[Senate Hearing 107-614]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-614
 
      REGULATE AIR QUALITY ON THE SOUTHERN UTE INDIAN RESERVATION
=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                                S. 2065

  TO PROVIDE FOR THE IMPLEMENTATION OF AIR QUALITY PROGRAMS DEVELOPED 
  PURSUANT TO AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE SOUTHERN UTE 
INDIAN TRIBES AND THE STATE OF COLORADO CONCERNING AIR QUALITY CONTROL 
                 ON THE SOUTHERN UTE INDIAN RESERVATION

                               __________

                             JULY 18, 2002
                             WASHINGTON, DC






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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman

            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota            FRANK MURKOWSKI, Alaska
HARRY REID, Nevada                   JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota        ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota            JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington

        Patricia M. Zell, Majority Staff Director/Chief Counsel

         Paul Moorehead, Minority Staff Director/Chief Counsel

                                  (ii)







                            C O N T E N T S

                              ----------                              
                                                                   Page
S. 2065, text of.................................................     2
Statements:
    Brown King, Fran, division head, Environmental Programs 
      Division, Southern Ute Indian Tribe, Ignacio, CO...........     8
    Burch, Leonard, chairman, Southern Ute Indian Tribe, Ignacio, 
      CO.........................................................     7
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     1
    Fagan, Renny, Deputy Attorney General, State of Colorado, 
      Denver, CO.................................................    10
    Maynes, Sam W., attorney for tribes..........................     9

                                Appendix

Prepared statements:
    Brown King, Fran.............................................    19
    Burch, Leonard...............................................    17
    Fagan, Renny (with letter)...................................    20
    Whitman, Christie Todd, administrator, U.S. Environmental 
      Protection Agency (with letter)............................    22


      REGULATE AIR QUALITY ON THE SOUTHERN UTE INDIAN RESERVATION

                              ----------                              


                        THURSDAY, JULY 18, 2002


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 11:36 a.m. in 
room 485, Russell Senate Building, Hon. Ben Nighthorse Campbell 
(vice chairman of the committee) presiding.
    Present: Senator Campbell.

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
      COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Campbell. If we could proceed, we still have 
another bill to go.
    Those who are concerned about water can leave, and those 
who are concerned about air, stay. [Laughter.]
    We will now receive testimony on legislation that I 
introduced along with Senator Allard in March, 2002. The bill 
is S. 2065, and it provides for the Congressional ratification 
of an agreement entered into by the State of Colorado and the 
Southern Ute Tribe. After many years of negotiations, I am very 
pleased that the parties were able to reach an agreement and 
that the Environmental Protection Agency has endorsed this 
agreement.
    [Text of S. 2065 follows:]
      
      

  
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    Senator Campbell. Before we proceed, let me make just a 
couple of points.
    The Clean Air Act clearly authorizes Indian tribes to 
exercise jurisdiction over all the lands within their 
reservations, even the non-Indian fee lands on the 
reservations. Tribes have both the inherent right to exercise 
jurisdiction, and the Clean Air Act, itself, includes 
procedural and other protections to ensure that this authority 
is exercised in a fair and responsible manner.
    With respect to the Southern Ute Tribe, however, a statute 
enacted in 1984 appears to prevent the tribe from exercising 
inherent jurisdiction over non-Indians on fee lands. I share 
the tribe's concerns, being a resident in that area, that this 
1984 act might allow a party to challenge the authority 
delegated to it under the Clean Air Act.
    I certainly applaud the response of the tribe and the State 
to this possible dilemma. Instead of leaving the conflict to 
courts again, they have forged an agreement that is before us 
today.
    I am delighted to see my good friend here, the chairman of 
the Southern Utes, Leonard Burch, and my colleague from the 
Legislature in Colorado, who served right after I left, Renny 
Fagan. Nice to have you here.
    With that, why don't we go ahead with Chairman Burch. Would 
you like to proceed?

   STATEMENT OF LEONARD BURCH, CHAIRMAN, SOUTHERN UTE INDIAN 
                       TRIBE, IGNACIO, CO

    Mr. Burch. Thank you, Senator Campbell, vice chairman of 
the committee. I am Leonard Burch, chairman of the Southern Ute 
Tribal Council. Thank you for inviting the tribe to testify 
today regarding S. 2065 entitled:

    A Bill to Implement the Intergovernmental Agreement between 
the Southern Ute Indian Tribe and the State of Colorado 
Regarding Air Quality Control on the Southern Ute Indian 
Reservation.

    It is my pleasure to express the tribe's support for this 
important legislation. In your packet, Senator Campbell, we 
have a map of our reservation. It is checkerboarded. Within the 
boundary of the reservation there is Indian land, non-Indian 
land, and some Federal lands.
    To give background, for over 10 years the State, the tribe, 
and the U.S. Environmental Protection Agency have disagreed 
over tribal and State eligibility to receive delegation of 
authority to administer programs under the Clean Air Act on the 
Southern Ute Reservation. Under the 1984 law that confirmed the 
boundaries of the reservation, the tribe relinquished 
territorial jurisdiction over non-Indians conducting activities 
on non-Indian lands.
    Amendments to the Clean Air Act in 1990, however, 
authorized EPA to delegate primacy to tribes with respect to 
administration of various programs under the statute and 
arguably restored tribal jurisdictional authority for 
reservation-wide air quality program.
    Rather than allow ourselves to become embroiled in bitter 
and costly litigation that would probably result in a decision 
unacceptable to all parties, tribal and State government 
officials have formulated a resolution supported by all.
    As you know, Mr. Chairman, we worked this thing out with 
the State, and we have come up with this verifying legislation 
that is acceptable.
    This legislation confirms the authority of EPA to grant to 
the tribe treatment as State status under the Clean Air Act for 
such time as the governmental agreement remains in effect. The 
status will enable the tribe to administer a single air quality 
program on all lands within the exterior boundaries of the 
Southern Ute Indian Reservation, as delegated by EPA and in 
accordance with rules promulgated by the Environmental 
Commission.
    Additionally, this legislation provides for exclusive 
Federal judicial review of final action by the Environmental 
Commission and authorizes the Southern Ute Tribe or the 
Environmental Commission, as appropriate, to file in Federal 
court--a petition for declaratory or injunctive relief or other 
orders in aid of enforcement for person who had failed to 
comply with final civil order of the tribe or the Environmental 
Commission made pursuant to the air quality program established 
under the inter-governmental agreement.
    Mr. Chairman, the legislation, as you know, was worked on 
together by the State, the tribe, the Governor's office, the 
attorney general's office, and the State General Assembly that 
passed the resolution this spring. It requires the approval of 
the Congress. At the end of this month more information will be 
given on that by the company group here.
    The resolution of these complex jurisdictional problems 
present on the Southern Ute Reservation has long been a 
challenge. Unlike the relationship between many other States 
and tribes, in recent years the State of Colorado and Southern 
Ute Indian Tribe have been able to amically resolve several 
difficult jurisdictional issues. A spirit of cooperation and 
willingness of the State and the tribe to negotiate on a 
government-to-government basis led to the development of the 
agreement.
    S. 2065 is needed to implement and enforce the unique and 
innovative air pollution control between the State of Colorado 
and the Southern Ute Tribe.
    Mr. Chairman, I appreciate the time. I hope the committee 
will pass this very important legislation so we can move on to 
implement the agreement.
    Again, I would like to thank your staff and the staff of 
Chairman Inouye for the hard work that they have given us to 
get this legislation to where we are today.
    Thank you.
    Senator Campbell. Thank you.
    [Prepared statement of Chairman Burch appears in appendix.]
    Senator Campbell. You were accompanied by Fran King Brown. 
Were you prepared to make some comments, too, Fran?
    Ms. Brown. Yes; I am, sir.
    Senator Campbell. All right.

  STATEMENT OF FRAN KING BROWN, DIVISION HEAD, ENVIRONMENTAL 
   PROGRAMS DIVISION, SOUTHERN UTE INDIAN TRIBE, IGNACIO, CO

    Ms. Brown. The first thing I'd like to do is just go over 
the key terms of the agreement.
    As encouraged by Congress in the Clean Air Act, the 
Southern Ute Indian Tribe and the State of Colorado have 
entered into this intergovernmental agreement. The agreement 
provides for joint participation by the tribe and the State for 
regulation of air quality on the reservation. Under the 
agreement, a joint commission has been created by a 
subsequently enacted State and tribal law. The Commission is 
composed of six members, three of whom are appointed by the 
Governor and three of whom are appointed by the tribal council. 
The Commission is to be known as the ``Southern Ute Indian 
Tribe State of Colorado Environmental Control Commission'' and 
has two main responsibilities.
    First, the Commission will determine the specific Clean Air 
Act or other programs that should apply to the reservation and 
establish program standards for managing the continued 
discharge of pollutants.
    Second, the Commission will review appealable 
administrative actions. The tribe will incorporate the 
standards set by the commission as part of its application to 
EPA for delegation of authority to administer Clean Air Act 
programs.
    Once the delegation is received, the tribe will have the 
responsibility for day-to-day administration and enforcement of 
standards, rules, and regulations adopted by the Commission. 
Civil enforcement actions taken by the tribe will be subject to 
administrative review by the Commission.
    It is contemplated that the final decisions of the 
Commission will be subject to judicial review in Federal court.
    The cost associated with the tribe's administration of the 
program and the necessary expenses of the Commission will be 
funded primarily through permit fees.
    As required by the agreement, a tribal resolution was 
enacted in January, 2000, authorizing the creation of the 
Commission and approving implementation of the agreement. 
Parallel State legislation approving the agreement was adopted 
by the Colorado General Assembly and signed by Governor Owens 
on March 15, 2000.
    The agreement gives Congress until December 13, 2002, to 
adopt Federal legislation. If the Federal legislation is not 
enacted before that time, then the agreement will become null 
and void and the parties retain their previous status.
    In addition to the bill as it stands, the tribe has seen a 
need to ask for an amendment to this bill, and the tribe's 
attorney, Sam W. Maynes, will address that.
    Senator Campbell. Okay. Sam W., Junior. I guess I shouldn't 
use that word ``junior'' in this day and age.

STATEMENT OF SAM W. MAYNES, ATTORNEY, SOUTHERN UTE INDIAN TRIBE

    Mr. Maynes. Thank you, Mr. Vice Chairman. My name is Sam W. 
Maynes. I'm an attorney for the Southern Ute Indian Tribe.
    As Chairman Burch indicated, the tribe urges the 
committee's approval of the bill, but the tribe also 
respectfully requests that the committee consider amending the 
bill so as to remove section 4B. Section 4B of the bill 
provides that nothing in the bill will alter the right of a 
person to bring what is known as a ``citizen's suit'' pursuant 
to section 304 of the Clean Air Act.
    The tribe is concerned that the inclusion of that provision 
will subject the tribe, the Southern Ute Indian Tribe, to 
citizen suit liability in situations where neither states nor 
other tribes would be subject to such liability.
    Under the Clean Air Act, the citizen's suit provision 
applies to States only to the extent permitted by the 11th 
amendment. In other words, States retain, under the Clean Air 
Act, their 11th amendment immunity from suit.
    In 1990, the Congress directed EPA to determine which 
provisions of the Clean Air Act it was appropriate to apply to 
tribes who receive treatment as a State status. In its regs, 
EPA determined that the citizen's suit provision was one of the 
provisions for which it was not appropriate to treat tribes as 
States.
    There were two reasons for that. One was EPA recognized and 
was concerned that a determination that the citizen's suit 
provision applied to tribes would constitute an administrative 
waiver of tribal sovereign immunity. Second, EPA did not want 
to or was concerned that application of the citizen's suit 
provision to tribes might hinder the development of tribal air 
programs.
    Early in their development, EPA was concerned that 
resources might have to be committed to litigating citizen's 
suits rather than building the tribe's air program.
    In conclusion, Mr. Vice Chairman, the tribe is concerned 
and objects to the inclusion of the citizen's suit language in 
the bill because it will subject the tribe to citizen's suit 
liability in situations where neither States, because of their 
11th Amendment immunity, nor other tribes, because of EPA's 
determination, would be subject to such liability.
    We have consulted with EPA about this matter, and they have 
indicated to us that they do not object to the removal of that 
provision.
    Thank you, Mr. Vice Chairman.
    Senator Campbell. To my knowledge, no one on our committee 
has a problem with removing section 4B, nor does anybody in the 
EPA, but this bill has also been assigned to the Environment 
and Public Works Committee, and I'm not sure about that 
committee, but staff is working with them already and hopefully 
will be able to do that without any problem, remove that 
section.
    Also, at this time, before I ask a few questions, I want to 
introduce for the record a letter from Edward Krenick, USEPA, 
and the testimony in support of S. 2065 by the administrator, 
Christie Todd Whitman.
    [Letter of Mr. Krenick and testimony of Ms. Whitman appear 
in appendix.]
    Senator Campbell. Renny, if you would like to go ahead.

  STATEMENT OF RENNY FAGAN, DEPUTY ATTORNEY GENERAL, STATE OF 
                      COLORADO, DENVER, CO

    Mr. Fagan. Thank you, Mr. Chairman.
    I'm Deputy Attorney General Renny Fagan here representing 
Attorney General Ken Salazar from the State of Colorado. 
Attorney General Salazar was very instrumental in getting these 
negotiations going and has been fully supportive of the 
agreement.
    In addition, I also bring the support of Governor Bill 
Owens and his administration to the agreement. The Governor's 
office was also very involved in the negotiations, and the 
State Department of Public Health and Environment has been also 
there every step of the way and continues to work with the 
tribe on the purposes of the agreement.
    Finally, in the spirit of cooperation, also there should be 
submitted in the record a letter from the Colorado Petroleum 
Association representing the oil and gas producers in the area 
that does support both this legislation and the agreement.
    Senator Campbell. We'll include that letter in the record.
    [Letter from the Colorado Petroleum Association appears in 
appendix.]
    Mr. Fagan. Senator Campbell, we very much appreciate your 
bringing this bill forward. We also appreciate Senator Allard 
cosponsoring the legislation. As has been mentioned, the 
agreement calls for Federal legislation to accomplish a couple 
of important key objectives that would, once adopted by 
Congress, make the agreement fully enforceable and fully able 
to be implemented by the parties.
    This agreement represents another historic agreement 
between the State of Colorado and the Southern Ute Indian Tribe 
to resolve matters without litigation, but to really focus on a 
practical solution, and our practical solution here is how to 
have clean air for all the residents of the area of the State 
in which you reside; the Commission, which is made up of the 
three tribal appointees and the three State appointees, would 
establish the rules and regulations for the air quality 
authority and also serve as the appellate review panel.
    We feel that, by having a jointly shared authority, but 
have the day-to-day administration done by the tribe, that this 
is the best way to regulate air quality in that area and also 
is consistent with the purposes of the Clean Air Act's 
authorization to treat tribes as a State for purposes of air 
quality.
    There are a couple of key pieces to the legislation that I 
would just like to comment on briefly.
    The first is section three with regard to tribal authority. 
This is the section of the bill that authorizes the 
Environmental Protection Agency to treat the tribe as a State 
under this kind of arrangement. The specific uniqueness of it 
is that, while the tribe will receive the delegation from the 
EPA, that delegation exists only so long as the Commission and 
the agreement are in effect, and that, in effect, the 
delegation is exercised by the Commission's purpose under the 
agreement.
    So, because that perhaps could be argued by some as being a 
little unusual, we wanted to make sure that Congress would 
fully authorize the EPA to do that so that we didn't have 
issues down the road.
    A second part of that section 3 that's important to the 
State is that both parties provided in the agreement that 
either party could terminate the agreement if it didn't work 
out the way we wanted it to. While we are fully committed to 
its success, there could come a time in the future where it 
didn't work out the way we envisioned, and in that case the 
agreement provides that both parties would go back to their 
original positions and the delegation would cease, and so we 
wanted to make sure that the Federal legislation also included 
that, and that is included in paragraph 3A that if the 
agreement is ever terminated that the EPA would take the 
appropriate administrative action to withdraw delegation. So a 
key part of the agreement is to make sure that the EPA would 
authorize this and help us enforce the terms of the agreement.
    A second key part of S. 2065 has to do with the Federal 
jurisdiction. The parties discussed how to make all orders of 
the tribe and the Commission fully enforceable and also what 
would be the appropriate judicial review body. Because we set 
this up to be a truly cooperative entity in that we had three/
three on the Commission so it takes consensus in order to do 
anything, we also decided that it would not be appropriate for 
the courts of the other entity being the place where 
enforcement would occur, so instead we thought that the Federal 
courts would be the best place to do that and would be a 
neutral forum. We also thought that was consistent in that the 
Commission would serve as the final agency action and would be 
like the EPA if the EPA had been running a Federal program 
within the reservation, so therefore it seemed logical to us to 
have the Federal courts be both the enforcement and the 
judicial review. Therefore, sections 4 and 5 of the bill would 
clearly state that the Federal court does have jurisdiction in 
those two matters.
    We think this is important to make sure everything is 
enforceable. At the same time, the State's experience in 
running its own air program is that it is rare to have a court 
action, particularly at the judicial review level; therefore, 
we don't see this as a burdensome thing to place upon the 
Federal courts in Colorado, but it is necessary to accomplish 
through this legislation.
    Finally, the bill provides that this bill is unique to this 
specific agreement. It does not change any piece of the Clean 
Air Act. It does not change any piece of the Public Law 98-290, 
which is the key jurisdictional piece between the tribe and the 
State. It only is to implement this legislation.
    In closing, Mr. Chairman, I would also say that the State 
does support the tribe's request to delete section 4B regarding 
the citizen's suits. We see that as something that should be 
done in accordance with the EPA's tribal authority rule and 
makes sense in the context of our agreement.
    We appreciate your bringing this bill forward. We also 
appreciate the staff's work to bring the bill to this level. We 
look forward to Congress adopting this so that we can finally 
move forward and get this thing fully in gear.
    [Prepared statement of Mr. Fagan appears in appendix.]
    Senator Campbell. We only have about 30 working days here, 
as you probably know, this year before we are out, so we will 
have to really push to move this one through the process in the 
Senate and House side both.
    Let me maybe just ask a couple of questions for the record, 
first to Chairman Burch.
    Mr. Fagan indicated that a Federal court was chosen by the 
parties as the best venue because it is a neutral forum. What 
factors came up in that discussion? Did the discussion involve 
claims first brought in a tribal court and then into a Federal 
court?
    Mr. Burch. Senator, I'm going to refer to my attorney 
there.
    Senator Campbell. Good. That's what I usually do, too. Go 
ahead, Mr. Maynes.
    Mr. Maynes. Thank you, Mr. Vice Chairman. There was 
discussion about claims going into tribal court, and we had 
some discussion with the staff about that matter, as well.
    Senator Campbell. Did any non-Indian residents express 
discomfort about going into the tribal court?
    Mr. Maynes. You know, I think their discomfort was probably 
expressed through the State. I mean, the State expressed 
concern about disputes going to a neutral forum and, as Mr. 
Fagan stated, it was the desire of the parties that this be a 
completely cooperative agreement and approach to air quality, 
and, in keeping with that spirit of cooperation, it was felt 
like Federal court would be the most appropriate forum.
    Senator Campbell. Well, since that reservation is 
checkerboarded, there are a lot of non-Indians who live on the 
reservation. Were they involved at all in the discussion or 
were they aware of it or anything?
    Mr. Maynes. There was a public meeting--I'm trying to think 
when. It probably was 15 months ago--where they expressed some 
of their concerns. As a result----
    Senator Campbell. So they're not going to come running in 
here and say they didn't know anything about it?
    Mr. Maynes. Certainly not.
    Senator Campbell. Okay.
    Mr. Maynes. Certainly not.
    Senator Campbell. All right. Let me ask about the joint 
commission, Leonard. What sort of response did you get from 
tribal members, Leonard, or tribal businesses about being 
subject to an entity like a Commission that is not a tribal 
body? Did anybody see that as giving up some tribal 
sovereignty?
    Mr. Burch. No; we have several commissions that do similar 
operation that they sit on the boards and commissions and all 
that. This certainly was supported by the tribal council. They 
didn't have a problem with that to get it going.
    Senator Campbell. Well, the Southern Utes have set really a 
model for a lot of work with non-tribal governments with the 
State and the counties, and I certainly admire that.
    As I remember, there were about nine different 
jurisdictions down there that have some law enforcement ability 
or authority, because it is checkerboarded. Have negotiations 
on this bill set any kind of a rationale or a model that might 
be used to broaden that cooperation with areas like some of the 
law enforcement jurisdictions? Maybe Renny could answer that. 
You might not even know. I just thought about it.
    Mr. Fagan. Well, I think we have--as issues of jurisdiction 
and shared authority have come up, the State and the tribe have 
addressed those. For example, after this agreement we 
negotiated an agreement regarding driver's license revocation 
that also recognized the sovereignty of both the State and the 
tribe and accomplished the objectives of both governments to 
have safe roads and drivers that are safe on the roads.
    Senator Campbell. Yes.
    Mr. Fagan. We haven't specifically addressed the law 
enforcement issue yet.
    Senator Campbell. Well, that's part of it. The reservation 
has about 680,000 acres, and about 378,000 or so are owned in 
fee with many non-Indian residents living there, as I 
mentioned. In the negotiation process that led to a conclusion 
of a single authority, what were some of the issues or factors 
that came up?
    Mr. Fagan. Mr. Chairman, I think some of the factors were 
how could we establish an entity that would truly be shared, 
and that's where the three/three membership came in.
    A second--and this is written into the agreement--is to 
basically give wide latitude to the Commission to fashion an 
air quality program that would fit the unique needs of the 
area, which would include the economic, environmental, and 
cultural components of that.
    Senator Campbell. What's the makeup of the Commission? Some 
Indian, some non-Indian, some State, some tribal, or----
    Mr. Fagan. There are three appointees by the Governor and 
three by the tribal council.
    Senator Campbell. For six total. Yes.
    Mr. Fagan. We also, during the agreement, factored in 
somewhat of a process in that the Commission would hold public 
hearings as it looks at considering rules and regulations, and 
ultimately, like the application to become treated as a State, 
and other things like that, so we provided local input.
    Also, as I mentioned earlier, we provided for termination 
if things didn't work out the way that we envisioned. So we 
don't expect that to happen, but, in terms of especially on the 
State side for the residents of the area, and because the State 
has passed the State law that empowers the Commission to have 
authority over non-Indians on the fee lands, we thought that 
that kind of thing would be important if we ever got to that 
point.
    So I think on the whole it was to try to have a shared 
authority, to have a process that would be local, and to really 
give latitude to the Commission, working with the tribe's 
Environmental Division and the State Air Pollution Control 
Division to establish a program that really works best for that 
area.
    Senator Campbell. Chairman Burch?
    Mr. Burch. We have met with different elected officials. As 
you know, Senator, part of our reservation lies a little bit in 
Montezuma County, LaPlata County, and Archuleta County. We have 
met with the commissions in Archuleta and LaPlata to talk about 
some of the issues. This was certainly one of them, talking 
about the mutual concerns of all the people that are in that 
area.
    So we have a good working relationship, as you know, 
Senator, that we try to work with the elected officials in that 
area.
    Senator Campbell. And, speaking of other jurisdictions, the 
southern border of the Southern Ute Reservation borders New 
Mexico, and it's not very far away where you have some pretty 
big power plants.
    Mr. Burch. Yes.
    Senator Campbell. Has there been any multi-jurisdiction 
pollution that you know of that has been a problem to the 
tribes from New Mexico?
    Mr. Burch. We have had some concerns on that and hearings 
before because of the power plants. That's why we put a 
monitoring station in this area to monitor the pollution that 
come across.
    Senator Campbell. That was the response to the----
    Mr. Burch. Right.
    Senator Campbell [continuing]. Pollution, a monitoring 
system?
    Mr. Burch. Right. Yes.
    Senator Campbell. Well, I have no further questions, and I 
will do my very best in these remaining days to try to move 
this bill forward. I know Senator Inouye is supportive of it, 
too. We'll do the best we can.
    We are going to have a few little things we have to iron 
out, as you probably know, so I'm going to, with the chairman's 
consent, keep the record open for 2 more weeks for any 
additional comments that you or anybody in the audience might 
have.
    With that, this hearing is adjourned.
    Mr. Burch. Thank you.
    [Whereupon, at 12:05 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
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                            A P P E N D I X

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              Additional Material Submitted for the Record

=======================================================================


  Statement of Leonard C. Burch, Chairman, Southern Ute Indian Tribal 
                                Council

    Chairman Inouye, Vice Chairman Campbell, and members of the 
committee:
    I am Leonard C. Burch, chairman of the Southern Ute Indian Tribal 
Council. Thank you for inviting the tribe to testify today regarding S. 
2065, entitled a bill to implement the intergovernmental agreement 
between the Southern Ute Indian Tribe and State of Colorado regarding 
Air Quality Control on the Southern Ute Indian Reservation. It is my 
pleasure to express the tribe's support for this important legislation.
    In summary, the Southern Ute Indian Tribe strongly supports the 
bill, and urges that, with the adoption of one amendment to the bill, 
the committee approve, and the Senate pass, this important legislation 
as soon as possible.
    For over 10 years, the State, tribe, and U.S. Environmental 
Protection Agency [EPA] have disagreed over tribal and State 
eligibility to receive delegations of authority to administer programs 
under the Clean Air Act on the Southern Ute Indian Reservation. Under 
the 1984 law that confirmed the boundaries of the reservation, the 
tribe relinquished territorial jurisdiction over non-Indians conducting 
activities on non-Indian land. Amendments to the Clean Air Act in 1990, 
however, authorized EPA to delegate primacy to tribes with respect to 
administration of various programs under that statute and arguably 
restored tribal jurisdictional authority Reservationwide for air 
programs. Rather than allow ourselves to become embroiled in bitter and 
costly litigation that would probably result in a decision unacceptable 
to all parties, tribal and State governmental officials have formulated 
a solution supported by all.
    As encouraged by Congress in the Clean Air Act, the Southern Ute 
Indian Tribe and the State of Colorado have entered into an 
intergovernmental agreement concerning air quality control on the 
Southern Ute Indian Reservation. The agreement provides for joint 
participation by the tribe and the State in the regulation of air 
quality on the reservation. Under the agreement, a joint commission has 
been created (via subsequently enacted State and tribal law) composed 
of six (6) members, three (3) of whom are appointed by the Governor and 
three (3) of whom are appointed by the tribal council. The Commission, 
to be known as the Southern Ute Indian Tribe/State of Colorado 
Environmental Control Commission, has two main responsibilities. First, 
the Commission will determine the specific Clean Air Act, or other air 
programs, that should apply to the reservation and establish program 
standards for managing the continued discharge of pollutants. Second, 
the Commission will review appealable administrative actions. The tribe 
will incorporate the standards set by the Commission as part of its 
application to EPA for delegation of authority to administer Clean Air 
Act programs on the reservation. Once the delegation is received, the 
tribe will have the responsibility for day-to-day administration and 
enforcement of the standards, rules and regulations adopted by the 
Commission. Civil enforcement actions taken by the tribe will be 
subject to administrative review by the Commission. It is contemplated 
that final decisions of the Commission will be subject to judicial 
review in Federal court. The costs associated with the tribe's 
administration of the program and the necessary expenses of the 
Commission will be funded primarily by permit fees.
    As required by the agreement, a tribal resolution was enacted on 
January 18, 2000, authorizing the creation of the Commission and 
approving implementation of the agreement. Parallel State legislation 
approving the agreement was adopted by the Colorado General Assembly 
and signed by Governor Bill Owens on March 15, 2000. The agreement 
gives Congress until December 13, 2002, to adopt Federal legislation. 
If the Federal legislation is not enacted before December 13, 2002, the 
agreement will become null and void.
    S. 2065 is needed for three reasons. First, without Federal 
legislation, it is unclear who has jurisdictional authority to regulate 
non-Indian owned sources of air pollution that are located on non-
Indian fee land within the reservation boundaries. Second, 
implementation of the intergovernmental agreement is conditioned on the 
passage of Federal legislation. And third, S. 2065 is needed to clarify 
and provide for enforcement authority.
    This legislation confirms the authority of EPA to grant the tribe 
``treatment as a State'' status under the Clean Air Act for such time 
as the intergovernmental agreement remains in effect. This status will 
enable the tribe to administer a single air quality program on all 
lands with the exterior boundaries of the Southern Ute Indian 
Reservation, as delegated by the EPA and in accord with the rules 
promulgated by the Environmental Commission. Additionally, this 
legislation provides for exclusive Federal judicial review of final 
actions by the Environmental Commission, and authorizes the Tribe or 
the Environmental Commission, as is appropriate, to file in Federal 
court a petition for declaratory or injunctive relief, or for other 
orders in aid of enforcement, where persons have failed to comply with 
a final civil order of the tribe or the Environmental Commission made 
pursuant to the air quality program established under the 
intergovernmental agreement.
    Section 4(b) of the bill provides that:
    Nothing in this act shall be construed to alter, amend, or modify 
the right or authority of any person, as defined in section 302(e) of 
the Clean Air Act (42 U.S.C. 7601(e)), to bring an action under section 
304 of such act (42 U.S.C. 7603).
    The section of the Clean Air Act referred to is commonly known as a 
``citizens suit provision,'' which authorizes any person to bring 
certain civil actions in the Federal district courts for enforcement of 
the act. For four reasons, the tribe respectfully requests that the 
committee consider amending the bill to delete the citizen suit 
provision.
    First, the tribe objects to the inclusion of the citizen suit 
language because it might be construed to be a waiver of tribal 
sovereign immunity from suit. The citizen suit provision in the Clean 
Air Act only applies to States to the extent permitted by the 11th 
amendment to the Constitution. Because States are subject to citizen 
suit liability only to the extent permitted by the 11th amendment, 
applying it to the tribe in this bill would make the requirement more 
burdensome than it would be for States.
    Second, subjecting the tribe to citizen suits could hinder 
development of the tribe's and State's Reservation air program because 
it could add significant resource constraints, financial and otherwise, 
particularly with respect to potential litigation.
    Third, citizen suit recourse is unnecessary since EPA retains the 
authority to directly enforce the Clean Air Act as well as to withdraw 
the tribe's delegation of authority in the event of non-enforcement.
    And fourth, for the reasons noted above, EPA has listed the Clean 
Air Act's citizen suit provision among those provisions for which it is 
not appropriate to treat tribes in the same manner as states. See 40 
C.F.R. 49.4; 63 Fed. Reg. 7254, 7260--61, 7271 (Feb. 12, 1998). The 
tribe is concerned, therefore, that without the removal of the citizen 
suit language, the Southern Ute Indian Tribe might be subject to 
citizen suit liability in situations where neither states, because of 
their 11th amendment immunity, nor other tribes, because of EPA's 
administrative determination, would be subject to such liability.
    Therefore, the tribe objects to the inclusion in the bill of the 
citizen suit language and respectfully requests that the committee 
consider amending the bill to remove that language.
    Resolution of the complex jurisdictional problems present on the 
Southern Ute Indian Reservation has long been a challenge. Unlike the 
relationship between many other states and tribes in recent years, the 
State of Colorado and Southern Ute Indian Tribe have been able to 
amicably resolve several difficult jurisdictional issues. A spirit of 
cooperation and a willingness of the State and tribe to negotiate on a 
government-to-government basis led to the development of the 
intergovernmental agreement. S. 2065 is needed to implement and enforce 
the unique and innovative air pollution control agreement between the 
tribe and the State of Colorado. The approval of this bill will allow 
for the joint participation of the tribe and State in the regulation of 
air quality on the reservation. Such cooperation between an Indian 
tribe and a State is unprecedented in Indian country. I hope you will 
support this important legislation so that the agreement can be 
implemented.
    This concludes my statement. I will be happy to answer any 
questions the committee may have.
                                 ______
                                 

  Prepared Statement of Fran King Brown, Division Head, Environmental 
              Programs Division, Southern Ute Indian Tribe

    Mr. Chairman, Mr. Vice Chairman, and members of the committee:
    My name is Fran King Brown and I am honored to appear before you 
today to offer testimony in support of S. 2065.
    As some of you know, the Southern Ute Indian Reservation is located 
in the northern portion of the San Juan Basin which is rich in natural 
gas production. Vast amounts of gas are produced on tribal and fee 
lands within the exterior boundaries of the reservation. With the boom 
of coal-bed methane gas development in the late 1980's and early 90's, 
gas production has resulted in increases in production wells, treating 
facilities, pipelines, compressors, and unpaved roads. Those facilities 
are the primary sources of air pollution that are subject to 
regulation. Based on an emissions inventory prepared by the tribe's Air 
Quality Program, particulate matter, carbon monoxide and nitrogen 
oxides were identified as the major pollutants generated by methane gas 
exploration and production. There are a total of approximately 100 
sources of air pollution on the reservation. Out of those 100 sources, 
approximately 30 meet the criteria for classification under the Clean 
Air Act as a ``major source.'' Additional economic activities such as 
tourism as well as a growth in population and housing have also 
contributed to the overall generation of air pollutants.
    While the tribe is committed to develop its mineral resources, it 
also acknowledges a need to protect its natural environment and the 
health and welfare of its people. Protection of the reservation 
environment has always been among the tribe's major objectives. For 
almost 81-271 20 years, the tribe has administered an air quality 
program and it has long been a goal of the tribe to receive a 
delegation of authority from EPA to administer a comprehensive air 
quality control program on the reservation.
    As stated by Chairman Burch, S. 2065 is needed to implement and 
provide for enforcement of the air quality agreement between the tribe 
and State of Colorado. That agreement has many benefits:
    The agreement eliminates confusion and provides certainty to would-
be regulators (that is, the State, Tribe and EPA) and also for those 
individuals who must comply with the Clean Air Act (that is, sources of 
air pollution). The certainty created by the agreement will minimize 
duplicative efforts and expenditures of monetary and program resources 
by the Tribe and State. I
    The agreement assures the protection of air quality on the 
Reservation through the development of a comprehensive air quality 
program applicable to all lands within the boundaries of the 
Reservation. It is agreed that the Reservation air program to be 
developed under the agreement should reflect the particular interests 
of the Tribe, yet remain compatible with State air quality goals.
    The agreement would guarantee local input in the setting and 
enforcement of air quality standards, subject to air quality 
requirements of the Clean Air Act.
    The cooperative approach represented by the agreement eliminates 
the risk of a protracted and costly jurisdictional dispute, which 
dispute potentially would include the Tribe, State, EPA and regulated 
parties.
    In conclusion, the tribe is looking forward to working 
cooperatively with the State to ensure the protection of air quality 
and, hence, the health of tribal members as well as non-Indians on the 
Reservation. The tribe and State need the support of Congress in order 
to move forward with their cooperative approach to the regulation of 
air pollution on the reservation. As stated by Chairman Burch, the 
tribe urges the committee's amendment of the bill and then its prompt 
consideration and approval on the Senate floor.
    Thank you for the committee's time and attention. I would be happy 
to answer any questions.
                                 ______
                                 

Prepared Statement of Renny Fagan Deputy Attorney General on behalf of 
             Ken Salazar, State Attorney General, Colorado

    I am Deputy Attorney General Renny Fagan. I am appearing on behalf 
of Colorado Attorney General Ken Salazar in support of S. 2065 
introduced by Sen. Campbell and Sen. Allard. Attorney General Salazar 
was instrumental in initiating negotiations between the Southern Ute 
Indian Tribe [tribe] and the State of Colorado that led to the air 
quality agreement which is the subject of S. 2065. The final agreement 
is the result of cooperative efforts by the Southern Ute Indian Tribe, 
Governor Bill Owens, Attorney General Salazar and the Colorado 
Department of Public Health and Environment. Attorney General Salazar 
asks this committee to support S. 2065, which if adopted by Congress, 
will be the final step necessary to fully implement the agreement.
    The Southern Ute Indian Tribe's Reservation consists of 
approximately 681,000 acres, located mainly in La Plata County, CO. The 
reservation is a checkerboard of land ownership. About 308,000 surface 
acres are held in trust by the United States for the benefit of the 
tribe [``trust lands'']. Additionally, the tribe owns the majority of 
the mineral estate underlying a majority of the reservation lands. The 
remaining 378,000 surface acres are owned in fee by non-Indians or 
individual tribal members [``fee lands''], or consist of national 
forest land.
    In 1984, Congress enacted Public Law 98-290 which confirmed the 
exterior boundaries of the reservation. The law also clarified that the 
Tribe has jurisdiction over the trust lands and Indians anywhere in the 
Reservation, and the State has jurisdiction over non-Indians on the fee 
lands.
    Oil and natural gas production takes place throughout the 
reservation. These facilities are stationary air pollution sources. 
Since 1970's, the State's Air Pollution Control Division has issued 
permits to non-Indian owned sources located on fee lands.
    The Clean Air Act allows Indian tribes to be treated in the same 
manner as States to administer certain air quality programs. In 1998, 
the EPA issued regulations implementing these provisions of the act. In 
July 1998, the Southern Ute Tribe applied to the EPA for treatment as a 
state for all lands within the Reservation. On the basis of Public Law 
98-290, the State was prepared to object, claiming that it had 
jurisdiction over the non-Indian sources on the fee lands.
    Instead of a potentially long and costly fight in the Federal 
courts about who has jurisdiction over the fee lands, the Tribe and the 
State agreed to establish a single, cooperative air quality authority 
for all lands within the reservation. Pursuant to an intergovernmental 
agreement [``the Agreement''], a joint tribal/State commission will 
establish air quality standards. When the agreement is fully 
implemented, the tribe will receive a delegation of authority from EPA 
to administer the air quality programs, but the delegation is 
contingent upon and shall last only so long as the agreement and 
commission are in place.
    Since air does not know political boundaries, a single cooperative 
program will achieve the best result for everyone in the area. One 
program will also be more efficient for the governments and for the 
businesses that will be regulated. The commission meets locally and 
will adopt a program suited to the needs of the reservation and local 
area. The companies affected by air quality regulation support the 
agreement.
    We believe that this cooperative arrangement is the first of its 
kind in the country between a State and a tribe to regulate air 
quality. It is also unique to the circumstances of the Southern Ute 
Indian Tribe Reservation.
    On December 13, 1999, the tribe, Governor Owens, and Attorney 
General Salazar signed the Intergovernmental Agreement. As conditions 
precedent to full implementation, the agreement requires the adoption 
of certain legislation by the tribal council, the Colorado General 
Assembly, and Congress. In 2000, both the tribe and the State enacted 
the necessary laws. When the agreement is fully implemented, this is 
how the Reservation Air Program would work:
    No. 1. A tribal/State commission will establish air quality 
standards, promulgate rules and regulations pertaining to all lands and 
air pollution sources within the exterior boundaries of the 
reservation.
    No. 2. The commission consists of three members appointed by the 
tribe and three State members appointed by the Governor. In 2001, the 
tribe and the Governor each named their appointees. All actions of the 
commission must be by majority vote of all members. The commission is 
not a State agency.
    No. 3. The commission's other duties include holding public 
hearings, setting fees paid by the sources to fund the costs of the 
program, and conducting review of appealable administrative actions.
    No. 4. Over time, the tribe will assume day-to-day responsibility 
for administering the air quality program, and will cooperate and 
coordinate with the Colorado Air Pollution Control Division. 
Eventually, the tribe will administer the rules and regulations of the 
commission.
    No. 5. Funding for the program will come from fees paid by air 
pollution sources or EPA grants. The tribe will collect the fees and 
grants.
    No. 6. After the commission is up and running, and after it adopts 
an air quality program for the reservation, the tribe will apply to the 
EPA to receive delegation to administer Clean Air Act programs.
    No. 7. Any delegation from the EPA to the tribe is specifically 
conditioned upon the existence of the Intergovernmental Agreement and 
the commission. The tribe and the State believe that this cooperative 
effort will work for all people living in the La Plata County area and 
for the air pollution sources. The agreement provides that the State 
and the tribe will review how the program is working in 3 years and 
make any necessary adjustments. The agreement also provides that either 
the State or the tribe may terminate it at any time, by giving a 1-year 
notice. If either the State or the tribe terminate the agreement, then 
any EPA delegation would cease and both parties would go back to the 
legal positions they held before the agreement.
    No. 8. The agreement provides that enforcement actions and judicial 
review of commission administrative actions will occur in the Federal 
courts.
    Federal Jurisdiction. The agreement provides that the Federal 
courts will be the judicial forum for the enforcement of regulatory 
orders of the tribe or commission and for the judicial review of final 
agency actions of the commission. The tribe and the State chose this 
forum for several reasons.
    First, the parties sought to establish a cooperative air quality 
authority that balanced the sovereign interests of both parties. 
Neither party wanted to authorize the judicial system of the other 
party as having jurisdiction for judicial enforcement orders or review 
of commission actions. To do so would have given the courts of one 
sovereign authority over what is designed to be a joint regulatory 
authority. Therefore, the State and the tribe viewed the Federal courts 
as being a neutral forum. As such, ensuring that the Federal courts 
have jurisdiction is a fundamental part of the agreement.
    Second, under the agreement, the commission serves as the ``final 
agency action'' for purposes of the air quality regulation. If the 
State and tribe had not reached the agreement and if the EPA had 
stepped in to serve as the regulatory authority, then the Federal 
district court would have jurisdiction over enforcement actions of EPA 
and the Federal administrative procedure act would have governed 
judicial review of EPA final agency actions. In this respect, the 
agreement provides that the commission will serve the same functions or 
``stand in the shoes'' of the EPA. Therefore, it seemed appropriate to 
provide that the Federal courts would serve the same role as if EPA was 
the regulatory authority.
    S. 2065 implements Federal jurisdiction. Section 4 provides that 
the United States District Court for the district of Colorado shall 
have jurisdiction over action brought by the tribe or the commission 
for declaratory or injunctive relief to enforce civil orders. Section 5 
provides that any decision of the commission that would have been 
subject to appellate review if that decision had been made by EPA is 
reviewable by the United States Court of Appeals for the 10th circuit 
applying the same standard applicable to a final agency action of the 
EPA.
    Tribal Authority. Under the Agreement, the State will support a 
delegation of ``treatment as a State'' status by EPA to the tribe, but 
only so long as the Agreement and Commission remain in effect. Because 
of the unique nature of this delegation, both parties want to ensure 
that EPA is authorized to and will grant a delegation in these 
circumstances. Section 3(a) of the bill makes the necessary 
authorization to EPA.
    While both the tribe and the State are committed to the success of 
the joint reservation air program, the agreement provides that either 
party may terminate the agreement. Upon termination, both parties 
return to the legal positions they held prior the agreement. Thus, the 
State would return to its legal position that the EPA is without 
authority to grant the tribe regulatory authority over the fee lands. 
It is vital to the State that the Federal legislation preserve this 
legal right. Section 3 (b) does so by providing that if the agreement 
is terminated, the EPA ``shall promptly take appropriate administrative 
action to withdraw'' treatment as a State delegation to the tribe.
    Limited Scope of S. 2065. Public Law 98-290 sets forth jurisdiction 
of lands within the exterior boundaries of the reservation. In 
establishing the commission and the Reservation Air Program, the 
parties specifically provided that the agreement did not affect any 
other aspect of the jurisdiction of either party regarding such lands. 
The State and the tribe also want to ensure that Congressional 
enactment of S. 2065 will not be construed as changing in any way any 
other aspect of the existing jurisdiction. Section 6 of the bill 
clearly narrows the effect of this legislation.
    The agreement between the State and the tribe for the joint 
regulation of air quality for all lands within the reservation is a 
unique cooperative endeavor. Both parties believe that this cooperative 
regulatory authority is a practical solution to a potentially divisive 
legal conflict and a solution that will enhance air quality for all 
residents within the exterior boundaries of the reservation. Adoption 
of S. 2065 will implement the provisions necessary at the Federal level 
to fully implement the agreement. Attorney General Ken Salazar urges 
your support of the bill.
                                 ______
                                 
              State of Colorado, Department of Law,
                            Office of the Attorney General,
                                         Denver, CO, July 12, 2002.
Hon. Danile K., Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.

    Dear Senator Inouye: Thank you for the invitation to testify before 
the U.S. Senate Indian Affairs Committee regarding S. 2065, a bill to 
Ratify an Agreement to Regulate Air Quality on the Southern Ute Indian 
Reservation. I regret that I am unable to be present, but I will be 
represented at the hearing on July 18, 2002 by Deputy Attorney General 
Renny Fagan, who has served as the lead attorney from my Office on all 
matters pertaining to this issue.
    The Southern Ute Indian Tribe and the State of Colorado have a long 
history of working together to resolve contentious issues though 
negotiation. The Intergovernmental Agreement between the Tribe and the 
State concerning air quality control on the Southern Ute Indian 
Reservation (the Agreement) is another historic example of this 
cooperation. The Agreement establishes a Tribal/State Commission to 
regulate air quality concerning all lands and people within the 
exterior boundaries of the Southern Ute Indian Reservation. Since air 
does not know political. boundaries, a single cooperative program will 
achieve the best result for everyone in the area.
    I believe that two sovereign governments work best together by 
cooperating to achieve solutions to common problems. This Agreement 
avoids costly litigation over competing jurisdictional claims by the 
Tribe, State and Federal Government. But more importantly, the 
Agreement provides a practical way to maintain air quality for 
everyone. One program will also be more efficient for both the 
governments and for the regulated businesses.
    In 2000, the Colorado General Assembly unanimously adopted the 
Agreement and legislation to implement it. The oil and gas industry 
supported the Agreement during the legislative process, and continues 
to do so.
    I greatly appreciate Senator Ben Nighthorse Campbell bringing S. 
2065 to the Committee. This bill represents the final step necessary to 
fully implement certain aspects of the Agreement. S. 2065 authorizes 
the Environmental Protection Agency to delegate ``treatment as a 
state'' status to the Tribe as provided in the Agreement. The bill also 
implements parts of the Agreement that provide for the civil 
enforcement of regulatory orders of the Tribe or the Commission and for 
the judicial review of final agency actions of the Commission in the 
Federal courts. The details of the Agreement and the need for S. 2065 
are more fully set forth in the attached written testimony of Mr. 
Fagan.
    I strongly urge the Committee to support S. 2065.

            Sincerely,
                                   Ken Salazar, Attorney General.
                                 ______
                                 

  Prepared Statement of Christie Todd Whitman, Administrator, United 
                 State Environmental Protection Agency

    Good afternoon, Mr. Chairman and Members of the Committee. I 
appreciate this opportunity to provide the Administration's views on S. 
2065, the ``Southern Ute and Colorado Intergovernmental Agreement Act 
of 2002.''
    The Environmental Protection Agency [EPA] is charged with 
responsibility, under the Clean Air Act, with ensuring protection of 
the Nation's air quality. In discharging our responsibilities, we work 
closely with States and tribes and encourage them to take the 
leadership role within their jurisdictions to provide for the 
protection of their air quality. EPA has been privileged to work with 
the Southern Ute Indian Tribe and the State of Colorado for over 5 
years in the development of this unique Intergovernmental Agreement 
concerning air quality control. The Tribe and the State jointly led the 
effort and EPA played a supportive role of providing technical 
assistance. EPA participated at the signing of the Agreement on 
December 13, 1999, between the Governor of Colorado and the Vice 
Chairman of the Southern Ute Indian Tribe.
    Since the Agreement was entered into in 1999, the State and the 
Tribe have made considerable progress in developing the capacity of the 
Southern Ute/State of Colorado Environmental Commission to provide for 
the regulation of air quality within the exterior boundaries of the 
Southern Ute Indian Reservation. Further, the Tribe has begun to build 
its professional, managerial, and regulatory capacity so as to be able 
to effectively provide for the many responsibilities of regulating air 
quality including permit writing, inspection and enforcement of the 
Clean Air Act and rules to be written by the Commission. The State has 
provided-and continues to provide--technical assistance to the Tribe.
    Currently, EPA is the issuing agent within the Reservation for 
Clean Air Act Title V Operating Permits and has, to date, issued 22 and 
has 9 in process. In the event that S. 2065 becomes law and the Tribe 
applies for and EPA grants authorization to the Tribe to administer the 
Title V Operating Permits Program, the EPA will, in an orderly manner, 
``turn over'' those permits to the Tribe to administer.
    The Administration views the Intergovernmental Agreement between 
the Southern Ute Indian Tribe and the State of Colorado as an 
appropriate instrument that can serve the needs of protecting and 
effectively regulating air quality within the exterior boundaries of 
the Reservation in a manner consistent with the Clean Air Act. EPA has 
worked cooperatively with both the Tribe and the State to implement the 
Agreement and will continue to provide support and encouragement. For 
those reasons, the Administration supports passage of S. 2065.
    Thank you Mr. Chairman and Members of the Committee for the 
opportunity to present the Administration's views.
                                 ______
                                 
               U.S. Environmental Protection Agency
                                     Washington, DC, July 15, 2002.
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.

    Dear Senator Inouye: Thank you for the opportunity to provide 
written testimony for the Committee's hearing on, July 18, 2002 
regarding S. 2065. I appreciate the opportunity to provide the 
Administration's Views on your efforts to ratify an agreement to 
regulate air quality on the Southern Ute Indian Reservation. Enclosed 
is written testimony to be included in the hearing record.
    The Administration supports passage of S. 2065. In particular, the 
Environmental Protection Agency (EPA) has worked closely with States 
and Tribes to support their efforts to protect their air quality. EPA 
has been privileged to work with the Southern Ute Indian Tribe and the 
State of Colorado for over 5 years in the development of a unique, 
Intergovernmental Agreement concerning air quality control. The 
Intergovernmental Agreement between the Southern Ute Indian Tribe and 
the State of Colorado is an appropriate instrument for protecting and 
effectively regulating air quality within the Reservation in a manner 
consistent with the Clean Air Act. EPA has worked cooperatively with 
both the Tribe and the State to implement the Agreement and will 
continue to provide support and encouragement. It is for these reasons 
that the Administration supports ratification of the Intergovernmental 
Agreement.
    Again, thank you for the opportunity to provide the 
Administration's views. I hope you will find the testimony useful. If 
you have further questions, please contact me or your staff may contact 
Michele McKeever in my office.

            Sincerely,
                                   Edward Krenick, President
                     Colorado Petroleum Association
                                          Denver, CO, July 16, 2002
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.

    Dear Chairman Inouye: The Colorado Petroleum Association ``CPA'' 
would like to take this opportunity to express its strong support for 
S. 2065 ratifying an Agreement to Regulate Air Quality on the Southern 
Ute Indian Reservation. The Colorado Petroleum Association represents 
the oil and gas industry in Colorado, including many of the producers 
as well as gathering and processing companies operating on ``fee 
lands'' located within the exterior boundaries of the Southern Ute 
Reservation. CPA respectfully asks that this letter be placed in the 
record supporting S. 2065.
    CPA and its members have strongly supported the efforts of the 
Southern Ute Tribe and the State of Colorado to work together to 
protect the air quality in Southwestern Colorado, while at the same 
time allowing for the development of natural gas resources so important 
to the Southern Ute Tribe, State of Colorado, and the entire United 
States. S. 2065 ratifies a historic agreement reached in 1999 which 
successfully resolves very difficult jurisdictional issues regarding 
the treatment of ``fee lands'' under the Clean Air Act. CPA notes that 
the agreement before you was approved unanimously by the Colorado 
General Assembly.
    CPA believes that this agreement is beneficial to the oil and gas 
industry because it fully resolves the question of who will regulate 
our industry with regards to implementation to the Clean Air Act. The 
agreement before you allows the Southern Ute Tribe and the State of 
Colorado to work cooperatively to properly regulate the activities that 
affect air quality in this area. As you might expect, our members who 
must meet the requirements of the Clean Air Act are anxious to avoid 
the situation in which companies must answer to duplicate regulatory 
agencies. Furthermore, CPA appreciates the efforts by the Environmental 
Protection Agency, State of Colorado and the Southern Ute Tribe in 
assisting our members obtain the necessary permits needed to operate 
their businesses as the difficult jurisdictional issues are resolved.
    CPA wishes to thank the committee for its consideration of this 
important legislation, and Senator Campbell for his leadership in 
sponsoring S. 2065. CPA looks forward to working with the Southern Ute 
Tribe as well as the State of Colorado and the Environmental Protection 
Agency in the implementation of this historic agreement.

            Sincerely,
                                   Stan Dempsey, Jr., President.

                               
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