[Senate Report 107-346]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 767
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-346

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 SOUTHERN UTE AND COLORADO INTERGOVERNMENTAL AGREEMENT IMPLEMENTATION 
                              ACT OF 2002

                                _______
                                

               November 19, 2002.--Ordered to be printed

                                _______
                                

   Mr. Jeffords, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 2065]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (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, and for other purposes, having considered 
the same, reports favorably thereon and recommends that the 
bill do pass.

                    General Statement and Background

    Pursuant to a 1984 law that confirmed the boundaries of the 
Southern Ute Indian Reservation, the Tribe relinquished 
territorial jurisdiction over non-Indians conducting activities 
on non-Indian land. Then, amendments to the Clean Air Act in 
1990 authorized the Environmental Protection Agency (EPA) to 
delegate primacy to tribes with respect to administration of 
various programs under that statute. The Tribe and the State of 
Colorado have since decided to work cooperatively to develop a 
comprehensive air quality program applicable to all lands 
(Indian and non-Indian) within the boundaries of the 
Reservation. In 1999, the State of Colorado formally entered 
into an Intergovernmental Agreement with the Southern Ute 
Indian Tribe concerning air quality control on the Southern Ute 
Indian Reservation.
    The Agreement facilitates joint participation by the Tribe 
and the State in the regulation of air quality on the 
Reservation. Under the Agreement, the Southern Ute Indian 
Tribe/State of Colorado Environmental Control Commission was 
created with two main responsibilities. First, the Commission 
determines the specific Clean Air Act or other air programs 
that apply to the Reservation and establishes program standards 
for restricting emissions. Second, the Commission reviews 
administrative proceedings that can be appealed. The Tribe 
incorporates Commission standards when applying to EPA for 
delegation of authority to administer Clean Air Act programs on 
the Reservation. Once the delegation is received, the Tribe 
will have responsibility for the day-to-day enforcement of the 
Commission's standards, rules, and regulations.
    The Agreement provides that it is not fully implemented 
until Congress enacts Federal legislation that (1) provides for 
Federal jurisdiction for the civil enforcement of regulatory 
orders and judicial review of final agency actions by the 
Commission and (2) authorizes EPA to delegate ``treatment as a 
State'' status to the Tribe in the time that the Agreement 
remains in effect. The terms of the Agreement expire without 
congressional authorization prior to December 13, 2002.
    S. 2065 specifically authorizes the EPA to treat the 
Southern Ute Indian Tribe as a State under section 301(d) of 
the Clean Air act. Enacting this legislation would provide 
that, if a Tribal application under section 301(d) is approved, 
the resulting program would apply to all lands within the 
Southern Ute Reservation, including lands owned by non-Indians. 
The bill also provides for compliance enforcement by the 
Commission established by the Agreement and judicial review of 
the Commission's decisions.

                     Objectives of the Legislation

    The purpose of the legislation is to provide congressional 
recognition of an arrangement authorized under the Clean Air 
Act between the State of Colorado and the Southern Ute Indian 
Tribe to promote efficient achievement of the Act's air quality 
standards and program compliance.

                      Section-By-Section Analysis

Section 1. Short Title
    ``Southern Ute and Colorado Intergovernmental Agreement 
Implementation Act of 2002.''
Sec. 2. Statement of Findings
    Congress finds that the Agreement between the Southern Ute 
Indian Tribe and the State of Utah is consistent with existing 
law.
Sec. 3. Tribal Authority
    The EPA specifically is authorized to treat the Southern 
Ute Indian Tribe in the same manner as a State as provided for 
by section 301(d) of the Clean Air Act, for air quality 
programs to implement an Intergovernmental Agreement between 
the Tribe and the State of Colorado within the boundary of the 
Tribe's Reservation. EPA is directed to withdraw authorization 
of the Agreement if either the Tribe or the State terminates 
participation in the Agreement. EPA is already authorized by 
the Clean Air Act to recognize such Agreements, but the State 
and the Tribe believe that the certainty provided by explicit 
congressional recognition will encourage efficient 
implementation.
Sec. 4. Civil Enforcement
    This provision emphasizes that civil orders issued by the 
Tribe or the State, pursuant to implementation of the 
Agreement, may be enforced in the U.S. District Court for the 
District of Colorado. The section further restates that the 
legislation does not affect in any way the ability of citizens 
to bring an action under section 304 of the Clean Air Act. This 
language makes it clear that the Commission and its parties as 
established by the Agreement and officially recognized by this 
legislation are subject to the same terms and conditions of any 
other entity delegated with authority to implement the Clean 
Air Act.
Sec. 5. Judicial Review
    Decisions by the Southern Ute Indian Tribe/State of 
Colorado Environmental Commission, as established by the 
Agreement, that would have been subject to appellate review if 
made by the U.S. Environmental Protection Agency will be 
subject to review by the U.S. Court of Appeals for the Tenth 
Circuit. This provision is intended to expedite the resolution 
of any conflicts that might develop in implementation by 
clarifying the judicial venue for dispute resolution.
Sec. 6. Disclaimer
    This section provides a savings clause to ensure that the 
Clean Air Act, the Act to Confirm the Boundaries of the 
Southern Ute Indian Reservation in Colorado, and any 
administrative or case law relating to these Acts, are not 
affected by the legislation.

                          Legislative History

    On March 21, 2002, Sen. Ben Nighthorse Campbell introduced 
S. 2065. No hearing was held on the bill. On September 26, 
2002. the full Committee on Environment and Public Works by 
voice vote ordered S. 2065 to be reported to the Senate.

                             Rollcall Votes

    On September 26, 2002, the committee met to consider S. 
2065. The bill was agreed to by voice vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of the rule XXVI of the 
Standing Rules of the Senate, the committee has determined that 
the legislation is not expected to create any additional 
regulatory burdens, nor will it cause any adverse impact on the 
personal privacy of individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 2065 would not 
impose Federal intergovernmental unfunded mandates on State, 
local, or tribal governments.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 8, 2002.

Hon. James M. Jeffords, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2065, the Southern 
Ute and Colorado Intergovernmental Agreement Implementation Act 
of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne 
Mehlman (for Federal costs), who can be reached at 226-2860, 
and Marjorie Miller (for State, local, and tribal impact), who 
can be reached at 225-3220.
            Sincerely,
                                            Dan L. Crippen.
                              ----------                              

S. 2065, Southern Ute and Colorado Intergovernmental Agreement 
        Implementation Act of 2002 as ordered reported by the Senate 
        Committee on Environment and Public Works on September 26, 2002
    S. 2065 would authorize the Environmental Protection Agency 
(EPA) to treat the Southern Ute Indian Tribe as a State under 
section 301(d) of the Clean Air Act. The bill would allow the 
tribe to accept delegation of EPA's authority under the Clean 
Air Act in the same manner as States. Enacting S. 2065 would 
provide that, if the tribe submits an application under section 
301(d), and if the application is approved, the resulting 
program would apply to all lands within the Southern Ute 
Reservation, including lands owned by non-Indians. The bill 
also would give jurisdiction for enforcement of these delegated 
powers to the U.S. District Court for the District of Colorado. 
According to EPA, enacting this legislation would not change 
the Southern Ute Indian Tribe's eligibility for Federal grants 
in any manner. Thus, CBO estimates that enacting this 
legislation would not have a significant effect on the Federal 
budget.
    S. 2065 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on State, local, or tribal governments. 
This legislation would implement an agreement entered into 
voluntarily by the State of Colorado and the Southern Ute 
Indian Tribe, and any costs incurred by either the State or the 
tribe would stem from their acceptance of that agreement.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for Federal costs), and Marjorie Miller (for the 
State, local, and tribal impact). This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                        Changes in Existing Law

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires the committee to publish changes in existing law made 
by the bill as reported. Passage of this bill will make no 
changes to existing law.

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