[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR49.7]

[Page 717-718]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 49--TRIBAL CLEAN AIR ACT AUTHORITY--Table of Contents
 
                       Subpart A--Tribal Authority
 
Sec. 49.7  Request by an Indian tribe for eligibility determination and Clean Air Act program approval.

    (a) An Indian tribe may apply to the EPA Regional Administrator for 
a determination that it meets the eligibility requirements of Sec. 49.6 
for Clean Air Act program approval. The application shall concisely 
describe how the Indian tribe will meet each of the requirements of 
Sec. 49.6 and should include the following information:
    (1) A statement that the applicant is an Indian tribe recognized by 
the Secretary of the Interior.
    (2) A descriptive statement demonstrating that the applicant is 
currently carrying out substantial governmental duties and powers over a 
defined area. This statement should:
    (i) Describe the form of the tribal government;
    (ii) Describe the types of government functions currently performed 
by the tribal governing body such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (iii) Identify the source of the tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Indian tribe's authority to 
regulate air quality. For applications covering areas within the 
exterior boundaries of the applicant's reservation the statement must 
identify with clarity and precision the exterior boundaries of the 
reservation including, for example, a map and a legal description of the 
area. For tribal applications covering areas outside the boundaries of a 
reservation the statement should include:
    (i) A map or legal description of the area over which the 
application asserts authority; and
    (ii) A statement by the applicant's legal counsel (or equivalent 
official) that describes the basis for the tribe's assertion of 
authority (including the nature or subject matter of the asserted 
regulatory authority) which may include a copy of documents such as 
tribal constitutions, by-laws, charters, executive orders, codes, 
ordinances, and/or resolutions that support the tribe's assertion of 
authority.
    (4) A narrative statement describing the capability of the applicant 
to administer effectively any Clean Air Act program for which the tribe 
is seeking approval. The narrative statement must demonstrate the 
applicant's capability consistent with the applicable provisions of the 
Clean Air Act and implementing regulations and, if requested by the 
Regional Administrator, may include:
    (i) A description of the Indian tribe's previous management 
experience which may include the administration of programs and services 
authorized by the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25 U.S.C. 
2101, et seq.), or the Indian Sanitation Facility Construction Activity 
Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the tribal governing body and

[[Page 718]]

a copy of related tribal laws, policies, and regulations;
    (iii) A description of the entity (or entities) that exercise the 
executive, legislative, and judicial functions of the tribal government;
    (iv) A description of the existing, or proposed, agency of the 
Indian tribe that will assume primary responsibility for administering a 
Clean Air Act program (including a description of the relationship 
between the existing or proposed agency and its regulated entities);
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective air quality program 
or a plan which proposes how the tribe will acquire administrative and 
technical expertise. The plan should address how the tribe will obtain 
the funds to acquire the administrative and technical expertise.
    (5) A tribe that is a member of a tribal consortium may rely on the 
expertise and resources of the consortium in demonstrating under 
paragraph (a)(4) of this section that the tribe is reasonably expected 
to be capable of carrying out the functions to be exercised consistent 
with Sec. 49.6(d). A tribe relying on a consortium in this manner must 
provide reasonable assurances that the tribe has responsibility for 
carrying out necessary functions in the event the consortium fails to.
    (6) Where applicable Clean Air Act or implementing regulatory 
requirements mandate criminal enforcement authority, an application 
submitted by an Indian tribe may be approved if it meets the 
requirements of Sec. 49.8.
    (7) Additional information required by the EPA Regional 
Administrator which, in the judgment of the EPA Regional Administrator, 
is necessary to support an application.
    (8) Where the applicant has previously received authorization for a 
Clean Air Act program or for any other EPA-administered program, the 
applicant need only identify the prior authorization and provide the 
required information which has not been submitted in the previous 
application.
    (b) A tribe may simultaneously submit a request for an eligibility 
determination and a request for approval of a Clean Air Act program.
    (c) A request for Clean Air Act program approval must meet any 
applicable Clean Air Act statutory and regulatory requirements. A 
program approval request may be comprised of only partial elements of a 
Clean Air Act program, provided that any such elements are reasonably 
severable, that is, not integrally related to program elements that are 
not included in the plan submittal, and are consistent with applicable 
statutory and regulatory requirements.