirements in place

• Allows for public involvement in local decision making

• Provides clarity for sources on source operation
Roles for Tribes in NSR

• Remember: Tribes MAY develop TIPs for on-reservation 

NSR programs under the TAR

• Tribes can take Delegation of the Federal Program

• Tribes can comment and participate in permit 

development of Federal and State issued permits
All EPA Rulemakings:

• MUST go through public comment – Proposed rules are 

published in the Federal Register and EPA maintains a 

rulemaking docket (section 307(d))

– www.regulations.gov

• Citizens can petition the Court of Appeals for review of 

EPA rules (section 307(d)) -- courts can overturn EPA 

rules that are:

– Missing some bullet points here

• NOTE: SIP approvals are rulemaking actions and 

must undergo public comment 
Federal and EPA Policies

• EO 13084 on Consultation and Coordination with Indian Tribal 

Governments (13175 is newer?)

• Presidential (Bush) Memo Gov-to-Gov Relations w/ Native 

American Tribes

• EPA’s 1984 Indian Policy 

• EO 12898 and Memorandum on Environmental Justice

• Bottom Line: we are supposed to provide for 

meaningful Government to Government consultation 

on anything that has Tribal Implications
State Permitting

• All CAA permits require a notice and comment period 

(NSR and Title V)

• Generally each state requires (at minimum for major 

sources) notice by:

– Publication in a newspaper 

– 30 day comment period

• Permit Appeals

– Follow the state mechanism, but each state must have a 

mechanism for appeal

– As a general rule, only those who commented on the original 

permit can appeal the issuance of the permit
Citizen Suits (Section 304)

• Citizens can directly sue any source for:

– Violating permits 

– State or national standards

– Constructing a major emitting source without a permit

• Citizens can also sue EPA for failure to perform an act or 

duty that is not discretionary (section 304(a)(2))
Other options for Tribal Governments

A Tribe may seek “treatment in the same manner as a state” 

(TAS) status for most programs (TAR, 40 CFR part 49)

• TAS for Section 505(a)(2): When any Title V permit, within 50 miles of 

a reservation border in a contiguous state, may affect the air quality 

on the reservation, a tribe is entitled to notification, and an 

opportunity to comment on the application. If the permitting 

authority in that state fails to accept the Tribe’s recommendations, it 

must explain why in writing to the Tribe and EPA

• TAS for Section 126 entitles a tribe to additional notification rights for 

reviewing NSR permits; notifications on existing sources, and; the 

opportunity to petition the Agency that a source or group of sources 

emissions contribute to violations of the NAAQS on the reservation
Participating on Federal and State 

Permits is easier said then done!

• Establish relationships with permitting agencies

• Work with RO and HQ for technical support

• RO may need to lean on the states to encourage early involvement

• Ask RO for notification of the permit upon receipt from the state

• TAS for permit review to have notice “as an affected State”

• Talk to the state about adopting guidelines on issues like:

– Consultation

– Alternative site analysis

– See the Ten Commitments handout (?)

• Look in the Federal Register, local and state newspapers and 

websites to find out when new permits are proposed

• Submit written comments!!!

• Look for friendly environmental organization, groups or associations 

to leverage your work with

• Other ideas??