Step One: Assess Environmental Problems

STRATEGIC PLANNING FOR AIR QUALITY PROGRAMS ON TRIBAL LANDS

Adapted by:

American Indian Air Quality Training Program

Institute for Tribal Environmental Professionals

Northern Arizona University

P.O. Box 15004

Flagstaff, Arizona 86011

September 2004

Updated 2010

FOUR-STEP PROCESS

STEP ONE: ASSESS ENVIRONMENTAL PROBLEMS AND DETERMINE PRIORITIES

STEP TWO: SELECT OPTIONS FOR PROGRAM DEVELOPMENT AND DETERMINE THE ROLE YOU WANT TO PLAY

STEP THREE: DETERMINE BUDGETARY NEEDS AND PURSUE FUNDING

STEP FOUR: BUILD A PROGRAM AND ESTABLISH AUTHORITIES

STEP ONE:

ASSESS ENVIRONMENTAL PROBLEMS AND DETERMINE PRIORITIES

Identify who will assess current environmental problems on your land

Gather all existing data, both failures and successes

Gather new data

Determine priorities based on information gathered

ASSESSMENT: Who will assess?

The Tribal council may appoint an individual or group to gather information relating to the current environmental situation on Tribal lands and report back to the council.
Outside help may be available from trusted sources.

EXISTING DATA: What information is available and where do you look for it?

The assessment will involve gathering existing data related to all environmental problems to determine which are the most critical to your Tribe.

Gather data on all environmental issues that exist on your lands, even those that you don't perceive as a problem.
Data may be available from these sources:

Current Tribal records

US EPA and State files

Local industries located on Tribal lands

Conversations with residents who may be aware of past and present problems

Observational information (e.g., hazy sky, smokestacks)

NEW DATA: What other data are available?

Gather new data from other sources.

Request or require facilities to begin record-keeping, such as records on materials handled or stored, emissions generated, or materials shipped
Collect sampling data if possible:

Request or require facilities to sample their air emissions

Sample a particular medium of concern to your Tribe, such as ambient air quality or indoor air quality

Conduct a survey of the community—survey households and businesses on the number of cords of wood burned or amount of trashed burned.
These data will give an overall view of the issues of concern on your lands.

PRIORITIES: What are the most crucial issues to address, and in what order?

It is important in building an environmental program to set priorities for any problems you have identified. Now that you have done an initial assessment of the areas of concern on your lands, you will want to determine the priorities for addressing these concerns.
Consider the following impacts and ask the following questions:

HUMAN HEALTH IMPACTS: Who is currently affected and how severely? For example, radon in homes may have a greater impact on health than a downwind power-generating station

ECOLOGICAL IMPACTS: What long-term effects may there be to local species? Are there plants and animals on your lands that are especially important, that must be individually protected?

ECONOMIC IMPACTS: How does the problem affect the economic livelihood of the Tribe? For example, if poor air quality affects human health, this impacts potential workers. Or, if local fishing is a major food source, what would be the impact of the loss of a fishery due to air pollution?

CULTURAL IMPACTS: What impact does a particular problem have on areas of cultural significance?

These impacts should be considered when determining which issue or issues need to be addressed in the development of your environmental program, and also in relation to any Federal government support program.
It is important to identify problems that should be addressed over the long term.

STEP TWO:

SELECT OPTIONS FOR PROGRAM DEVELOPMENT

AND DETERMINE THE ROLE YOU WANT TO PLAY

OPTIONS:

Regulatory approach
Non-regulatory approach
Combination

ROLES:

Pursue formal program delegation
Rely on EPA authority
Share administrative responsibility with EPA

OPTIONS: (As an example, let us assume the tribe decides that air pollution management is a problem of high concern and a priority for tribal action.)These are the basic options available:

Regulatory approach: A regulatory program provides the most control but might be too complicated or expensive to pursue. More details about writing regulations will be discussed later.
Non-regulatory approach: A non-regulatory approach may be less complicated to implement but provides no enforceable controls. Mechanisms may include:

Public education and outreach. For example, use public meetings or informational materials to inform the community about health risks from burn barrels.

Guidelines and voluntary compliance. For example, issue guidelines about what kinds of household waste should not be burned, such as aerosol cans.

3. Combination: An approach using both regulatory and non-regulatory

mechanisms may also be a solution.

For example, an air pollution management program could include regulations to manage burn barrels and a public education program regarding recycling and disposal in central collection boxes instead of using burn barrels.
A tribe may also choose to work with other tribes or local municipalities to resolve an issue.

ROLES: The tribe needs to examine the role and level of involvement it wants to have in the proposed solution. Three principal roles are available:

Pursue formal delegation of the corresponding Federal program from EPA:

For some federal environmental programs, the government can delegate its authority to Indian tribes to implement these programs to the same extent that it can delegate it to states.
A tribe may want to pursue this option where it has the interest and expertise to take on this role.
Generally, pursuing delegation is a complex process.
Program delegation has the advantage of giving the tribe maximum responsibility for environmental regulation within its jurisdiction.

Rely on EPA authority:

A tribe may choose to decline delegation because the federal program is too broad for the problem at hand or because the tribe lacks the resources to successfully carry out all of the responsibilities of the delegation.
In the absence of any tribal program or delegation, federal standards apply on Indian lands, and EPA retains enforcement authority.

Share administrative responsibility through cooperative agreements with EPA.

Under Role # 1(delegation) or Role # 3 (cooperative agreement), a Tribe may choose to enact laws and regulations more stringent than the EPA requirements.

TO BE CONSIDERED:

The non-regulatory activities (education) a Tribe may want to do are available to it in either the delegated or EPA-only options.

REMEMBER

A LOT OF ENVIRONMENTAL PROTECTION CAN GO ON IN THE ABSENCE OF A FEDERAL PROGRAM!

ALL THAT IS NEEDED IS A TRIBAL ORDINANCE, REGULATIONS AND AN ORGANIZATION TO MAKE IT WORK!

THE PROGRAM SHOULD MEET THE TRIBE'S NEEDS AND OBJECTIVES

IT IS IMPORTANT TO KEEP A LONG-TERM PERSPECTIVE FOR THE PROGRAM

RE-EVALUATE THE PROGRAM AS EXPERIENCE IS GAINED AND CONDITIONS CHANGE

STEP THREE:

DETERMINE BUDGETARY NEEDS AND PURSUE FUNDING

Program needs

2. Potential funding sources

3. Leveraging resources

PROGRAM NEEDS:

Budget:

This section applies to all environmental programs, regardless of the type of program – regulatory or non-regulatory.

A budget must be developed concurrently with program planning. The size of the budget will depend on the type of program. Additionally, the decision on the type of program that a Tribe undertakes will be affected by budgetary constraints. For example, if a Tribe chooses to rely on EPA authority and share administrative responsibility for a particular issue, a single part-time position may satisfy the personnel needs of the program. If a Tribe chooses to pursue delegation, a larger staff of administrative, technical, and management personnel may be needed. A Tribe will choose not to pursue delegation if it cannot afford the staff that would be required.

Personnel:

Management: The program will need, at a minimum, one person to manage it. The number of managers and levels of management required will depend on the program's size and complexity.
Administrative staff: Clerical staff, bookkeepers, accountants, or a financial manager.

Technical staff: The number and type will depend on the Tribe's scope of responsibility. The following may be included:

People who will develop or review technical materials or make technical judgments, such as engineers and technicians.

People who do not have a scientific or engineering degree, but who can understand and interpret regulations.

People who participate in other aspects of implementation. For example, a public education program might require people who can write brochures and design fliers.

Equipment:

Depending on the size and responsibilities of the staff, the program may need new office space or may be able to work with existing space.

Office equipment will include telephone, copier, fax machine, computers, and furniture.

A Tribe may have other equipment needs that will vary over the life of the program, for example, sampling equipment or safety equipment.

Vehicle needs should also be considered. For example, inspectors are likely to need cars or pickup trucks.

POTENTIAL FUNDING SOURCES:

a. Federal Agencies

Environmental Protection Agency (EPA)
Bureau of Indian Affairs(BIA)
Indian Health Service (IHS)

Administration for Native Americans (ANA)
Department of Housing and Urban Development (HUD)
Another source of information on Federal grant programs is the Catalog of Federal Domestic Assistance. This catalog is compiled by the US General Services Administration and can be found on-line at

b.Fees and other Tribal Revenue

A Tribe should also examine whether it can provide funding through fees or other Tribal sources. For example, a Tribe may charge a fee for permit applications.

Fees can be charged for services.

Funds can also be provided from Tribal taxes or levies.

Tribes should consider the "polluter pays" approach. Facilities engaging in regulated activities would pay a fee. The fee would be set according to the funding needed to support the environmental program.

c. Other sources:

Universities
Foundations

LEVERAGING RESOURCES:

Pursue cooperative agreements to supplement primary funding and to leverage resources.
Consider joint approaches with other Tribes and non-Tribal governments.

STEP FOUR:

BUILD A PROGRAM AND ESTABLISH AUTHORITIES

Build an infrastructure

Develop a regulatory program

Write regulations

1. BUILD AN INFRASTRUCTURE

Determine the basic structure of the organization. Will it be managed by one person or by a commission? (The internal structure will probably be determined later, after the organization has a clearer idea of its plans and staffing needs.)

The Tribe should form an administering authority or organization to report to the Tribal Council or other Tribal administrative body.

The official relationship to Tribal government must be defined and agreed upon.

The Tribal government should establish the roles and responsibilities of the organization.

The organization should have the authority to enforce rules and regulations, hire and fire personnel, enforce relevant Tribal codes, and spend money appropriated by the Council or received in the form of grants.

Determine what levels of review are necessary and who has the overriding authority.

The roles and responsibilities of the administering authority may be further refined once a program is clearly defined by new tribal environmental regulations.

2. DEVELOP A REGULATORY PROGRAM

Define the scope of your program

Determine how you are going to implement the requirements of your program

Determine how you are going to monitor regulated activities

Determine enforcement mechanisms

SCOPE: How complex are you prepared to be?

Institutionalizing a regulatory program is the most complex approach
Consider the decisions you need to make to ensure that the program you develop is one that:

meets your needs and objectives

ensures compliance with federal rules

protects human health and the environment (HHE)

A Tribe should first determine what to control, that is, what aspects of an environmental issue or problem it wants to address in regulations.
A Tribe should also define the scope of its authority. For example, if it decides to regulate the use of burn barrels, what aspects of their use will be regulated – restricted burn days, restrictions on what can be burned, or prohibiting their use completely?

IMPLEMENTATION OF PROGRAM REQUIREMENTS: What degree of control do you want?

There are a number of ways a Tribe can impose requirements on the regulated community. These implementation options differ in terms of the degree of control they offer.
Permits

A permitting program requires Tribal approval before a regulated party can undertake certain activities.

Permits identify the standards that apply to a specific facility.

Permits provide strong controls because they can be tailored to each facility, but they also usually require trained technical staff to write the permit conditions and negotiate with the facilities receiving the permits.

Licenses

Licensing generally is less complicated than permitting, but would still allow for some Tribal oversight of regulated parties.

In general, licenses would be issued after showing that certain qualifications have been met.

Licenses are usually not tailored for each person who receives one.

Licensing provides less control than permitting, but more than notification.

Notification

Under a notification program, facilities with certain characteristics would be required to notify the regulatory agency that they are within that regulated group.

Notification provides even less control.

Self-implementing Regulations

A Tribe could impose standards and other requirements that would be implemented without any direct interaction between the Tribe and the regulated party, i.e., a regulated facility would have to comply with established standards even though no permit, license or notification was required.

Initially, it may appear that a self-implementing program would be easiest for a Tribe to administer because most of the burden falls on the regulated party to determine what the standards require and how to comply with those standards. To be successful, however, this type of program requires not only close cooperation between the regulated party and the Tribe, but also distribution of information about the relevant requirements and the importance of complying with those requirements. It also calls for an effective and credible enforcement program.

MONITORING REGULATED ACTIVITIES: How does the Tribe ensure compliance?

There may be specific legal authorities for compliance monitoring that a Tribe will need to address, for example, the right of access to facilities, the right to inspect records, or the right to require facilities to sample. The Tribe will want to ensure that it has these legal authorities.

Inspections

Inspections involve periodic visits to review a facility's operation and to ensure that it is complying with applicable requirements.

A Tribe may want to specify the frequency with which inspections are to be performed.

There are several different types of inspections the Tribe may want to include in its plan for compliance monitoring and enforcement. Different types of inspections may be appropriate at different times or for different problems.

A compliance inspection is an audit to ensure the Tribe's requirements and standards are being met. It can be a simple visual inspection to ensure that air pollution controls are in place on smokestacks or it could be a complicated technical investigation to analyze the concentrations of pollutants in smokestack emissions.

A Tribe might want to conduct a more limited inspection to investigate a particular problem or situation. For example, a Tribe may use an expert air quality technician to evaluate the air quality near a facility.

Some inspections may involve sampling. This would involve taking samples of air to determine pollutant levels.

Self-certification

Self-certification happens when a facility certifies that it meets a requirement or standard. If, in reviewing the facility's records or inspecting the facility, the self-certification statement is found to be false, the facility may be subject to criminal penalties for falsifying documents. However, without strong enforcement, this type of program may not work.

ENFORCEMENT MECHANISMS: What can be done if a facility is out of compliance?

In establishing enforcement procedures in an environmental program, a Tribe must review what legal options are available to it through its existing Tribal code, and determine whether new authorities are needed.
Generally, an environmental program will include provisions for both civil and criminal sanctions.
A Tribe can include civil sanctions in its environmental program for infractions of Tribal law:

Administrative sanctions are civil sanctions in which the regulating agency would directly enforce against violators.Administrative sanctions could include warning letters, notices of violations, administrative orders, or monetary penalties.

Judicial sanctions can be used to require compliance. In addition, courts have the authority to place restraining orders to limit or prohibit facilities from performing their business functions, if they are presenting a hazard.

A Tribe should also have the authority to impose criminal sanctions against those violators over whom the Tribe has criminal jurisdiction (all Tribal members). As an example, the Cherokee code contains criminal penalties for those who are subject to criminal jurisdiction in its courts (Cherokee tribal members) and civil penalties for those not subject to its jurisdiction (all non-Tribal members).

3. WRITE REGULATIONS

Incorporate Federal code by reference

Adopt Federal code verbatim

Write a new code

Once a Tribe has outlined the components to be included in its environmental program (standards, implementation options, compliance monitoring and enforcement methods), a Tribal code needs to be written. The code will document, in an organized manner, the standards and requirements the Tribe has decided to adopt.

Writing a clearly stated code is essential for enforcement.