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of
Purpose and Scope of This Document 3
I. Why Region 10 Consults 5
II. What is Consultation.. 5
A. Definition of Tribal Consultation.... 5
B. Consultation and the Public Participation Process 6
III. Who in Region 10 is Responsible For Planning, Supporting, and Conducting Tribal Consultation..... 6
A. Roles and Responsibilities 6
B. Region 10 Representation for Tribal Consultation 8
IV. Identifying Activities Appropriate for Consultation 8
A. Types of Activities That May Be Appropriate for Consultation 8
B. Whether Tribal Interests Are Affected 9
V. Timing of Consultation 10
VI. How Region 10 Consults 11
A. Initiation by EPA 11
B. Initiation by a Tribe 12
C. Planning the Consultation Process 12
D. Conducting the Consultation 14
E. Required Follow-Up and Reporting 17
VII. Historic or Archaeological Resources 17
Appendix
EPA Region 10 Emergency Response Tribal Consultation Procedures 19
EPA Region 10 .|
Tribal Consultation And Coordination Procedures *
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of
EPA's policy is to consult on a govcrnmcnt-to-govcrnmcnt basis with federally
recognized tribal governments when EPA actions and decisions may affect tribal interests. The
EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011) establishes
national guidelines and institutional controls for consultation across EPA. These Region 10 Tribal
Consultation Procedures (Procedures) are consistent with the agency-wide consultation policy,
but include more specific guidelines for the consultation process to meet the needs and practices
of tribes in EPA Region 10 (Region 10).
These Procedures apply to Region 10 interactions with federally recognized tribes (tribes)
in Washington, Oregon, Idaho and Alaska.1 The U.S. Bureau of Indian Affairs maintains and
periodically updates and publishes a list of all federally recognized tribes.2 Whenever questions
arise regarding consultation with other entities, such as Alaska Native Corporations, tribal
consoitia, or other organizations representing or consisting of tribes or tribal members, the
Region 10 Tribal Consultation Specialist should be contacted.
These Procedures supersede the 2001 EPA Region 10 Consultation Framework, as well as
all Region 10 individual program, sector, and unit/team consultation procedures, except for the
Region 10 Enforcement Procedures in Indian Country. These Procedures do not supersede any
EPA agency-wide consultation policies or procedures, or those developed by individual tribes,
nor does it replace individual EPA-tribal memoranda of agreement, consultation plans, Tribal
Environmental Agreements (TEAs), or other specific agreements between Region 10 and a tribe
or tribes.3 Finally, these Procedures do not apply to Region 10 civil enforcement or compliance
assurance activities.4 Emergency response activities are addressed separately in Appendix A.
A large number of routine administrative and staff-to-staff level interactions and
communications occur between EPA and tribal government employees on a regular basis. These
Procedures do not to apply to these regular, ongoing interactions. These Procedures are not
intended to cover the large number of routine interactions between funding recipients and EPA
staff. Again, consult with the Region 10 Tribal Consultation Specialist for further guidance.
While this document describes the procedures that Region 10 expects to follow in
consulting with federally recognized tribes, it does not alter or create any legal rights or
obligations. Also, the possible circumstances where consultation might be appropriate are so
varied that these Procedures can not anticipate every scenario; thus there may be situations for
which these Procedures do not apply or are not appropriate, and the general ideas contained here
will need to be applied flexibly.
1 These Procedures do not apply to consultations initiated by EPA Headquarters' Offices.
2 The most current list is at 77 Fed. Reg. 47868 (August 1 0, 201 2)
3 Other types of agreements could include cooperative agreements and/or an Administrative Order on Consent for Remedial
Investigation/Feasibility Study under the Comprehensive Environmental Response. Compensation, and Liability Act
(Superfund), which may describe tribal consultation procedures for that particular project.
4 Primary guidance on civil enforcement matters involving tribes can be found in EPA's "Guidance on the Enforcement
Priorities Outlined in the 1 984 Indian Policy,'" "Questions and Answers on the Tribal Enforcement Process" and the Region
10 Enforcement Procedures in Indian Country.
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I. 10
Meaningful tribal consultation is an integral component of the federal government's
general trust relationship with federally recognized tribes. The federal government recognizes
the right of each tribe to self-government, with sovereign powers over their members and their
territory. Executive Order 13175 (November 9, 2000) directs federal agencies to establish and
implement processes to ensure meaningful and timely input by tribal officials in the development
of policies that have tribal implications.
The EPA has a longstanding policy that supports tribal involvement in decision-making.
In EPA's landmark 1984 Indian Policy.5 the Agency stated that the keynote of EPA's efforts
to protect human health and the environment "will be to give special consideration to tribal
interests in making Agency policy, and to insure the close involvement of Tribal Governments in
making decisions and managing environmental programs" that affect them. That policy has been
reaffirmed by each administration's EPA administrator since then, including the present EPA
Administrator, Lisa P. Jackson, in 2009.6
II. is
A. Definition of Tribal Consultation
The EPA Policy on Consultation and Coordination with Indian Tribes provides the
following definition:
Consultation is a process of meaningful communication and coordination between
EPA and tribal officials prior to EPA taking actions or implementing decisions
that may affect tribes. As a process, consultation includes several methods of
interaction that may occur at different levels. The appropriate level of interaction
is determined by past and current practices, adjustments made through this Policy,
the continuing dialogue between EPA and tribal governments, and program and
regional procedures and plans.
In many circumstances, planned and structured meetings between EPA and tribal
leaders are an essential part of the consultation process. For purposes of clarity and to avoid
misconimunication, this document will refer to those meetings as "leadership meetings." Many
tribes in Region 10 use the term "government-to-government consultation" to refer only to
leadership meetings.
Consultation includes seeking, discussing, and considering the views of federally
recognized tribal governments regarding a Region 10 action or decision. Consultation consists
of respectful, meaningful, and effective two-way communication, in an effort to achieve mutual
understanding between EPA and the Tribe of their respective interests and perspectives, before
EPA makes its decision or moves forward with its action.
5 EPA Policy for the Administration of Environmental Programs on Indian Reservations (November 8, 1984).
6 Memorandum: EPA Indian Policy (July 22,2009).
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The process of effective tribal consultation may include a wide range of communication
over the course of developing an EPA action or decision. This communication can include
meetings, telephone conferences, or internet-based communication to exchange technical
information at the staff or management level, discussions to establish effective processes for
coordination and planning, formal structured meetings between EPA and tribal leaders, or a wide
range of other communication in person or by e-mail, telephone or letter.
B. Consultation and the Public Participation Process
Tribal consultation is distinct from the EPA public participation and community
involvement processes. Tribal consultation should occur before any EPA public meeting or
workshop, to offer EPA the opportunity to consider input from interested tribal governments prior
to seeking public comment.
A tribe may benefit from participating in the EPA public participation and community
involvement processes, separate and apart from any consultation. A tribe may choose to submit
oral and written comments into the public record during the public comment period. This may be
necessary for the tribe to preserve its appeal rights, or to preserve a particular issue for appeal. It
may be helpful to discuss these specific issues with the tribe when planning the consultation.
Additionally, a tribe may choose to hold its own community or member meetings to
discuss EPA's action. The tribe may invite EPA to participate in these meetings or it may choose
to meet privately with its tribal community or membership.
III. in For
A. Roles and Responsibilities
The Administrator oversees the consultation process in Region 10. The
Regional Administrator and Deputy Regional Administrator are the top EPA officials for
Region 10. The Region 10 Office Directors report directly to the Regional Administrator,
and are members of the Executive Team. The Office Directors carry out major EPA program
activities. The Office Directors are responsible for ensuring that the appropriate staff are aware
of tribal consultation responsibilities and procedures, and that the procedures are carried out for
actions, decisions, projects, and similar activities carried out by their office.
The Region 10 Senior Tribal Policy Advisor (STPA) reports directly to the Regional
Administrator, and is a member of the Executive Team. The STPA works with EPA senior
managers and staff to ensure effective government-to-government relations with Tribes, in
accordance with EPA's consultation policy and practices. The STPA provides advice on effective
communication with Tribes and advises EPA senior management on and/or participates in
tribal consultations. Where there are significant tribal issues or a high degree of tribal interest,
particularly where the Regional Administrator or Deputy Regional Administrator is or may
be engaged personally, the STPA may be involved. The STPA involvement with consultation
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is in coordination with the Regional Administrator, Deputy Regional Administrator, or Office
Directors. Contact information for the STPA is available at http://vosemite.epa.gov/R10/tribal.
NSF/webpage/tribal+contacts.
The individual with primary responsibility for the EPA activity or action ("EPA Project
Lead"), such as a. project manager, permit writer, contingency planner, or on-scene coordinator,
ordinarily has the primary responsibility for the consultation process. Others within the Region
are involved or can support the consultation process; their roles are described here. The first
two listed below, the program-specific Tribal Specialist and the Region 10 Tribal Consultation
Specialist, are the Project Lead's initial points of contact for all tribal consultation support or
related questions.
Each Region 10 Office has a Tribal Specialist, who serves as the main point of contact,
and source of information and support, for tribal work within each program office. The Project
Leads should inform the Tribal Specialist of any activities that may affect tribes. The Tribal
Specialist is the first source of information about what steps to take, and what other resources
or staff are available to provide support, or should be informed. A list of Tribal Specialists is
available at http://yosemite.epa.gov/R10/tribal.NSF/programs/tribal+specialists.
The Region 10 Tribal Consultation Specialist, located in the Tribal Trust and Assistance
Unit (TTAU), Office of Ecosystems, Tribal and Public Affairs, is responsible for supporting
tribal consultation across the Region. Project Leads should inform the Tribal Consultation
Specialist of all tribal consultations, and should seek his or her advice regarding whether,
when, and how to consult in a given situation. Contact information for the Tribal Consultation
Specialist is available at http://yosemite.epa.gOv/R 10/tribal.NSF/webpage/tribal+contacts.
The Region 10 Tribal Coordinators, in TTAU, serve as liaisons between EPA and the
tribes, and also as project officers for certain grant programs that involve tribes. There is a Tribal
Coordinator assigned to each tribe in Region 10. The Tribal Coordinators are generally familiar
with each tribe's environmental concerns, political structure, and relationship with EPA. The
appropriate Tribal Coordinator should be aware of, and often will assist with, the consultation
process, and can be an invaluable resource because of his or her familiarity with each tribe. The
Tribal Consultation Specialist will involve Tribal Coordinators when appropriate. A list of Tribal
Coordinators is available at http://yosemite.epa.gov/R10/tribal.NSF/webpage/tribal+coordinators.
The Region 10 Alaska Resource Extraction Tribal Policy Advisor, in the Alaska
Operations Office, coordinates tribal consultation and community involvement for Alaska
resource extraction projects. The Alaska Resource Extraction Tribal Policy Advisor often
will work closely with the Project Lead on tribal consultation involving large scale resource
extraction projects that involve multiple Alaska tribes. Contact information for the Alaska
Resource Extraction Tribal Policy Advisor is available at http://yosemite.epa.gov/R10/tribal.
NSF/webpage/tribal+contacts.
The Region 10 Office of Regional Counsel (ORC) should be consulted when questions
arise over application of federal Indian law or EPA policies, potential liability of a tribe under an
environmental statute, tribal jurisdiction or authority, Indian country boundaries, or other related
legal issues. If a tribal government plans to have an attorney present at any interaction with the
Region, ORC should be notified. Contact information for the ORC is available at http://www.cpa.
gov/ogc/regional.htm.
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B. Region 10 Representation for Tribal Consultation
The main point of contact for EPA during the course of the consultation is ordinarily
EPA's Project Lead. During any leadership meeting, a senior EPA official, usually the Regional
Administrator, Deputy Regional Administrator, an Office Director, or one of their Deputies,
should be designated to represent EPA. Where there are significant tribal issues or a high
degree of tribal interest, particularly where the Regional Administrator or Deputy Regional
Administrator is or may be engaged personally, the STPA may be involved. The appropriate EPA
official for a leadership meeting depends on who within Region 10 is delegated the authority
to make the decision or take the action in question, and also on the level of representation on
the tribe's part. Often if a tribal chair participates personally, the tribe will expect EPA to be
represented by the Regional Administrator, but this can depend on a number of factors including
available resources, schedules, and the stage of the EPA action (for example, early in a process,
tribal officials may be satisfied with, or prefer, meeting with EPA technical or program staff).
IV. for
The Region should consult with a tribe when making decisions, taking actions, managing
projects, or engaging in similar activities, when the tribe's interests might be affected. The
Project Lead should seek the advice of the Regional Tribal Consultation Specialist and the
Project Lead's Unit Manager and/or Office Director to determine whether a given EPA activity
warrants consultation in view of the following considerations.
A. Types of Activities That May Be Appropriate for Consultation
The broad scope of consultation contemplated by the EPA Policy on Consultation and
Coordination with Indian Tribes and the Region 10 Procedures creates a large number of actions
that may be appropriate for consultation.
The following list of Region 10 activities are normally appropriate for consultation if they
may affect tribes:
« Regulations or rales
« Policies, guidance documents, directives
« Permits
« Civil enforcement and compliance monitoring actions7
« Response actions and emergency preparedness8
« National Priority Listing and deferral decisions
« State or tribal authorizations or delegations
« Designation of disposal sites
• EPA activities in implementation of U.S. obligations under an international or
tribal treaty or agreement
7 Primary guidance on civil enforcement matters involving tribes can be found in EPA's "Guidance on the Enforcement
Priorities Outlined in the 1984 Indian Policy,""Questions and Answers on Tribal Enforcement Process" and the Region 10
Enforcement Procedures in Indian Country.
8 The terra "response" as defined under the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) includes removal and remedial actions. For EPA Region 10 Emergency Response Tribal Consultation
Procedures see Appendix A.
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State Actions. When requested, Region 10 generally will agree to consult with a tribe
on state-led actions where Region 10 has the ability to change or veto the state action and the
proposed action has the potential to affect that tribe's interests. EPA's approach will be to work
with both the tribe and state to address potential effects on tribal interests. EPA will take tribal
concerns and impacts into account in its exercise of any oversight authority.
Other Federal Agency Actions. In some circumstances, EPA has a secondary or
oversight role in actions or decisions by other federal agencies. Three examples (out of many
more possibilities) are (1) federal actions that require Environmental Impact Statements, which
EPA reviews and comments on under Clean Air Act Section 309 and related regulations, (2)
permits issued by the U.S. Army Corps of Engineers under Clean Water Act Section 404,
which EPA may review, and (3) some cleanup actions by other federal agencies under the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In such
circumstances, EPA would encourage a tribe seeking to consult with the United States to work
directly with the federal agency with the most direct responsibility for the action or decision
in question. However, EPA would consider a tribe's request to consult with EPA based on the
specific circumstances, including the extent of EPA's active involvement or influence in the
decision or action, whether EPA has a range of options or discretion in connection with its role,
and whether EPA involvement would contribute significantly to the tribe's direct consultation
with the other federal agency or agencies involved.
B. Whether Tribal Interests Are Affected
At the beginning of a proposed project or action, the Project Lead should make an initial
determination whether the interests of one or more tribes may be affected by the action, taking
into account the following considerations:
Geographic Considerations
• Action on or adjacent to Indian Country or an Alaska Native Village, or
nearby (such as within the same airshed or watershed) if the action may affect
a tribe's health, resources, rights, or traditional way of life
« Action within the "usual and accustomed areas"9 of a federally recognized
tribe that may affect a tribe's resources, rights, or traditional way oflife
Tribal Resources
« Action that may affect the treaty-reserved resources of a tribe
• Action that may affect the public health in the tribal community
« Action that may affect the cultural, traditional, or subsistence resources of a
tribe or a tribe's traditional way of life
Tribal Ownership
« Action related to a facility owned or managed by a tribal government
9 In some cases, tribes not only hold reserved fishing, hunting and gathering rights within reservation areas but also retain
rights in ceded territories that were their "usual and accustomed" hunting, fishing or gathering places. Within EPA Region
10. these rights are incorporated into the treaties of most tribes.
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The Project Lead may review maps of federally recognized tribal government locations,
Indian Country,10 Alaska Native Village locations, "usual and accustomed" areas, watersheds of
interest, and Indian Claims Commission maps11 to assist in the initial determination of whether
one or more tribes' interests might be affected by the action. Some of this data will be available
in EPA's Interactive Tribal. Mapping Tool for Region 10 personnel, which will allow Region 10
personnel to see which tribes, or tribal areas of interest, are near to a proposed project or action
location. The appropriate Tribal Coordinator can assist with these resources.
The Project Lead should not rely solely on maps to assess whether a tribe's interests
might be affected by an EPA action because most traditional use areas of Region 10 tribes are not
mapped. For example, a tribal family's berry picking, hunting or fishing areas may not be well
known to others, especially outside of the tribe. The Tribal Coordinator assigned to that particular
tribe or region can help with these issues. The Tribal Coordinator or Project Lead may call tribal
environmental staff to gauge tribal interest, but note that this coordination with a tribe does not
take the place of an offer to consult.
V. of
To make sure that consultation is meaningful and timely requires communication early
enough to potentially affect the action or decision, or the data collection associated with it. This
will often involve notifying a tribe of an expected action or decision, providing information
about the decision to the tribe, discussing major policy and environmental considerations, and
exchanging information and viewpoints at a program and technical level.
It will often be important to provide an opportunity for similar communication far enough
along in the process that EPA can provide significant detail about the decision or action the
Region is considering. In some cases there is a single time period when both of these objectives
can be achieved; in other cases, it may be necessary to consult early in the Region's process, and
then consult again at a later point when the EPA action is more developed. The ideal approach
is to have active communication throughout the data gathering and decision process about the
scope and nature of consultation that the tribe desires.
The timing of tribal elections and fishing, hunting and gathering seasons, etc., is
important to consider in timing a consultation. Contact the Tribal Coordinators for more
information. The North Slope Protocol is a great resource for this information in Alaska.
10 In 1948 Congress codified the definition of "Indian Country"'... as (a) all land within the limits of any Indian reservation
under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-
ways running through the reservation, (b) all dependent Indian communities within the borders of the United States whether
within the original or subsequently acquired territory thereof, and whether within or without the limits of the state, and (c)
all Indian allotments, the Indian titles to which have not been extinguished including the rights-of-way running through the
same (18 U.S.C § 1151).
11 See USGS Website at http://rockyweb.cr.usgs.gov/outreach/lewisclark/indianlandsinaps.html
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VI. 10
A. Initiation by EPA
1. EPA to Consult
Once the Region 10 Project Lead determines that consultation is warranted, EPA should
send a letter to the appropriate tribe offering to consult. The Region 10 Project Lead should draft
the letter, and can seek input from the Region 10 Tribal Consultation Specialist, and program-
specific Tribal Specialist, who can also provide sample letters. The letter should:
« Be addressed to the Tribal Leader (eg. Tribal Chair, Tribal President, or First
Chief), with a copy to the tribe's environmental program staff, and the EPA
Tribal Coordinator
« Be signed by an Office Director or the Regional Administrator
• Describe the issue at hand clearly, avoiding or clearly defining legal and
technical terms and acronyms
« Describe the upcoming EPA action or decision
« Include maps, technical data, and other explanatory or supporting information
as appropriate and available
« Relay process timelines and schedule considerations
« Identify the Project Lead, who will work with the tribe to arrange all aspects
of the consultation
« Request that the tribe respond to the Project Lead, indicating whether or not
the tribe intends on pursuing consultation
« Request response by a date that allows adequate time for a tribal council
meeting or other internal deliberations by the tribe (typically four weeks from
receipt of letter)
« Request that the tribe provide the name of a. tribal representative who will
serve as the point of contact for planning the consultation, if the tribe wishes
to go forward with consultation
« Request any policy that the tribe may have regarding HPA consultation with
them
« Identify or propose timeframes for starting and ending consultation.
Whenever possible and depending on timing and number of tribes involved, the Project
Lead should follow up with a phone call, e-mail, or fax to the tribal environmental program or
department (or other appropriate tribal department) to ensure receipt of the letter and to open
dialogue about the potential consultation.
2. If a Tribe
If a tribe indicates it does not want to consult on a given matter, EPA consultation efforts
are normally concluded. The best practice is to document this in the case or project file and
inform the Region 10 Tribal Consultation Specialist for tracking purposes. This does not relieve
Region 10 of any general trust responsibility it may have to consider the interests of the tribe.
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3. If a Tribe Does Not Respond
If a tribe does not respond by the date provided in the consultation invitation letter,
when working with one or a small number of tribes, the KPA Project Lead should work with the
Tribal Coordinator to reach out to the tribe, usually through e-mails and phone calls to the tribal
environmental department. If there is still no response from the tribe, this should be documented
in the file and reported to the Regional Tribal Consultation Specialist, and would normally
conclude the Region's efforts to initiate consultation. This would not relieve Region 10 of any
general trust responsibility to consider the interests of the tribe.
Where EPA offers to consult with a large number of tribes, the Region may, in addition to
sending the initial invitation to consult, send e-mails and publicize the consultation opportunity
in appropriate publications and at relevant forums. It may be impractical for Region 10 to follow
up with individual phone calls or letters to all the tribes.
B. Initiation by a Tribe
Region 10 generally will agree to consult when a tribe requests it, assuming the potential
action or decision could affect that tribe's Interests. When EPA receives a written request from
a tribal leader, the letter should be forwarded to the appropriate program office, which should
acknowledge the receipt of the letter or request within two weeks and should respond to the letter
in a reasonable time. The Project Lead should notify appropriate personnel in their own office,
including their office Tribal Specialist, as well as the Region 10 Tribal Consultation Specialist,
who will enter information about leadership meetings in the Region's consultation database.
If it is unclear which program office should take the lead on a consultation request, the
request should be forwarded to Regional Administrator's Office for a decision. The response
letter from EPA should designate a point of contact to work with the tribe, and request that the
tribe identify a tribal point of contact, to arrange the consultation.
C. Planning the Consultation Process
Each tribe has its own governmental structure, and exercises sovereign powers over
its members and territories. For that reason, there is no "one size fits all" consultation process
template. Consultation Is most effective when the approach is individualized to the particular
tribe and EPA action. The EPA and tribal points of contact should work together in order to
develop a mutually acceptable approach to planning, preparing for, and implementing the
consultation process. The points of contact should work closely with one another, while at
the same time communicating with their own leadership to ensure support for the developing
approach.
The EPA and tribal points of contact should address the following issues of the
consultation:
1. Goals Expectations of Party
The EPA and tribal points of contact should work with their respective leadership to
identify each party's goals and expectations, and to determine how to structure the consultation
process to address those goals and expectations.
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2. Consultation Policies Procedures
The points of contact should discuss whether the tribe has developed its own consultation
policy or procedures. Any tribally developed consultation policies or procedures should be
incorporated into the consultation planning and implementation, where appropriate.
In addition to the EPA Policy on Consultation and Coordination with Indian Tribes, there
may be program-specific national EPA tribal consultation guidance. (For example, the Office of
Air Quality Planning and Standards developed "Consulting with Indian Tribal Governments" in
2009.) Project Leads should contact their respective headquarters offices to determine if such a
policy exists, and, if so, should incorporate those procedures into the consultation process.
3. Identllcation of Authorized Tribal Official
The Project Lead should work with the tribe to specify who will represent each party
at each point during the consultation process. It is important to verify that the specified tribal
representative is authorized to represent the tribe for the purposes of consultation, to avoid
misunderstandings that can arise from dealing with consultants, attorneys, or tribal staff members
who may be communicating with EPA without the authority to represent the tribe as a whole.
4. Scope and Number of Meetings
The EPA and tribal points of contact should determine whether the consultation topics
can be covered in a single meeting or whether the consultation topics will require a series of
meetings, possibly including technical exchange meetings and one or more leadership meetings.
5. Consultation Plan Format
The parties should discuss whether a written consultation plan is needed, or a more
formal Memorandum of Understanding (MOU), or whether verbal/email planning will suffice.
It may be appropriate to develop a MOU for particularly complex consultations, such as those
involving multiple federal agencies, tribes, legal authorities, decision points, and/or regulatory
processes. ORC must be involved in the development of any MOU.
6. Setting the Leadership Meeting Date Location
The points of contact should begin setting the meeting date(s) at the earliest opportunity,
as it may take weeks of planning to align calendars of the appropriate participants with the
schedule for the EPA action or decision. Timing of meetings will need to take into account
EPA's calendar and a tribe's administrative, subsistence, commercial fishing, and cultural events
calendars. Leadership meetings should be held face-to-face whenever possible, preferably
on tribal homelands. If travel money or time constraints make such a visit impossible, the
parties may agree to meet via video or telephone conference. See Section D.3 below for more
information on leadership meetings.
7. Information Exchange
The points of contact should discuss in detail what information each party will need for
effective consultation. Both EPA and the tribe may have technical or factual information relevant
to the consultation. This information should be shared between the parties, whenever possible.
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8. Consultation Facilitation
The EPA and tribal points of contact should discuss and agree on whether there will be
facilitation for any meetings during the course of the consultation. The parties may decide upon
someone from their respective staffs, often the EPA Tribal Coordinator, or may choose to hire an
independent third party, if resources allow. If the parties elect to forgo a facilitator, it is important
to pay particular attention to potentially different communication styles.
D. Conducting the Consultation
1. Information Exchange and Open Communication
Consultation shall be conducted in good faith and in a climate of mutual respect. Region
10 staff should work hard to understand the tribe's priorities, perspective, and constraints, and to
explain EPA's. EPA should make a concerted effort to identify solutions that do not negatively
impact a tribe's rights, resources and interests. The Project Lead should understand and comply
with any U.S.-tribe agreements (treaties, MOA's) when identifying and evaluating decision
alternatives. The Project Lead should also apply the policy goals of the 1984 EPA Indian Policy.
Most tribe-EPA communication during the consultation process takes the form of
information sharing, technical discussion, and joint planning, and involves staff and management
of both EPA and a tribe. EPA should timely and efficiently disseminate relevant information to
tribes and should seek a reciprocal timely receipt of information from tribes. This is a critical
part of the consultation process in most cases. The tribe and EPA may wish to designate technical
points of contact to discuss data and findings in advance of the leadership meeting. When EPA
and a tribe are effectively communicating and coordinating in an early, meaningful way, conflict
is reduced or avoided, and in some cases a tribe may feel its interests have been met without the
need for further consultation at the leadership level. In other cases, this will serve as an important
preliminary step to a productive leadership meeting.
There may be situations where a tribe lacks the resources to conduct a technical or legal
review. Depending on the degree of tribal interest, and practical considerations such as timing
and resources, it may be beneficial to provide an additional technical meeting or workshop where
information can be exchanged. The EPA Project Lead should help identify the various decision
points and potential topics or issues that may be of particular interest to the tribe. For example, in
the development of a. permit there may be technical support documents created that assist EPA in
making decisions. The tribe may wish to have a workshop about the technical support document
so that input can be provided and the parameters of EPA's authority can be best understood.
Sometimes, it is difficult for EPA to meet tribal expectations, especially when EPA lacks
the discretion or authority to fully resolve all tribal concerns. EPA's authority is often subject
to specific statutory and regulatory limitations, and the extent with which it can address tribal
expectations will vary on a case-by-case basis. Clarifying these issues in the consultation process
can be very helpful.
2. Sensitive Information, Record-Keeping Freedom of Information Act
It is important to promote full and frank exchange of views during government-to-
government consultation with tribes. These interactions may include discussions relating to
issues of unique sensitivity to tribes such as cultural practices, uses of environmental resources,
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and locations of cultural resources. There may also be sensitivity regarding tribal relationships
with surrounding states and jurisdictional issues. In preparing any records memorializing
consultations with tribes, the EPA Project Lead should consider these potential sensitivities in
determining the level of detail to include. The EPA Project Lead should also consider and discuss
with tribes the fact that written records of consultations, or other documents exchanged between
EPA and Tribes during the consultation and coordination, ordinarily will not be privileged or
otherwise protected from disclosure under FOIA. For advice on specific situations, please consult
the Office of Regional Counsel.
3. Leadership Meeting
It will often be appropriate to offer to meet with a tribe at the leadership level when
EPA anticipates or proposes an action that may affect a tribe. The Project Lead should seek the
Region 10 Tribal Consultation Specialist's advice regarding leadership meetings. The executive
leadership of EPA and the tribal government officials may have one or more meetings. The
tribal and EPA points of contact should discuss and agree on the arrangements and expectations,
including the agenda, for each leadership meeting in advance of the meeting. Generally, the
agenda should include:
« Introductions
« Statement of meeting purpose, including identification of EPA action or
decision.
« Statements from each party, usually focused on goals and expectations for the
consultation
• Presentation of information, both from HPA and the tribe
« Discussion and input
« Identification of next steps
The EPA and tribal points of contact should summarize these arrangements and
expectations for the leadership meeting in writing, such as in an e-mail message or a letter,
depending on the level of formality appropriate under the circumstances. It is also usually
advisable to send a letter to the tribe after the leadership meeting summarizing the key issues
discussed and addressing any follow-up tasks.
4. Consulting with Multiple Tribes
When offering to consult with a large group of tribes or all tribes in Region 10, a letter
should be sent to each tribe. The most feasible approach may be to carry out the consultations
in a hub (centralized) location or through conference calls and webinars, depending on practical
considerations such as the number and location of the tribes involved, the facilities, and other
resources available. Hub consultations normally are arranged in areas that can accommodate
a large meeting and are central to the maximum number of tribes, and where tribes have
expressed interest, to the extent practical. In multiple party consultation, it is important for EPA
to know who the designated tribal representative is for each tribal government participating. If
the consultation involves a large number of tribes or all tribes within the Region, a lead EPA
Tribal Coordinator may be appointed to coordinate work with the program. It is important to
discuss these issues with each tribe involved, as referenced in Section VIC, to ensure mutual
understanding about the consultation process, particularly if one or more Tribes request
individual government-to-government consultation.
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5. Telephone Conferences
As described in Section VIC, if it is determined that the most feasible approach for a
consultation is through a telephone conference, participants should take extra care to ensure the
consultation retains appropriate protocol. Consultation by telephone can present communication
challenges such as determining when someone wishes to speak and inability to read body
language. It is important to allow periods of silence to ensure tribal participants have the
opportunity to speak. It is also helpful to have the facilitator stop occasionally and ask if anyone
has points or questions they would like clarified or addressed.
6. Visit to Tribe
If the consultation will involve a. visit by EPA to a tribe, the EPA and tribal points of
contact should consider building other activities, in addition to the consultation, into the visit.
The tribe may wish to host a tour of environmental sites and projects for EPA representatives.
Other options may include working with the tribe to host a public meeting or workshop, visiting
the tribe's cultural center or museum, or meeting with traditional tribal leaders and elders. If
possible, such activities should be scheduled before the consultation.
7. Coordination with Other Federal Agencies
EPA should actively seek opportunities to conduct tribal consultations jointly with other
federal agencies when EPA and one or more other federal agencies have related actions that
affect tribal interests. This type of federal partnership could reduce the burden on a tribe and may
also result in improved protection of human health and the environment. Discussion with state or
local agencies may be appropriate if they have related actions, but they are not part of the federal
consultation process; their involvement should be discussed with the tribe in advance of any
meeting. Tribes are generally entitled to meet with federal government representatives only, if
that is their preference.
8. Including the Public, the Media, or Other Participants In Tribal Consultation
Participation and attendance at EPA-tribe consultation meetings is generally limited to the
representatives of EPA and the tribe. Consultants employed by EPA or the tribe, or third parties
such as intertribal organizations, tribal consortia, environmental or non-profit organizations, or
state or local governments, may be included as long as there is no objection from either side.
EPA and the tribe may agree to grant a party "observer status" where that party can listen to the
proceedings but not participate, to provide the third party an opportunity to better understand
EPA and tribal issues and priorities. Media are excluded from consultation unless both parties
agree prior to the consultation.
9. Translation and Recording
There may be instances within Region 10 when a translator may be required for
meaningful consultation. It is important to discuss the need for a translator ahead of the meeting.
It is also important to discuss in advance whether either party intends to record any meetings (in
person or telephonic).
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Tribal Consultation And Coordination Procedures
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E. Required FoIIow-Up and Reporting
In accordance to the EPA Policy on Consultation and Coordination with Indian Tribes,
Region 10 will provide feedback to the tribe(s) involved in the consultation to explain how
their input was considered in the final action. This feedback should be a formal, written
communication from a senior EPA official involved to the most senior tribal official involved
in the consultation. Each individual that participated in the consultation should receive a copy
of this communication, as should the Region 10 Tribal Consultation Specialist for purposes of
consultation tracking requirements.
Region 10 must develop a semi-annual agenda and submit the Agenda or an update
to EPA's American Indian Environmental Office (AIEO) by October 1st and April 1st of each
year. The semi-annual agenda consists of a list of pre-identified activities that Region 10 plans
to consult upon in the future. Submission of the Agenda is satisfied by entering the relevant
information in the Tribal Consultation Opportunities Tracking System (TCOTS, http://yoscmitc.
epa.gov/oita/TConsultation.nsf/TC?OpenView). TCOTS requires the entry of a small set of
standardized information used to track the consultation including a start and end date and the
primary point-of-contact. The information provided is used as the basis for posting consultation
information outside EPA for tribes and the public. In addition. Region 10 is responsible for
submitting brief summaries of completed consultations to AIEO as soon as practicable once
consultation is complete. The Region 10 Tribal Consultation Specialist is responsible for tracking
and inputting required consultation information into TCOTS. Please contact the Region 10 Tribal
Consultation Specialist for additional information on reporting requirements.
VII. or
Where a federal action might affect historical or archaeological resources, there are a
number of laws and procedural requirements that might be triggered, including the American
Antiquities Act of 1906, the Historic Sites, Buildings, Objects, and Antiquities Act of 1935, the
National Historic Preservation Act of 1966, and the Native American Graves Protection and
Repatriation Act of 1990. These laws contain a number of requirements, some of which are
very detailed, and may overlap with these tribal consultation procedures and/or the National
Environmental Policy Act (NEPA). Often the NEPA process will involve an initial screening as
to whether any historical or archaeological resources might be impacted. When working on a
project that might involve any resources of this nature, it is very important to consult with ORC
to determine whether tribal consultation needs to be coordinated with any additional procedures
related to resources protected by law.
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A
EPA Region 10 Emergency Response Tribal Consultation Procedures
The EPA Region 10 Emergency Management Program (BMP) within the Office of
Environmental Cleanup (ECL) Is responsible for a range of assessment and cleanup actions that
vary in their duration, complexity and time-critical nature. These actions may be in response to
oil or chemical spills, as well as to natural and man-made disasters. Cleanups, such as Removal
Actions, may be considered non-time critical, time-critical, or emergency response in nature.
The urgency and dynamics of a Removal Action may affect EPA's ability to fully implement all
four phases of tribal consultation described in EPA policy (identification, notification, input, and
follow-up).
Non-Time Critical Removal Actions
Non-time critical removal actions, which may be conducted or overseen by either Federal
On-Scene Coordinators or EPA Region 10's Remedial Cleanup Program, generally allow for at
least a 6-month planning period prior to the initiation of cleanup activities on scene. Non-time
critical removal actions require an engineering evaluation and cost analysis (EE/CA) to evaluate
the cleanup action alternatives being considered. A decision document (Action Memorandum) is
subsequently developed to document the selection of the cleanup activity. Given the pace of the
non-time critical cleanup activity, Region 10 generally should fully implement the EPA Region
10 Tribal Consultation Procedures when EPA actions or decisions may affect tribal interests.
In particular, EPA should provide opportunities to consult during or before the public comment
period and prior to issuing the Action Memorandum.
Time-Critical Removal Actions
For time-critical removal actions, an EE/CA and public comment period is not required
but an Action Memorandum is still developed to document the cleanup decision, in most cases
prior to a cleanup activity taking place. For time-critical removal actions, EPA staff should
coordinate closely with Tribal environmental staff. To ensure that Tribal leadership are also
informed of these cleanup activities, EPA should offer formal consultation directly to Tribal
leadership prior to approval of the Action Memorandum, whenever time allows. In some cases,
EPA may need to approve of the Action Memorandum and commence cleanup activities without
delay and in those cases, formal consultation should be offered as soon as possible during
preparations and/or commencement of cleanup activities on scene.
Emergency Removal Actions
During emergency actions, out of necessity, the Federal On-scene Coordinator or the
Unified Command will make dozens of critical decisions on a real time basis throughout the day
and night. In order to provide meaningful input during the emergency decision-making process,
parties typically must be on scene and participating in the response action. Consistent with the
National Contingency Plan, when EPA is notified of a spill or release that could potentially
impact Tribal interests, EPA's Duty Officer should provide verbal notification to any affected
tribe. This verbal notification ordinarily should be coordinated through the U.S. Department of
Interior or the Bureau of Indian Affairs.
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There are two ways potentially affected tribes may participate in or monitor these
emergency response activities. First, if a Unified Command System is established on scene to
manage the emergency situation, EPA should, at the time of notifying the Tribal staff, invite the
Tribe(s) to send a representative to the scene to join in the Unified Command, serving as either a
qualified Tribal Incident Commander or as a technical specialist. Second, EPA produces pollution
reports (POLREPS) during emergency actions to document key issues and decisions. EPA
should add any potentially affected Tribes to the POLREP email distribution, thereby providing
current and ongoing cleanup information to the Tribe if it is unable to participate directly, on
scene. During emergency response actions, an Action Memorandum is only written for fund-
lead cleanups, and even then it is usually written after any/all response and cleanup activities are
completed due to the immediate need to protect public health and the environment.
Due to the often chaotic and uncontrolled nature of emergency response to spills and
releases, the ability to conduct other aspects of consultation with potentially affected Tribes
must be made on a case by case, incident-specific basis, with the goal of keeping the Tribe fully
informed, and providing meaningful opportunity for tribal input.
Summary
1. EPA Region 10 will follow the full tribal consultation process for all non-time critical
removal actions.
2. For time-critical removal actions that have less than a 6 month planning period, EPA
Region 10 will make all attempts to follow the full tribal consultation process. In some
cases, due to the urgency and dynamics of the removal activity, the tribal consultation
process may take place concurrently to the cleanup activity.
3. During Emergency Response activities, EPA Region 10 will continue to notify all af-
fected tribes regarding oil and chemical spills and releases that potentially affect Tribal
interests. Further, Tribes will be invited to send a representative to participate on scene in
the Unified Command. EPA will also add affected Tribes to the email distribution of all
POLREPs. During emergencies, decisions regarding other aspects of Tribal consultation
will be made on a case-by-case basis.
EPA Region 10
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United States
Environmental Protection
Agency
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