EPA
OAR HANDBOOK FOR INTERACTING WITH
TRIBAL GOVERNMENTS
i%*l •»' % 1 * 1 ' '•* IB r '
December 2017
This version supersedes the February 2014 edition
The Office of Air and Radiation
i
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OAR Handbook for Interacting with Tribal Governments
DISCLAIMER
This handbook is intended solely as guidance for employees of the United States Environmental
Protection Agency (EPA), Office of Air and Radiation (OAR). This document is not a regulation and
does not create or affect any legal obligations or any right or trust responsibility. This handbook
refers to coordination and consultation activities with federally recognized Indian tribes, which OAR
undertakes generally, as a matter of policy. This document may be revised as appropriate without
consultation or notice.
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OAR Handbook for Interacting with Tribal Governments
TABLE OF CONTENTS
FIGURES 4
LIST OF ACRONYMS 5
I. INTRODUCTION 6
A. WHY DEVELOP A HANDBOOK FOR TRIBAL INTERACTIONS FOR THE OFFICE OF AIR AND RADIATION? 6
B. WHAT ARE THE INTERACTIONS BETWEEN OAR AND TRIBAL GOVERNMENTS? 8
C. EPA POLICIES REGARDING TRIBAL PROGRAMS 9
D. CONSIDERATIONS FOR EPA INTERACTIONS WITH TRIBES 13
E. WHAT IS THE DIFFERENCE BETWEEN COORDINATION VERSUS CONSULTATION? 14
F. WHAT DO OAR TRIBAL INTERACTIONS INCLUDE? 15
G. WHAT ARE THE ROLES OF THE OAR TRIBAL AIR PROGRAM CONTACTS? 18
II. IDENTIFICATION 19
A. INTRODUCTION 19
B. HOW TO DETERMINE IF AN ACTION AND/OR DECISION MAY AFFECT TRIBAL INTERESTS 20
C. FOLLOWING THE AGENCY'S ACTION DEVELOPMENT PROCESS FOR RULEMAKINGS 23
III. COORDINATION 24
A. WHAT IS COORDINATION? 24
B. GENERAL RECOMMEND A TIONS FOR COORDINA TION 24
C. PROCESS FOR CONDUCTING EFFECTIVE COORDINATION 26
IV. CONSULTATION 27
D. WHEN IS CONSULTATION REQUIRED? 27
E. STEPS TO EFFECTIVE CONSULTATION 29
F. EXECUTIVE ORDER 13175 CERTIFICA TION (IF APPLICABLE) 34
V. REPORTING REQUIREMENTS 35
VI. CONCLUSION 36
VII. APPENDIX 37
A-l. OAR TRIBAL AIR PROGRAM CONTACTS 38
A-2. OAR TRIBAL TEAM 38
A-3. OAQPS TRIBAL PROGRAM CONTACTS 38
A-4. OAP TRIBAL PROGRAM CONTACTS 38
A-5. ORIA TRIBAL PROGRAM CONTACTS 38
A-6. OAR TRIBAL CONSULTATION ADVISORS For Tribal Consultation Tracking System (TCOTS) 38
A-7. INCORPORATING TRIBAL CONSIDERATIONS INTO TIER 1 AND TIER 2 ACTIONS UNDER THEADP 38
A-8. OAR EFFECTS ON TRIBES ASSESSMENT FORM 38
A-9. TRIBAL COORDINATION AND CONSULTATION STRATEGY: RULEMAKINGS 38
A-10. TRIBAL COORDINATION AND CONSULTATION STRATEGY: VOLUNTARY PROGRAMS (Example) 38
A-ll. FACT SHEETS FOR TRIBES (Example) 38
A-12. TRIBAL CONSUL TA TION LETTER (Example 1) 38
A-12. TRIBAL CONSUL TA TION LETTER (Example 2) 38
A-12. TRIBAL CONSUL TA TION LETTER (Example 3) 38
A-13. CERTIFICATION MEMO FROM OAR TO OITA (Example) 38
A-14. MEMO CERTIFYING CONSULTATION FROM OITA TO OAR (Example) 38
A-15. RULEMAKING PREAMBLE LANGUAGE (Examples) 38
A-16. EPA RESPONSE LETTER TO TRIBE (Example) 38
A-l 7. KEY TERMS AND CONCEPTS 38
A-18. RELEVANT TRIBAL AND EPA ORGANIZATIONS 38
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OAR Handbook for Interacting with Tribal Governments
FIGURE 1: COORDINATION VERSUS CONSULTATION 15
FIGURE 2: OAR TRIBAL CONSULTATION AND COORDINATION ACTIVITIES 17
FIGURE 3: OAR ASSESSMENT OF POTENTIAL EFFECTS ON TRIBES 22
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OAR Handbook for Interacting with Tribal Governments
LIST OF ACRONYMS
ADP ACTION DEVELOPMENT PROCESS
AIEO AMERICAN INDIAN ENVIRONMENTAL OFFICE
AQAD AIR QUALITY ASSESSMENT DIVISION
AQPD AIR QUALITY POLICY DIVISION
BIA BUREAU OF INDIAN AFFAIRS
CAMD CLEAN AIR MARKETS DIVISION
CCD CLIMATE CHANGE DIVISION
CERT THE COUNCIL OF ENERGY RESOURCE TRIBES
CPPD CLIMATE PROTECTION PARTNERSHIP DIVISION
CTPG COMMUNITY AND TRIBAL PROGRAMS GROUP
DERA DIESEL EMISSIONS REDUCTION ACT
DOI DEPARTMENT OF THE INTERIOR
EJ ENVIRONMENTAL JUSTICE
EO EXECUTIVE ORDER
EPA UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OGC OFFICE OF GENERAL COUNSEL
HEID HEALTH AND ENVIRONMENTAL IMPACTS DIVISION
ITCA INTER TRIBAL COUNCIL OF ARIZONA
ITEC INTER-TRIBAL ENVIRONMENTAL COUNCIL
ITEP INSTITUTE FOR TRIBAL ENVIRONMENTAL PROFESSIONALS
NAAQS NATIONAL AMBIENT AIR QUALITY STANDARDS
NCAI NATIONAL CONGRESS OF AMERICAN INDIANS
NESHAP NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
NTAA NATIONAL TRIBAL AIR ASSOCIATION
NTOC NATIONAL TRIBAL OPERATIONS COMMITTEE
OAP OFFICE OF ATMOSPHERIC PROGRAMS
OAQPS OFFICE OF AIR QUALITY PLANNING AND STANDARDS
OAR OFFICE OF AIR AND RADIATION
OID OUTREACH AND INFORMATION DIVISION
OITA OFFICE OF INTERNATIONAL AND TRIBAL AFFAIRS
OMB OFFICE OF MANAGEMENT AND BUDGET
ORIA OFFICE OF RADIATION AND INDOOR AIR
OTAQ OFFICE OF TRANSPORTATION AND AIR QUALITY
RIC REGIONAL INDIAN COORDINATOR
RTOC REGIONAL TRIBAL OPERATIONS COMMITTEE
SPD STRATOSPHERIC PROTECTION DIVISION
SPPD SECTOR POLICIES AND PROGRAMS DIVISION
TAC TRIBAL AIR COORDINATOR
TAMS TRIBAL AIR MONITORING SUPPORT CENTER
TCA TRIBAL CONSULTATION ADVISOR
TCOTS TRIBAL CONSULTATION TRACKING SYSTEM
TEK TRADITIONAL ECOLOGICAL KNOWLEDGE
TEPS TRIBAL ENVIRONMENTAL PROFESSIONALS
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OAR Handbook for Interacting with Tribal Governments
I. INTRODUCTION
A. WHY DEVELOP A HANDBOOK FOR TRIBAL INTERACTIONS FOR THE OFFICE
OF AIR AND RADIATION?
On November 5, 2009, President Obama signed a Memorandum on Tribal Consultation1
directing all federal agencies to develop a plan to fully implement Executive Order 13175
("the Order").2 In response, the EPA released its Policy on Consultation and Coordination
with Indian Tribes on May 4, 2011 (the "Agency's Policy").3 The Agency's Policy
establishes broad standards to determine when the Agency should consult with federally
recognized tribal governments based on the Order and the principles expressed in the 1984
EPA Policy for the Administration of Environmental Programs on Indian Reservations
("1984 Indian Policy").4
One of the primary goals of the Agency's Policy is to fully implement both the Order and the
1984 Indian Policy, with the ultimate goal of strengthening the coordination, consultation,
and partnership between tribal governments and the EPA. The most basic result of this full
implementation is that the EPA takes an expansive view of the need for consultation in line
with the 1984 Indian Policy's directive to consider tribal interests whenever the EPA takes an
action that "may affect" tribal interests. The Agency's Policy is intended to be implemented
using existing EPA structures to the extent possible. The use of current EPA business
processes, such as the Action Development Process (ADP), National and Regional Tribal
Operations Committees (NTOC and RTOC), and tribal partnership groups is purposeful so
that consultation with tribal governments becomes a standard EPA practice and not an
additional requirement. Under the Agency's Policy, the EPA program and regional offices
have the primary responsibility for consulting with tribes and must ensure their respective
consultation plans and practices are in accordance with this Policy.
The OAR Handbook for Interacting with Tribal Governments (referred to as the "Handbook" or
"Document") is designed to provide specificity and guidance to OAR staff on how to conduct
coordination and government-to-government consultation ("consultation") with tribal
governments under the general umbrella of the Agency's Policy. This Handbook will assist OAR
personnel in reviewing OAR's actions and/or decisions to determine if they may affect tribal
interests and describes OAR's tribal interactions including coordination with environmental staff
and managers, tribal partnership groups (e.g., National Tribal Air Association (NTAA)) and
consultation with tribal governments. This Handbook evolved from prior guidance developed
and used by OAR's Office of Air Quality Planning and Standards (OAQPS) dated April 10,
2009.5 (For a definition of key terms and concepts within the document, see A-17 in the
Appendix.)
'November 5. 2009. Presidential Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation.
https://www.gpo.gov/fdsvs/pkg/DCPD-200900887/pdf/DCPD-200900887.pdf
2 Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal
Governments. https://www.gpo.gov/fdsvs/pkg/FR-2000-ll-09/pdf/00-290Q3.pdf
3 EPA Policy on Consultation and Coordination with Indian Tribes, https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-
with-indian-tribes-policv.pdf
4The 1984 EPA Indian Policy. https://www.epa.gov/sites/production/files/2015-Q4/documents/indian-policv-84.pdf
5 The Office of Air Quality Planning and Standards, Consulting with Indian Tribal Governments, dated April 10, 2009.
https://www3.epa.gov/ttn/naags/agmguide/collection/cp2/2009041Q oaqps tribal consultation policv.pdf
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OAR Handbook for Interacting with Tribal Governments
Early and meaningful tribal involvement is a cornerstone of the Agency's Policy and Executive
Order 13175. The Agency, in keeping with the federal trust responsibility, will ensure that tribal
concerns and interests are considered whenever the EPA's actions and/or decisions may affect
Indian country or other tribal interests. The EPA's fundamental objective is to protect human
health and the environment. This Handbook introduces OAR staff and managers to the basics of
coordination with tribes and consultation with American Indian governments within the context
of the work performed in OAR. It provides a roadmap for analyzing whether OAR actions and/or
decisions may affect tribes and if so, how to proceed. For the purpose of this document, the term
actions and/or decisions refers to any of the following, non-exclusive list of activity categories
that are normally appropriate for consultation if they may affect a tribe(s):
Regulations or rules.
Policies, guidance documents, directives. Not a11 of the act[vity
catfPDrips in thp
Budget and priority planning development. Agency's Policy, as
Legislative comments.6 listed here, are
Permits. applicable to OAR
Civil enforcement and compliance monitoring actions.7 actions and/or
Response actions and emergency preparedness.8 decisions.
State or tribal authorizations or delegations.
EPA activities in implementation of U.S. obligations under an international treaty or
agreement.
¦ Initiation or any significant change of voluntary/partnership programs.
For example, actions and/or decisions developed by OAR may include revisions to existing
regulations as set forth by the National Emission Standards for Hazardous Air Pollutants
(NESHAP) and the National Ambient Air Quality Standards (NAAQS), and the development or
revision of voluntary and partnership non-regulatory programs of plans and guidance.
Coordination and consultation on voluntary/partnership programs may be appropriate if the
Agency's actions and/or decisions may affect tribal interests. For additional guidance on these
programs, you should consult with your OAR Tribal Air Program Contact. (See A-l in the
Appendix.)
6 Legislative comments are a special case where, due to short legislative timeframes, consultation in advance of comment submission may not always
be possible. Nevertheless, the EPA will strive to inform tribes when it submits legislative comments on activities that may affect Indian country or
other tribal governmental interests.
7 Primary guidance on civil enforcement matters involving tribes can be found in "Guidance on the Enforcement Priorities outlined in the 1984 Indian
Policy" and "Questions and Answers on the Tribal Enforcement Process." This plan is intended to work with the Agency Consultation Policy in a
complementary fashion to ensure appropriate consultation with tribes on civil enforcement matters.
8 The term "response" as defined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) includes removals
and remedial actions. https://www.eDa.gov/suDerfiind/suDerfiind-cercla-overview
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OAR Handbook for Interacting with Tribal Governments
This Handbook describes the overall process of OAR tribal interactions and includes seven
sections:
¦ Introduction - Describes terms and general principles used to better understand the
importance of working with tribes.
¦ Identification - Helps to identify effects your action and/or decision may have on tribes or
tribal interests.
¦ Coordination - Discusses how to provide information to tribes and, if appropriate, how to
ensure their effective input and involvement in the action and/or decision development
process.
¦ Consultation - Discusses how to effectively consult with tribe(s) and provide written
feedback as to how their input was considered in the final action.
¦ Reporting Requirements - Describes OAR's reporting requirements under the Agency's
Policy to ensure the EPA's compliance in implementing Executive Order 13175.9
¦ Conclusion - Provides a recap of OAR's philosophy on coordination/outreach and
consultation with tribes.
¦ Appendix - Includes sample consultation letters, key terms and concepts, tribal program
contacts, tribal organizations, sample tribal coordination and consultation strategies, tribal
effects assessment form, etc.
B. WHAT ARE THE INTERACTIONS BETWEEN OAR AND TRIBAL
GOVERNMENTS?
The interactions between OAR and tribal governments are rooted in and guided by three key
concepts: tribal sovereignty, the government-to-government relationship, and the federal trust
responsibility to federally recognized tribes.
Tribal Sovereignty
Tribal sovereignty helps us understand with whom we are interacting. As sovereign entities,
Indian tribes retain sovereign powers over their members and
their territory. In light of tribal sovereignty and other Sovereignty means that
principles of federal Indian law, states and local governments federally recognized tribal
are generally precluded from exercising jurisdiction in Indian governments can set their
country.10 Each tribal government generally sets its own own priorities and goals for
• j i c -4. u u- i , *, their membership and
priorities and goals tor its membership and territory, territory
including those for environmental protection. Thus, sovereign
tribal governments generally have an interest in
environmental protection issues, including air quality issues, affecting their members and
territory.
9 Presidential Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation dated November 5. 2009.
http://www.gpo.gov/fdsvs/pkg/DCPD-200900887/pdf/DCPD-200900887.pdf
10 Indian country is defined at 18 U.S.C. § 1151 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-way 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 a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running
through the same."
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OAR Handbook for Interacting with Tribal Governments
The Government-to-Government Relationship
The government-to-government relationship helps us understand how we are to interact. The
EPA recognizes the government-to-government relationship between the United States and
federally recognized Indian tribes, and acknowledges
Indian tribes as sovereign governments retaining important Federal officials interact
inherent powers of self-governance. This relationship with representatives of
• i c , c ¦ , .• . •• federally recoqnized tribal
provides a framework tor interacting with tribes as jju
.,. . „ governments.
partners to address potential environmental issues of
mutual concern. The EPA has significant experience
across the Agency working and consulting with tribes on a government-to-government basis.
The Federal Trust Responsibility
The federal trust responsibility helps us understand why we interact with tribes. The federal
government has a trust responsibility to federally recognized tribes. Like other federal agenci
the EPA acts in accordance with that trust responsibility,
which includes coordinating and consulting with tribes when
taking actions or making decisions that may affect tribal
interests. In the EPA's landmark 1984 Indian Policy, the
Agency stated that the keynote of the EPA's efforts to
protect human health and the environment on Indian
reservations "will be to give special consideration to tribal
interests in making Agency policy, and to ensure the close involvement of tribal governments in
making decisions and managing environmental programs affecting reservation lands. "u
Similarly in a 1994 memorandum,12 the President directed all federal agencies to assess the
impacts of their plans, projects, programs, and activities on tribal trust resources, to assure that
tribal government rights and concerns are considered during the development of such plans,
projects, programs, and activities, and to the extent practicable and permitted by law, consult
with federally recognized tribal governments before taking actions or making decisions that
affect them.
The United States has a
trust responsibility to
federally recognized tribes
that includes the protection
of the sovereignty of tribes.
C. IPA POLICIES REGARDING TRIBAL PROGRAMS
The EPA recognizes the importance of respecting and protecting tribal treaty rights consistent
with the federal government's trust responsibility to federally recognized tribes and the
importance of ensuring that environmental justice is part of the EPA's work with federally
recognized tribes, state-recognized tribes, indigenous community-based and grass-roots
organizations, and others living in Indian country. The following EPA policies were developed
to complement the EPA Policy on Consultation and Coordination with Indian Tribes13 and to
ensure that tribal treaty rights and environmental and public-health concerns of tribes and
11 EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984.
http://www.epa.gov/tp/pdf/indian-policv-84.pdf
12Memorandum: Government-to-Government Relations with Native American Tribal Governments, April 29,1994 (59 Fed. Reg.
22951). http://www.fws.gov/policv/librarv/rg94frl0877.pdf
13 EPA Policy on Consultation and Coordination with Indian Tribes, https://www.epa.gov/tribal/epa-policv-consultation-and-coordination-indian-tribes
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OAR Handbook for Interacting with Tribal Governments
indigenous peoples throughout the U.S. and others living in Indian country are considered during
the development of EPA actions and/or decisions that may affect tribal interests.
EPA Policy on Consultation and Coordination with Indian Tribes: Guidance for
Discussing Tribal Treaty Rights
During the Treaty Era (1778 to 1871), tribes gave up land and rights to the United States through
treaties, while reserving specific land and rights for themselves.
Under the United States Constitution, treaties are the
"supreme law of the land" and hold the same legal force
and effect as federal statutes. Treaties are to be interpreted
in accordance with the federal Indian canons of
construction, a set of long-standing principles developed
by courts to guide the interpretation treaties between the
U.S. government and Indian tribes. As the Supreme Court
has explained, treaties are interpreted liberally as they
were understood by tribes at signing, with ambiguities
resolved in tribes' favor.14 Only Congress can modify or
repeal a treaty, and any modification or repeals must be
explicit.
In 2014, the EPA Administrator released a Memorandum commemorating the 30th anniversary of
EPA's Indian Policy.15 The Memorandum provided a clear statement on the need to honor and
respect tribal treaty rights in EPA's actions, "While treaties do not expand the EPA's authority,
the EPA must ensure its actions do not conflict with
tribal treaty rights. In addition, EPA programs should
be implemented to enhance protection of tribal treaty
rights and treaty-covered resources when we have
discretion to do so." To assist in implementing the
Administrator's statement on treaty rights, the Agency
developed and released in February 2016, the EPA
Policy on Consultation and Coordination with Indian
Tribes: Guidance for Discussing Tribal Treaty
Rights.16 The Guidance outlines a process to help EPA
staff navigate treaty rights discussions with tribes during tribal consultations. It is an initial step
in EPA's efforts to improve the methods and processes in place to meet the commitment to honor
and respect tribal treaty rights and resources protected by treaties.
Treaty rights most likely relevant to an EPA action are those that may affect a specific
geographic location and are related to the protection or use of natural resources, or related to an
environmental condition necessary to support the natural resource. EPA actions that are national
Treaties bind both the Federal
Government and the signing Indian
tribe or tribes, and generally constitute
recognition of rights to lands and
resources, as well as rights to fish,
hunt, and gather on both land ceded or
given up by tribes and on land retained
by tribes. Integrating consideration of
tribal treaty rights into EPA's decision
making process is consistent with the
federal government's trust
responsibility to federally recognized
tribes.
The Guidance does not create any new
legal obligations for EPA; expand the
authorities granted by the Agency's
underlying statues; alter or diminish any
existing EPA treaty responsibility; or
address other treaty rights provisions
such as tribal jurisdiction or reservation
boundaries.
14 111 interpreting treaty language. Courts have consistently upheld these three basic principles: 1) Uncertainties in Indian treaties should be resolved in
the favor of the Indians; 2) Indian treaties should be interpreted as the Indians signing the treaty would have understood them, and 3) Indian treaties are
to be liberally construed in favor of the Indians involved.
15 EPA Administrator's 2014 Memorandum Commemorating the 30th Anniversary of the EPA's Indian Policy.
https://www.eDa. gov/sites/production/files/2015-05/docunients/indianpolicvtreatvrightsnienio2014.pdf
16 EPA Guidance for Discussing Tribal Treaty Rights, https://www.epa.gov/sites/production/files/2016-
02/documents/tribal treaty rights guidance for discussing tribal treaty rights.pdf
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OAR Handbook for Interacting with Tribal Governments
in scope and not targeted to a specific geographical area are outside the scope of this Guidance -
for example, the development of National Ambient Air Quality Standards (NAAQS) under the
Clean Air Act. (For additional information, see Chapter IV - Consultations and/or contact your
OAR Tribal Air Contact.)
Also, in September 2016, the EPA entered into a Memorandum of Understanding (MOU) with
six other federal agencies and the White House Council on Environmental Quality, and the
Advisory Council on Historic Preservation regarding Interagency Coordination and
Collaboration for the Protection of Tribal Treaty Rights.17 By signing the MOU, EPA affirmed
its commitment to protect tribal treaty rights and similar tribal rights relating to natural resources
through consideration of such rights in agency decision making processes and enhanced
interagency coordination and collaboration.
Environmental Justice for Working with Federally Recognized Tribes and Indigenous
Peoples
Environmental Justice is the fair treatment and meaningful involvement of all people regardless
of race, color, national origin, or income, with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies. To achieve the goal of
environmental justice, the EPA seeks to protect the environment and health of overburdened
communities and provide them access to the Agency's decision-making process, so that
everyone has a safe and healthy environment in which to live, learn, and work.
In July 2014, the EPA Administrator released a memorandum issuing the EPA Policy on
Environmental Justice for Working with Federally Recognized Tribes and Indigenous
Peoples,18'19 "This policy establishes principles to ensure that achieving environmental justice is
part of the EPA's work with federally recognized tribes, state-recognized tribes, individual tribal
members, indigenous community-based and grass-roots organizations, and others living in Indian
country." The Policy is based upon the following key documents underpinning the EPA
environmental justice and tribal programs: Executive Order 1289820, Plan EJ 201421, and the
EPA Policy for the Administration of Environmental Programs on Indian Reservations (EPA
Indian Policy)22. It is designed to better clarify and integrate environmental justice (EJ)
principles in a consistent manner in the Agency's work with federally recognized tribes and
indigenous peoples. The Policy is composed of 17 principles which, when implemented
individually and together, can help improve the administration of EPA's programs, support the
fair and effective implementation of federal environmental laws, and provide protection from
disproportionate impacts and significant risks to human health and the environment in Indian
country. The Policy applies basic EJ principles in the following four focus areas:
17 Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal Treaty Rights.
https://www.epa.gov/sites/production/files/2017-02/documents/mou treat rights 12-01-16 final.pdf
18 EPA Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples.
https://www.epa.gov/sites/production/files/2015-02/documents/ei-indigenous-policv.pdf
19 Scope of Policy: federally recognized tribes, state recognized tribes, tribal members, indigenous community organizations, Native Hawaiians,
individual Native Americans, and others living in Indian country.
20 EO 12898. https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf
21 Plan EJ 2014. https://www.epa.gov/environmentaliustice/plan-ei-2014
22 EPA 1984 Indian Policy, https://www.epa.gov/tribal/epa-policv-administration-environmental-programs-indian-reservations-1984-indian-policv
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OAR Handbook for Interacting with Tribal Governments
1. EPA's integration of EJ in the Direct Implementation of EPA Federal Environmental
Programs, Policies, and Activities in Indian Country, and throughout the United States
(7 principles),
2. EPA's work with federally recognized tribes/tribal governments on EJ (3 principles),
3. EPA's work with indigenous peoples (state recognized tribes, tribal members, indigenous
community-based organizations, etc.) on EJ (4 principles), and
4. EPA's coordination and collaboration with federal agencies and others on EJ issues of
tribes, indigenous peoples, and others living in Indian country (3 principles).
Below are examples of EJ principles that EPA strives to implement in its work to protect
human health and the environment:
¦ Being responsive to the EJ concerns of federally recognized tribes, indigenous
peoples through the United States, and other living in Indian country.
¦ Understanding definitions of human health and the environment from the perspective
of federally recognized tribes and indigenous peoples.
¦ Using legal authorities to advance EJ throughout the United States, and in Indian
country (EJ in permitting, EJ in EPA actions/regulatory development, EJ in NEPA23,
EJSCREEN24, etc.)
¦ Developing and maintaining relationships, have open communication, and providing
meaningful involvement opportunities with indigenous peoples and communities.
¦ Identifying key points of contact in affected communities to facilitate meaningful
involvement and fair treatment on EJ issues and to better understand the
communities.
¦ Supporting the use of federal, tribal, and indigenous peoples' conflict
management/dispute resolution processes and traditional consensus building and
decision-making practices.
¦ Collaborating with other federal agencies to leverage resources to better
communicate, share information, and address the EJ concerns of federally recognized
tribes, indigenous people throughout the United States, and others living in Indian
country.
In summary, the tribal treaty rights and EJ policies emphasize the importance of not only
consulting with federally recognized tribes when developing Agency actions and/or decisions
that may affect tribal interests (i.e., tribal treaty rights); but also stress the importance of
providing early meaningful involvement opportunities at all stages of Agency activity, including
the development of public participation activities, the administrative review process, and any
analyses conducted to evaluate environmental justice issues — for federally recognized tribes,
indigenous peoples, and others living in Indian country. To achieve these goals, greater internal
coordination and collaboration is required among the Agency's tribal and EJ program staff, and
regional and Headquarters program staff. (For additional information or assistance, contact your
OAR Tribal Air Program Contact.)
23 National Environmental Policy Act (NEPA). https://ceq .doe.gov/
24 EJSCREEN is an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for
combining environmental and demographic indicators. https://www.eDa.gov/eiscreen
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OAR Handbook for Interacting with Tribal Governments
D, CONSIDERATIONS FOR EPA INTERACTIONS WITH TUBES
Each tribe is unique and differs in leadership, governmental and economic infrastructure, and
culture; as a result, no single set of protocols will meet the needs of all tribes. Rather, these are
general considerations and guidelines to help staff to approach all tribes with appropriate respect
and sincerity. All EPA staff now complete on a biennial basis an online course titled, "Working
Effectively with Tribal Governments".25 To further increase awareness and highlight the
relevance of tribal training for OAR, staff are encouraged to take additional OAR-focused
training, when offered, to gain a better understanding of relevant federal law, Indian programs
and government, Indian culture, and how these issues affect our work and interactions with tribes
on air issues.
Below are key considerations:
> Every tribe is culturally unique. You should be aware of and respect each tribe's cultural
concerns.
> The perception of encroachment on tribal sovereignty is one of the most significant issues
for tribes today. The issues of tribal treaty rights, resources, and boundaries are
particularly important to tribes. Tribes should, as much as possible, be included early in
the policy, guidance or rule development process to help ensure their input is meaningful.
> Tribes often have two tiers of government (e.g., legal/political and traditional). The duly
appointed tribal leader is not always the decision-maker. You should learn the system of
government used by a specific tribe before initiating contact; your OAR Tribal Air
Program Contact and the appropriate regional office can assist you with this.26 (For OAR
Tribal Air Program Contacts, see A-l in the Appendix.)
> While environmental issues are of concern to most tribes, they are also concerned with
many other issues such as poverty, unemployment, economic development, education
and health issues.
> There may be only one, a few or no tribal environmental professionals (TEPs) working
on environmental issues for a tribe. Most environmental professionals work on all aspects
of environmental issues (air, water, waste, etc.) for a particular tribe. Therefore, any
apparent lack of interest in a specific matter may, in reality, result from limited time and
resources, and their need to prioritize their environmental concerns. Tribes also tend to
approach environmental issues holistically rather than from the media-specific approach
that the EPA traditionally takes.
> One size does not fit all. Appropriate consultation may be different for each tribe; it is
important that you contact your OAR Tribal Air Program Contact to consider different
avenues for reaching out to the tribes.
> Tribes may be skeptical of federal or state governments so they may not be very receptive
to you at first. By taking time to inform the tribes appropriately, you will have gone a
long way towards building a fruitful, professional relationship. Your OAR Tribal Air
Program Contact can help since they have already developed relationships with many
tribes.
25 Working Effectively with Tribal Governments. http://workDlace.eDa.gov/elearning.html
26 Some tribes operate under long standing traditional systems; others operate much like the federal and state systems. Some are made up of elected
officials; others are made up of leaders chosen by a clan group or other traditional group of people in the community.
Updated 1.24.18 13
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OAR Handbook for Interacting with Tribal Governments
> Tribes typically are very interested in solving their own problems (related to self-
determination and sovereignty) regarding priorities, developing tools and products, etc.,
that are relevant to their tribe.
> Alaskan Native Villages are unique when compared to most other tribes. They face
significant challenges in their relationship with federal agencies, in the structure of their
governments and for resources available to them. Additional planning may be necessary
to address their specific needs.
I. WHAT IS THE DIFFERENCE BETWEEN COORDINATION VERSUS
CONSULTATION?
The OAR Handbook describes an overall process that includes two important and distinct types
of interactions with tribes: the first is coordination and the second is consultation (see
Figure 1). Coordination is generally conducted with tribal environmental professionals (TEPs)
(e.g., tribal air program directors and immediate staff;
although other tribal personnel or tribal officials may be Coordination is generally always
involved) in advance of any policy, guidance or warranted; however, government-to-
, . . . ... . . . .. .... . government consultation may not be
rulemaking in which we think tribes will have an interest. appropriate or desired for all activities.
The purpose of coordination, among other things, is to: For example, if it is determined during
the coordination process that an action
¦ Assist OAR in assessing whether a particular or decision does not affect tribal
action or decision may affect tribal interests; concerns or interests, then
¦ Involve tribes early in the action and/or decision consultation is not 1 equii ed.
development process to ensure meaningful tribal
input; and
¦ Assist OAR in determining where consultation with elected or duly appointed tribal
leaders may be appropriate.
In contrast, consultations for OAR's efforts are designed to ensure meaningful and timely
meetings or discussions with elected or duly appointed tribal leaders (or their authorized
representatives) and the EPA decision-makers as they pertain to OAR actions. Consultation is an
opportunity for tribes to interact with the EPA, to discuss the potential effects of planned Agency
actions on tribal interests and make recommendations to the Agency. While consultation occurs
with tribal leaders (elected or duly appointed) or their authorized representatives, the EPA
routinely conducts a wide variety of coordination activities with tribes that include non-elected
leaders, environmental professionals, etc. Under the OAR Handbook for Interacting with Tribal
Governments, coordination should begin early in order for the EPA to discuss with tribes the
appropriate level of interaction in the action and/or decision development process. If the EPA
and the tribe proceed to consultation, this should take place prior to action proposal. After
proposal, the EPA may need to undertake subsequent rounds of consultation if there are
significant changes in the originally-proposed activity or as new issues arise.
In the OAR Handbook, we have adapted the coordination and consultation process as outlined in
the Agency's Policy to better reflect OAR's actions and/or decisions. The focus of OAR's efforts
for voluntary programs are on meaningful and timely communications with tribes (e.g., at the
TEP level) to increase their awareness and ensure we receive their input as appropriate.
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OAR Handbook for Interacting with Tribal Governments
COORDINATION
Starts early in the process
Tribal environmental
professionals or other
personnel
Gain perspective and input
into overall tribal interest
and technical information
Meetings
Conference calls
Newsletters
Website
Webinars
WHEN
WITH
WHOM
WHY
HOW
CONSULTATION27
Starts early and generally
before proposal
Tribal leaders or authorized
representatives
Following coordination and
information gathering, input
from the elected tribal
government may be needed
on issues that may affect
tribal interests
Initiate opportunity for
consultation via letters
(consultation may be held by
teleconference or face-to-
face meetings)
Figure 1: Coordination versus Consultation
F. WHAT DO OAR TRIBAL INTERACTIONS INCLUDE?
The OAR tribal interactions discussed in this document include all the steps you will need to
conduct successful coordination and/or consultation with tribes such as:
¦ How to identify effects your action and/or decision may have on tribes;
¦ How to communicate with and provide information to tribes;
¦ How to involve tribes in the action and/or decision development process; and
¦ How to effectively consult with tribes.
27 Each program office has the flexibility to determine the appropriate manner to consult, given the specifics and tribal preferences in each situation as
allowed by the EPA Policy on Consultation and Coordination with Indian Tribes dated May 4, 2011. http://www.epa.gov/tp/pdf/cons-and-coord-with-
indian-tribes-policv.pdf
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OAR Handbook for Interacting with Tribal Governments
Although the Agency's Policy serves as the overarching framework for consultation across the
EPA, it allows each program office the flexibility to determine the appropriate manner to consult
given the specifics and tribal preferences for each situation. Accordingly, the OAR Handbook
has tailored the four phases outlined in the Agency's Policy (Identification, Notification, Input,
and Follow-up) to better address OAR tribal interactions for coordination and consultation by
combining them into three phases as shown below.
1. Identification: OAR identifies activities that may be appropriate for coordination and/or
consultation. This phase should include a determination of the complexity of the activity,
its potential effects for tribes, and any time and/or resource constraints on coordination
and/or consultation activities.
2. Coordination: OAR notifies the tribes of activities that may be appropriate for
coordination and/or consultation and provides additional informational/educational
opportunities if requested. TEPs may provide input to OAR at this phase for the EPA to
consider.
3. Consultation: OAR initiates consultation or tribes officially request consultation and
provide input to the EPA on the consultation matter. This phase may include a range of
interactions including written and oral communications including exchanges of
information, phone calls, meetings, and other appropriate interactions as warranted. OAR
may need to undertake subsequent rounds of consultation if there are significant changes
in the originally-proposed activity or as new issues arise. As a final step, OAR follows up
with feedback to the tribe(s) involved in consultation(s) to explain how their input was
considered in the final action. Note: if consultation is not conducted, then the applicable
program office within OAR is not required to follow the procedures pertaining to
response letters as described in the Agency's Policy.
A flow chart outlining these OAR tribal coordination and consultation activities is shown in
Figure 2 below. A detailed discussion of the identification, coordination and consultation phases
is provided in Sections II - IV of this document.
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OAR Handbook for Interacting with Tribal Governments
determination;
¦OAR Effects on Tribes
Assessment Form
¦Action to OAR Triba I
Team and NTAA
Executive Steering
Committee
¦EPA's Action
Development Process
tnat may oe appropriate
for consultation)
¦Identify issues, interests
and effects
¦Involve tribes early
¦Involve regions
¦Develop tribal
coordination and
consultation strategy
¦Fact sheet
¦Notify TEPs
¦Hold informational calls,
meetings, webinars,
newsletters, websites,
listserv
it is
determined
that
consultation is
warranted,
then proceed
to the next
consultation matter)
IF not,
no further
action is
required
¦Tribal consultation
letters
¦Hold consultation
(in person meetings
or via teleconference
with tribal leaders or
their designees and
EPA senior decision-
maker)
EPA provides
feedback to the
tribe(s) on how
their feed back
was considered
in the final
action.)
If there are
EFFECTS
under Executive
Order 13175
Certification is
required
Prepare
certification letter
forOMB.
Document
for preamble.
Include in docket.
Follow-up
with response
letter to tribe(s).
For a regulatory action
If MOT a
regulatory
action
If there are NO
effects
Document
for preamble.
Include in docket.
I
Tribal Consultation
Tracking System (TCOTS)
Database*
If consultation is warranted,
then a consultation record
should be entered (early in
the process) into TCOTS. This
record will document all
coordination and
consultation activities
related to a specific action
and/or decision. This
information should be
entered by your program
office's Tribal Consultation
Advisor (TCA). Note: once
this information is posted by
AIEO, it is available for
viewing by the general
public.
*TCOTS is the EPA's centralized database for tracking the Agency's
consultations with federally recognized tribal governments.
Figure 2: OAR Tribal Consultation and Coordination Activities
28 Tribal Consultation Tracking System (TCOTS). https://tcots.epa.gov/apex'tcotspub/f?p=l 23:1:7299224447869:
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OAR Handbook for Imtfraftiiw with Tribal Crfly'TilllieiltS
6, WHAT ARE THE ROLES OF TBI OAR TUBAL AIR PROGRAM CONTACTS?
The OAR Tribal Program Manager is in the immediate office of the OAR Assistant
Administrator and is the primary liaison with the EPA American Indian Environmental Office
(AIEO) within the Office of International and Tribal Affairs (OITA). The OAR Tribal Program
Manager is the point of contact for each program office within OAR. Each program office - the
Office of Air Quality Planning and Standards (OAQPS), Office of Atmospheric Programs
(OAP), Office of Radiation and Indoor Air (ORIA), and Office of Transportation and Air Quality
(OTAQ) - has a Tribal Air Program Contact that is available to answer questions and provide
support for tribal coordination and consultation for program activities and rulemakings. All of
the contacts meet regularly as a team to address overarching questions, issues, and concerns.
Below is a brief description of the various program roles. (For a listing of the OAR Tribal Air
Program Contacts, see A-l in the Appendix.)
OAR Tribal Program Manager
The OAR Tribal Program Manager is the primary liaison between OAR and AIEO and works
directly with the EPA regions and tribal governments on coordinating tribal air quality issues.
This role coordinates tribal issues across OAR and deals with budgetary, national grants,
program questions, and other cross cutting issues.
OAR Tribal Team
The OAR Tribal Team includes representatives from each of the headquarters air offices and the
OAR Tribal Program Manager. The team coordinates with members of the National Tribal Air
Association's Executive Steering Committee for input on actions and/or decisions that may
affect tribal interests. This team meets regularly to discuss upcoming rulemakings and to help
OAR staff prioritize rules for tribal consultation. The team can also help staff identify activities
that may affect tribal interests, as well as opportunities for coordination on regulations and
voluntary/partnership programs. Talk with your OAR Tribal Air Program Contact for more
information. (For members of the OAR Tribal Air Team, see A-2 in the Appendix.)
OAQPS Tribal Program Contacts
The OAQPS primary contact for all tribal related issues is the Community and Tribal Programs
Group (CTPG) located in the Outreach and Information Division (ODD). CTPG serves as the
OAQPS Tribal Consultation Advisor (TCA) and is the primary liaison between OAR and
OAQPS for tribal activities. The TCA and the OAQPS Tribal Consultation Coordinator are
responsible for initiating and tracking OAQPS tribal coordination and consultation activities and
for providing assistance to the project lead in developing the consultation letter.
The CTPG also oversees the cross-divisional OAQPS tribal workgroup comprised of
representatives from each of the five OAQPS divisions: Air Quality Assessment Division
(AQAD), Air Quality Policy Division (AQPD), Health and Environmental Impacts Division
(HEID), Outreach and Information Division (OID), and Sector Policies and Programs Division
(SPPD). This workgroup meets on a monthly basis to review the OAQPS schedules for
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OAR Handbook for Interacting with Tribal Governments
upcoming activities and/or rulemakings. The OAQPS tribal workgroup also meets to discuss
issues and concerns related to implementing OAR's Handbook with respect to tribes across
OAQPS divisions. This workgroup can assist in helping to decide the most appropriate method
for involving tribes in OAQPS actions and/or decisions. (For OAOPS tribal program contacts,
see A-3 in the Appendix.)
OAP Tribal Program Contact
The OAP Tribal Program Contact serves as the primary liaison between OAP and the rest of
OAR and the regions regarding tribal issues. The OAP Tribal Program Contact manages the
OAP tribal team which consists of representatives from each of the four OAP divisions: the
Clean Air Markets Division (CAMD), the Climate Change Division (CCD), the Climate
Protection Partnership Division (CPPD), and the Stratospheric Protection Division (SPD). This
team meets monthly to discuss tribal projects, consultation and outreach efforts for both
regulations and voluntary/partnership programs, and tribal issues related to OAP activities. The
team also works to increase awareness of tribal issues across the office and to identify new
opportunities for OAP to support and interact with tribes. (For OAP tribal program contacts, see
A-4 in the Appendix.)
ORIA Tribal Program Contact
The ORIA Senior Tribal Advisor is the primary contact for all tribal indoor air and radiation
issues and leads the ORIA tribal team, which includes representation from ORIA divisions,
Tribal Air Monitoring Support (TAMS) Center, and regional indoor air and radiation
representatives. The ORIA tribal team serves as a means for coordinating and communicating
ORIA related activities and information of interest to tribes. (For ORIA tribal program contacts,
see AS in the Appendix.)
OTAQ Tribal Program Contact
OTAQ's Tribal Advisor is the primary contact for all tribal matters associated with mobile
source issues and leads the OTAQ's tribal outreach efforts, which currently include the Diesel
Emissions Reduction Act (DERA) National Funding Assistance Program's Tribal
Competition. In addition to supporting OTAQ's communication with the tribes, the OTAQ
Tribal Advisor coordinates and communicates OTAQ related activities and information of
interest to tribes. (For OTAO tribal program contact, see A-2 in the Appendix.)
II. IDENTIFICATION
A. INTRODUCTION
The identification phase is designed to help assess whether an Agency action and/or decision
may affect tribal interests. This phase should include a determination of the complexity of the
activity, its potential effects on tribes, and time and/or resource constraints relevant to
consultation and coordination activities. In this Handbook, we will use the key term effects that
reflects the principles expressed in the 1984 EPA Policy for the Administration of Environmental
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OAR Handbook for Interacting with Tribal Governments
Programs on Indian Reservations (1984 Indian Policy) for interacting with tribes. The 1984
Indian Policy remains the cornerstone for the EPA's Indian program and "assure[s] that tribal
concerns and interests are considered whenever the EPA's actions and/or decisions may affect
tribes (1984 Policy, p.3, principle no.5). (For a definition of effects, see IV. Consultation.)
If a determination is made that an action and/or decision may have tribal effects, then
consultation may be required and additional steps must be followed as directed in the Agency's
Policy (see Section IV. Consultation). Actions and/or decisions that potentially require
consultation may be those that:
¦ Impose substantial direct compliance costs on Indian tribal governments;
¦ Affects the relationship between the federal government and Indian tribes; or
¦ Affects the distribution of power and responsibilities between the federal government and
Indian tribes.
Furthermore, consultation may be required if an action or decision has effects on tribal natural
resources; tribal culture on the reservations; trust lands or other lands; and treaty rights
applicable to lands outside reservation boundaries. It is important to recognize that tribes have
many interests including human health, ecological, cultural, economic, and/or social impacts.
Coordination with tribes should be considered for all actions and/or decisions to help identify if
tribal interests are affected. For example, if an action or decision regulating a facility on a tribal
reservation, which is not owned by the tribe, but which contributes to the revenues of the tribe
and employs tribal members, consultation is recommended since there is a potential for an
indirect effect on the tribe's revenues and general economy including employment.
B. HOW TO DETERMINE IF AN ACTION AND/OR DECISION MAY AFFECT TRIBAL
INTERESTS
Assessment
The OAR assessment of potential effects on tribes is a process that helps to determine whether an
OAR rule, action and/or decision, or voluntary/partnership program could potentially affect tribal
interests (see Figure 3 below). To initiate the assessment process, the project lead may use the
OAR Effects on Tribes Assessment Form ("Assessment
Form") or equivalent documentation for ascertaining whether
the activity may have an effect on a tribe(s) or tribal interests.
(For a copy of this form, see A-8 in the Appendix.)
In conducting the assessment process, some of the questions
will be answerable without significant data research or
development. Other considerations will require analysis of
EPA data to determine whether there is a potential to affect
tribal interests. Based on your review of these considerations,
if the answer is YES to any of the questions in Figure 3, then
your action and/or decision may affect tribes. Government-to-
government consultation with the potentially affected tribal
Updated 1.24.18 20
Staff should document all
assessments, coordination,
and other interactions with
tribes throughout the tribal
interactions process. Some of
this documentation (i.e., a
summary of coordination and
consultation events) may be
submitted to the Office of
Management and Budget
(OMB) as part of the
rulemaking process.
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OAR Handbook for Interacting with Tribal Governments
officials may be warranted along with coordination and a Tribal Coordination and
Consultation Strategy ("Strategy") should be developed (see pg. 23). Even if the answer is
clearly NO to all of the questions, some form of coordination may be recommended, based on
other Agency policies such as the EPA's 1984 Indian Policy. It is recommended that the OAR
Tribal Team review the completed Assessment Form or equivalent documentation in order to
evaluate the analysis and to determine whether tribes or tribal interests may be affected. This
team is available as a resource to OAR staff to help prioritize Agency actions and/or decisions
for tribal consultation and can help staff identify potential effects on tribal interests. (Contact
your Tribal Program Air Contact if assistance is needed.)
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OAR Handbook for Interacting with Tribal Governments
If at least
one answer
is
YES
To assess whether an action and/or decision may affect tribal interests,
please address the following questions:
¦ Does this action establish new federal standards or significant policy or
guidance?
¦ Is the planned activity designed with intent to include activities in
Indian countiy?
¦ Does this action and/or decision negatively affect tribal interests - or is
it close enough to potentially affect - Indian country, Alaska Native
Villages and/or Alaska Native corporations?
¦ Have any of the tribes (either nationally or through the regions] shown
interest in and/or concerns with this rule or voluntary program
development or change?
Specific to regulatory actions:
• Does the action impose a significant economic cost upon Indian tribes?
• Does the action affect tribal interests (human health, ecological, cultural,
economic, and/or social impacts]?
• Will this action affect tribal treaty resources?
o Will it affect trust lands that may be outside a reservation
boundaiy?
o Are there localized effects on resources that may be outside a
reservation boundaiy - but for which a tribe (or tribes] has treaty
rights - such as the ability to take water, hunt, fish, or gather a
resource from a certain area?
• Will this action/or decision affect the relationship (or the distribution of
power] between the federal government and Indian tribes?
o Example: Will the action affect the status of tribes as a co-
regulator or the tribe's right to self-governance?
o Are there any special legal considerations such as jurisdiction in
Indian country?
• Will this action affect how tribes develop or implement a program?
• Will this action affect Alaska Native Villages and/or Alaska Native
corporations?
If all
answers
are
NO
Consultation with the
potentially affected tribal
officials may be warranted
along with coordination.
Consultation
may not
Be called for;
However, coordination is
recommended
A Tribal Coordination and Consultation
Strategy should be developed, as applicable
to the assessment results. Consult your tribal
program contact for assistance.
Figure 3: OAR Assessment of Potential Effects on Tribes
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OAR Handbook for Interacting with Tribal Governments
Tribal Coordination and Consultation Strategy ("Strategy")
After completing the OAR Effects on Tribes Assessment Form, the project lead should develop
a Tribal Coordination and Consultation Strategy ("Strategy") to provide a framework for the
coordination and consultation process, the scope of which should be applicable to the assessment
results. Sections III and IV discuss the general
recommendations and steps for conducting effective
coordination and consultation and should be considered in
the development and implementation of the Strategy. This
Strategy will also help in documenting the process,
particularly if the action is determined to have substantial
direct effects on tribal interests and will need to be certified
as having met all of the Executive Order 13175
requirements later in the process. The OAR Tribal Air
Program Contact can provide assistance with the process.
(For examples of Strategies for both regulations and
voluntary partnership programs, see A-9 and A-10 in the
Appendix.)
The OAR Tribal Team is also available to assist you with
the development of your Strategy. Your OAR Tribal Air
Program Contact should reach out to the OAR Tribal Team
during the appropriate phase of your activity as outlined in
Section III. Coordination. (For a listing of OAR Tribal Air
Program Contacts and for members of the OAR Tribal
Team, see A-1 and A-2, respectively, in the Appendix.)
Tribes may request
consultation (and/or
coordination) on actions that
we may think will not a ffect
tribal interests. According to
the EPA Policy on Consultation
and Coordination with Indian
Tribes dated May 4, 2011,
"Tribal officials may request
consultation in addition to
EPA's ability to determine
what requires consultation.
The EPA attempts to honor the
tribal government's request
with consideration of the
nature of the activity, past
consultation efforts, available
resources, timing
considerations, and all other
relevant factors."
C. FOLLOWING THE AGENCY'S ACTION DEVELOPMENT PROCESS FOR
RULEMAKINGS
Regulatory actions are tiered as soon as a program office knows that it may need to develop
some type of action on an issue, or as early in the process as possible. For those rules that have
been designated as either Tier 1 or Tier 2 under the Agency's Action Development Process
(ADP), there is a flow diagram to assist you through the process (see A-7 in the Appendix)29 The
chart depicts the Agency's official action development process; however, we have added boxes,
designated in red, to show when tribal considerations should be incorporated into the Agency's
official process. This diagram is not intended to amend or alter the Agency's official ADP, but
rather to provide additional information to assist in the consideration of effects on, and
coordination with, tribes in the context of relevant OAR actions.
29 Additional information on Tier 1: "Administrator's Priority Actions," Tier 2: "Cross-Media and/or Actions with Significant Issues," and Tier 3:
"Lead Office Delegation" can be found at: http://intranet.epa.gov/actiondp/
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OAR Handbook for Interacting with Tribal Governments
III. COORDINATION
A. WHAT IS COORDINATION?
Coordination is an opportunity for the EPA to notify and begin interactions with tribes about
activities that may be appropriate for consultation. Coordination should begin early in the
process to allow for meaningful input by the tribe(s) on actions and/or decisions that may have
effects on tribe(s) or tribal interests. Moreover, early coordination provides tribal staff the
opportunity to assess the need for consultation with the EPA. The EPA staff should begin the
coordination process for:
¦ Rulemakings — between Preliminary Analytic Blueprint and Early Guidance for ADP
Tier 1 or 2 actions, and as the workgroup prepares its outreach and stakeholder
involvement plans (prior to management guidance for Tier 3 rules).
¦ New or updated voluntary/partnership programs-during the development phase.
¦ Existing voluntary/partnership programs-at any time to help initiate or refine tribal
outreach.
Coordination activities can be tailored to the specific
needs of the action and/or decision, ranging from
notification to the tribes via a listserv or electronic
mailing, to establishing a formal work group, to
participating on conference calls with tribal
organizations (i.e., National Tribal Air Association).
(The tribal contact within your program office can help
you design the appropriate scope of interaction.)
B. GENERAL RECOMMENDATIONS FOR COORDINATION
¦ Identify Issues, Interests and Effects
— What are the issues?
— What are the critical time lines and events?
— Who is involved?
— Who has an interest?
— Who is potentially affected?
— What are the potential effects?
— Where are the effects occurring?
Coordination should be considered for
all actions, regardless of whether the
actions have been determined to have
effects on tribal interests and
independent of the determination that
consultation is warranted.
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OAR Handbook for Interacting with Tribal Governments
¦ Involve Tribes Early in the Coordination Process
— The earlier the better, preferably prior to proposal.
-~ Work with your tribal program contact to carefully set up work groups to ensure needed
expertise.
-~ Coordination schedules should reflect critical and appropriate points for interaction.
-~ Allow for a full range of opinions and interactions.
¦ Plan Strategies and Mechanisms
-> Consider strategies about appropriate audience, method of communication, and content.
¦ Involve the EPA Regional Offices
-> Regional tribal and program offices should be actively involved in identifying and
working with tribal officials and personnel from their regions. One way to raise issues
quickly is to work with the sub-lead region for tribal air issues and schedule time on
one of the monthly Tribal Air Coordinator (TAC) calls. {Work with your OAR Tribal
Air Program Contact to coordinate.)
¦ Involve other Federal Agencies
-~ Where national rulemakings or voluntary programs involve other federal agencies,
OAR will strive to work collaboratively across agencies on coordination and
consultation activities. (Work with your OAR Tribal Air Program Contact to determine
where this may be appropriate.)
¦ Document the Entire Coordination Process
-~ Assessments.
-~ Participation on tribal calls or meetings.
-> Interactions with tribes.
-~ Coordination efforts.
-> Written communications to and from tribes.
-> Follow-up.
30 Meetings with outside organizations may be subjected to the Federal Advisory Committee Act (FACA) https://www.epa.gov/laws-
regulations/summarv-federal-advisorv-committee-act. Consult with your Office of General Counsel (OGC) to determine whether FACA apples to your
meeting.
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OAR Handbook for Interacting with Tribal Governments
C. PROCESS FOR CONDUCTING EFFECTIVE COORDINATION
1 Write a fact sheet for tribes in plain English
(For examples, see A-ll in the Appendix.)
a. Describe the action and/or decision being
considered (i.e., policy, guidance,
rulemaking, partnership, or voluntary
program).
Describe how the action and/or decision
may involve or affect tribes.
Include the project lead's contact
information.
b.
c.
Identify which tribes may be affected
a. Initiate discussions with the tribal program
contact; they can help work with the
NTAA Executive Steering Committee and
appropriate EPA regional office TACs.
Work with the OAR Tribal Air Program
Contact to provide an overview of the
activity on the next NTAA call.
Work through the OAR Tribal Air Program
Contact to set up follow-up informational
meetings or discussions with interested
tribal environmental staff.
Work with the OAR Tribal Air Program
Contact to identify the type of tribal
government and appropriate tribal
contacts.31
Initiate discussions with the OAR Tribal
Air Program Contact to identify special
tribal considerations and protocols (e.g.,
subsistence seasons) for those tribes.
(For a listing of tribal program contacts,
see A-l through AS in the Appendix.)
b.
c.
d.
e.
Actions may have obvious or not so
obvious effects on tribes. For
example:
> Mercury and Air Toxics
Standards (MATS) Rule
* Compliance costs may impact
costs of water delivery for
some tribes.
* May impact tribal revenues
from coal mining operations.
* Mercury deposition from
coal-fired EGUs may have
environmental, health and
economic impacts (i.e.,
elevated mercury levels in
subsistence fish).
> Tribal Minor New Source Review
(NSR) Rule
* May level economic playing
field, by filling regulatory
gaps.
* May protect tribal
sovereignty from state
incursion by clarifying
jurisdiction in air permitting.
* May provide equal
opportunity for economic
development and controlled
growth for new sources in
Indian country.
¦ Notify tribal environmental professionals
a. Work with the OAR Tribal Air Program Contact, Tribal Air Coordinators (TACs),
and NTAA to identify where tribe(s) is/are located to develop a coordination/
communication strategy.
b. Notify all affected tribal governments at an early stage by disseminating information
to tribal officials and TEPs on action and/or decision development. In addition to
sending out the fact sheet described above, a message can also be sent out on the
Tribal Air Listserv or Tribal Air Website with the EPA project lead's contact
information; participate in the NTAA/EPA monthly calls; work with the EPA
regional office tribal air contacts (TACs and other regional staff); and send
31 Some tribes operate under long standing traditional systems; others operate much like the federal and state systems. Some are made up of elected
officials; others are made up of leaders chosen by a clan group or other traditional group of people in the community.
Updated 1.24.18 ' ' 26
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OAR Handbook for Interacting with Tribal Governments
information to the National and Regional Tribal Operations Committee (NTOC and
RTOC) contacts. There may be other important tribal organizations that can help in
getting the word out to the tribes depending on the issue. For example, the Consortia
of Energy Tribes (CERT) would be important to include on oil and gas development
issues. (For a listing of relevant tribal and EPA organizations, see A-18 in the
Appendix.)
¦ Potential activities for conducting coordination
a. Distribution of fact sheet and other written information on proposed action(s) to tribal
community.
b. Participation on tribal community organization calls (i.e., NTAA, RTOC, etc.).
c. Webinars.
d. Technical meetings.
e. Informational calls.
f. EPA Tribal Air Newsletter.
g. EPA Tribal Air Website (http://www.epa.gov/air/tribal).
h. EPA Tribal Air Listservs.
IV. CONSULTATION
The EPA ensures the close involvement of tribal governments and gives special consideration to
their interests whenever the EPA's actions and/or decisions may affect tribes or tribal interests.
Consultation is a deliberative process that endeavors to achieve
effective collaboration and knowledgeable decision-making.
Consultation does not begin or end with the EPA simply
providing information to tribes, but is built upon a government-
to-government exchange of information and ideas. For OAR's
purpose, consultation is meaningful communication that may
involve meetings or discussions with elected or duly appointed
tribal leaders or their authorized representatives to interact with
EPA decision-makers about a potential action and/or decision,
potential effects on tribes, and options to take such effects into
account. Consultation should occur early enough to allow tribes
the opportunity to provide meaningful input that can be
considered prior to EPA decision-making.
D. WHEN IS CONSULTATION REQUIRED?
Consultation is required for any policy, guidance, rule or
other action and/or decision that is:
1) Targeted directly toward tribes;
2) Has effects on tribes or Indian country; or
3) Has broad tribal interests.
Interactions between the
EPA decision-makers and
tribal leaders may be a
lengthy process.
For example, tribal
environmental professionals
(TEPs) may need time to
review and bring issues
before their tribal leadership
and there may be delays due
to potential staffing
constraints, and resources or
cultural considerations.
It is important when
scheduling activities (i.e.,
conference calls, webinars,
informational meetings, etc.)
to provide tribes ample lead
time for their "internal"
communication/notification
process.
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OAR Handbook for Interacting with Tribal Governments
Remember that consultation is with an elected tribal official or their designee and a senior
agency decision-maker (division director or higher ranking manager). The EPA's actions and/or
decisions affect tribal interests when they meet, at least, one of the following criteria:
1) They impose substantial direct effects on one or more Indian tribes;
2) Affect the relationship between the federal government and Indian tribes; and
3) Affect the distribution of power and responsibilities between the federal government
and Indian tribes.
Additionally, the EPA's actions and/or decisions may have an effect on tribal natural resources,
including the culture on the reservations, on trust lands or other lands and effects on treaty rights
applicable to lands outside reservation boundaries.
Consideration of Tribal Treaty Rights
The EPA considers all relevant information obtained through tribal consultations to help ensure
that the Agency's actions do not conflict with treaty rights, and to help ensure that EPA is fully
informed when it has discretion to do so. TheEPA Guidance on Tribal Treaty Rights outlines
steps for EPA tribal consultations in situations where tribal treaty rights or treaty-protected
resources may be affected by a proposed EPA action. The Guidance specifically provides
assistance on EPA activities that are focused on a particular geographic location. EPA actions
that are national in scope and not targeted to a specific geographical area are outside the scope of
this Guidance - for example, the development of National Ambient Air Quality Standards
(NAAQS) under the Clean Air Act. During tribal consultations, the EPA should ask the
following three questions:
1) Do treaties exist within a specific geographic area?
This question helps to determine when a treaty and its related resources exist within the
specific geographic area of the proposed action. Why is this
question important? Because tribes may possess treaty rights
both inside and outside the boundaries of reservations. In some
cases, EPA may be aware of existing treaty rights in a specific
location, but in other cases, EPA may not be aware of the full
effects of the treaty rights or may find it difficult to determine
when a specific geographic area has an associated treaty right.
For example:
> Some tribes in the Great Lakes area retain hunting,
fishing, and gathering rights both in areas within and
areas outside their reservations boundaries.
> There are tribes in the Pacific Northwest that retain the
right to fish in their "usual and accustomed" fishing
grounds and stations both within and outside their
reservation boundaries, and retained the right to hunt and gather throughout their
traditional territories.32
A treaty may
reserve or protect
the right to hunt,
fish, or gather a
particular animal or
plant in a specific
area. Tribes may
possess treaty
rights both inside
and outside the
boundaries of their
reservations
(known as ceded
32 Traditional territory is the geographic area occupied by a tribe's ancestors for community, social, economic, and spiritual purposes.
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OAR Handbook for Interacting with Tribal Governments
2) What treaty rights exist in, or what treaty-protected resources rely upon, the
specific geographic area?
This question helps to understand the type of treaty rights that a tribe may retain. For
example:
> A treaty may reserve or protect the right to "hunt," "fish," or "gather" a particular
animal or plant in specific areas.
> A treaty may also contain necessarily implied rights; such as an explicit treaty
right to fish in a specific area that may include an implied right to sufficient water
quantity or water quality to ensure that fishing is possible. Also, an explicit treaty
right to hunt, fish, or gather may include an implied right to a certain level of
environmental quality to maintain the activity or a guarantee of access to the
activity site.
3) How are treaty rights potentially affected by the proposed action?
This question helps to understand how a treaty right may be affected by the proposed
action. During the outreach and consultation process, the EPA should explain the
proposed action, provide any appropriate technical information that is available and
solicit input from the tribes on any resource-based treaty rights that may be affected.
For EPA actions that may affect treaty rights, the next steps typically involve legal and policy
analyses to determine how to protect the treaty rights. It is expected that the EPA lead office that
engaged in consultation with the tribe will coordinate with the Office of General Counsel (OGC)
and the Office of International and Tribal Affairs (OITA) to conduct these analyses and hold
additional consultations as warranted with tribal officials that are identified by the tribe. Because
treaty rights can be complex, collaboration between EPA program and legal staff before and
during consultation is important to ensure understanding of the tribe's treaty rights and the
effects a proposed EPA action may have on those rights — violating treaty rights may expose the
United States to lawsuits by tribes. (Contact your OAR Tribal Air Program Contact for
assistance.)
Consultation on voluntary/partnership programs may be necessary if there are potential
effects on tribes. For additional guidance on these programs, you should consult with your OAR
Tribal Air Program Contact.
Lastly, it is important to reiterate that tribes have many interests including human health,
ecological, cultural, economic, and/or social impacts when considering whether an EPA action
and/or decision may affect tribal interests.
i, STEPS TO EFFECTIVE CONSULTATION
As discussed earlier, coordination involves working with TEPs to assess whether consultation
will be useful in advance of any action and/or decision for which OAR thinks tribes may have an
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interest. If the results of OAR's assessment of effects on tribes, and/or interactions with TEPs
during coordination, determine that the action and/or decision may affect tribes or tribal interests,
the OAR program office should initiate consultation.33 Consultation also may be initiated upon
the request of one or more tribes.
Consultation is initiated by sending a letter from an EPA decision-maker (division level or higher
ranking manager) to tribal leaders of potentially affected federally recognized tribes, providing
an overview of the action and/or decision, and offering an opportunity for consultation on a
specific rule. action and/or decision.
During the consultation meeting, it is important to document all information which may include:
¦ A list of the participating tribe(s) and elected tribal leader(s) or their authorized
representative,
¦ Underlying agency action which is
the subject of the consultation, and
¦ The views and concerns expressed
by the tribe(s).
Documenting meeting notes ensures that
participants can later review and correct
any inaccuracies, and also provides the
Agency with a solid consultation record.
In addition, this documentation will
assist the project lead with the discussion
section of their rule preamble or
document in the background/summary:
the coordination and consultation activities, tribal concerns, and how these concerns were
addressed.
After finalizing the action and/or decision and if consultation was conducted, the project lead
should develop a response letter to the tribal leadership involved. The EPA response letter should
explain how the tribe(s) input was considered in the final action and how their comments and/or
concerns were addressed. (For an example of a response letter, see A-16 in the Appendix.)
The Steps to Consultation
1. Plan and document consultation activities:
a. Document all consultation activities (i.e., conference calls, on-site meetings, written
communications to and from tribes, and any other pertinent information).
It is important to promote a 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, and locations of cultural
resources. There may also be sensitivity regarding
tribal relationships with surrounding states and
jurisdictional issues. Under federal law, information
exchanged between EPA and tribes ordinarily will not
be privileged or otherwise protected from disclosure
under the Freedom of Information Act.
33 If the OAR Assistant Administrator (AA) has worked with the TCA to determine whether or not tribal interests may be affected, then the decision as
to whether or not to consult rests with the AA.
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2. Determine if the action and/or decision may affect tribes:
a. Under the Agency's Policy, actions and/or decisions may have effects on: tribal
natural resources, culture on the reservations, trust lands or other lands, and treaty
rights applicable to lands outside reservation boundaries. It is important to recognize
that tribes have many interests including human health, ecological, cultural,
economic, and/or social impacts.
b. Executive Order 13175 is triggered and certification is required when an action and/or
decision has implications that: "impose substantial direct effects on one or more
Indian tribes, or affects the relationship between the federal government and Indian
tribes, or affects the distribution of power and responsibilities between the federal
government and Indian tribes."34 (For additional information, see Consultation:
IK C.J
c. OAR Program and EPA regional offices should work together in the development of
consultation strategies in situations where consultations on national activities are
carried out or executed by the regions.35 (See your OAR Tribal Air Program Contact
for assistance.)
d. When OAR national rulemakings involve other federal agencies, OAR strives to carry
out its consultation activities jointly with those agencies, where appropriate. (See your
OAR Tribal Air Program Contact for assistance.)
3. Initiate consultation:
a. If it is determined that the action and/or decision may affect tribes or tribal interests,
then the project lead should take the following actions to initiate consultation.
1) Prepare consultation letters addressed to tribal leadership of the potentially
affected federally recognized tribes
with the opportunity for consultation.
The letter should include an overview
of the specific rule, action and/or
decision, and the date by which tribes
may notify the EPA of their
consultation request. (For examples,
see A-12 in the Appendix.)
The tribal response date should be at a
minimum of 4 weeks from the date of the
signed "invitation to consult" letter. This
provides tribal leadership with the time
to review and decide their
action/response on a particular issue.
34 "Policies that have tribal implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that
have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal Government and Indian tribes, https://www.epa.gov/laws-regulations/summarv-
executive-order-13175-consultation-and-coordination-indian-tribal
35 Generally, when an action originates in a region, the region will be responsible for leading and executing all aspects of consultation. In some
circumstances, program offices and regions may want to co-lead a consultation effort, or by mutual agreement they may determine that it is more
effective for the program office to lead a consultation effort even though the action originates in a region.
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OAR Handbook for Interacting with Tribal Governments
b. Once the project lead has drafted
"draft" letter should be
submitted to the applicable
OAR program office tribal
contact for review. After
internal review, the OAR
program office tribal contact
will return the draft letter to the
project lead with comments and
recommendations. The "final"
letter should be signed by an
EPA official (division director
level or higher ranking
manager).
the consultation letter, an electronic copy of the
An Example of the OAQPS Process for
Initiating Consultation Letters
1. The project lead should submit the "final" letter, in
electronic format, to the OAQPS Tribal
Consultation Coordinator for handling. (For
contact information, seeA-3 in the Appendix.)
a) Prepare the letter in a "Word" document to
ensure mail merge functionality. The letter
should not be submitted on letterhead or in a
PDF file.
b) Send a scanned copy (PDF file) of the EPA
official's signature (division director or
higher ranking manager) for electronic
insertion into the letter; otherwise each
letter (567*) will need to be manually signed.
c) The OAQPS Tribal Consultation Coordinator
will return "hard copy" letters or a "print-
ready" file to the "originating" office for final
printing and/or mail out.
d) The OAQPS Tribal Consultation Coordinator
will also send a courtesy copy (via email) to
the TEPs.
c. Send official "offer for
consultation" to tribes. For all
OAR program offices, the
OAQPS Tribal Consultation
Coordinator is available (if
needed) to assist with the setup
of mail merge files for
consultation letters. (For contact information, see A-3 in the Appendix.)
4. Conduct informational meetings with the TEPs:
a. After the consultation letter has been sent and before the tribal response date provided
in the consultation letter, the project lead, with assistance from their OAR Tribal Air
Program Contact, will continue with the information sharing process by coordinating
one or more informational meetings with tribal leaders and/or their environmental
staff.
1) Please note -it is important to recognize that many tribal environmental
professionals (TEPs) are precluded from participating in any meeting termed
consultation which does not include their tribal leadership.
2) The purpose of these informational meetings is to provide a general overview
of the proposed action and/or decision so that the TEPs may assist their tribal
leadership in determining whether to participate in consultation.
b. At least one week prior to the scheduled informational meeting, the project lead
should provide their OAR Tribal Air Program Contact with a copy of the PowerPoint
presentation on the proposed action and/or decision.
1) The OAR Tribal Air Program Contact will review this presentation and provide
comments as necessary. Either the project lead or their tribal program contact
will distribute the final presentation to the participating tribes, at a minimum
of two days. prior to the scheduled meeting.
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c. Document all meetings and note who attended, what topics were discussed, and any
other relevant information, and include all written materials and presentations.
5. Conduct consultation with tribal leadership or their designee:
a. If a tribe expresses interest in consultation, then the project lead and their OAR Tribal
Air Program Contact should coordinate consultation meetings with tribal and EPA
leadership. These meetings might be held either by teleconference or in person. The
meeting might be with an individual tribe or a joint meeting of several tribes, if they
agree.
b. The meeting should be attended by a senior agency official (generally the division
director or higher ranking manager).
c. When OAR national rulemakings involve other federal agencies, OAR strives to carry
out its consultation activities jointly with those agencies, where appropriate. (See your
OAR Tribal Air Program Contact for assistance.)
d. OAR program and EPA regional offices should actively work together in the
development of consultation strategies in situations where consultations on national
activities are carried out or executed by the regions. (See your OAR Tribal Air
TCOTS is the EPA's centralized database for
tracking consultations with federally recognized
tribal governments.
1. The data collected are used to support
internal and external reporting, and to disseminate
specific information pulled from the system for external
public viewing via the EPA's Tribal Portal.
2. The tribal community is able to view notifications of
upcoming rulemakings or actions and/or decisions
requiring tribal consultation and any supporting
documentation that may be available (i.e., consultation
letters, presentations, webinars, etc.).
6. Complete additional documentation if the rule is covered by the Executive Order
13175:36
a. Write a summary of all tribal coordination efforts, including who attended, topics of
discussion, any other pertinent information, and submit this to the rule docket.
Program Contact for assistance.)
e. When consultation is scheduled,
the project lead should provide
appropriate information to their
OAR Tribal Air Program Contact
and Tribal Consultation Advisor
(TCA) for submission into the
Tribal Consultation Tracking
System (TCOTS). (For a listing
of OAR TCAs, see A-6 in the
Appendix.)
f. Document all meetings and note
who attended, and what topics
were discussed and any other
relevant information.
30 Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal Governments - "Policies that have
tribal implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that
have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal Government and Indian tribes, http://www.epa. gov/tp/pdf/eo-
13175.pdf.
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b. Write a tribal impact summary statement which includes information and comments
submitted by the tribes, and
c. Draft a certification request memorandum from the OAR Assistant Administrator to
the OITA Assistant Administrator. (See Section IV. Consultation, for instructions on
developing this memorandum and on the timing and submittal process.)
1) After receipt, review and approval, OITA will send a memo back to OAR
indicating that all consultation requirements have been met.
2) Submit the OITA certification memo with the tribal impact summary statement
to the Office of Management and Budget (OMB) with the rule package.
7. Complete other documentation requirements, as needed:
a. Briefly discuss in the relevant section of the rule preamble or document in
background/summary: the coordination and consultation activities, tribal concerns,
and how these concerns were addressed.
b. Ensure that all information is submitted to the docket for proper recordkeeping.
8. Follow-up with the tribe(s):
a. After finalizing the rule and if consultation was conducted, the project lead should
develop a response letter to the tribal leadership involved.
1) The EPA response letter should explain how the tribe(s) input was considered
in the final action and how each of their comments and/or concerns was
addressed. (For an example letter, see A-16 in the Appendix.)
2) The letter should be signed by the highest level EPA official involved and sent
to the most senior tribal official involved in the consultation.
Note: If consultation is not conducted, the OAR program office is not required to follow
the procedures pertaining to response letters as described in the Agency's Policy.
F. EXECUTIVE ORDER 13175 CERTIFICATION (IF APPLICABLE)
If an action and/or decision is determined to have substantial direct effects on one or more
Indian tribes as defined under Executive Order 1317537 then, the Executive Order directs the
Agency "to include a certification... that the requirements of this order have been met in a
meaningful and timely manner " when "transmitting any draft final regulation that has tribal
implication to OMB... "
37 Under Executive Order 13175, "Policies that have tribal implications" refers to regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution ofpower and responsibilities between the Federal Government and Indian tribes. "
https://www.gpo.gov/fdsYs/pkg/FR-2000-ll-09/pdf/00-290Q3.pdf.
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OAR Handbook for Interacting with Tribal Governments
If certification is required, OAR submits a memorandum to the Office of International and Tribal
Affairs (OITA) requesting concurrence on consultation activities (for an example, see A-13 in the
Appendix). This memorandum should be submitted to the OITA at least 10 days prior to the
action being sent to OMB. In return, the OITA will provide a certification memorandum stating
that the action complies with the Executive Order requirements (for an example, see A-14 in the
Appendix). This certification memorandum from OITA should be submitted to OMB with the
final action.
Preparing a Certification Request Memorandum to OITA
The project lead should coordinate with their OAR Tribal Air Program Contact regarding the
drafting of the certification request memorandum. The certification request is from the Assistant
Administrator of the Office of Air and Radiation (OAR) to the Assistant Administrator of the
Office of International and Tribal Affairs (OITA). The certification request memorandum should
contain, at a minimum, the following:
1) A description of the extent of the coordination and consultation activities;
2) A summary of tribal officials' concerns;
3) The EPA's position regarding the action;
4) A statement of the extent to which the tribal official's concerns have been met; and
5) Any supplemental materials to assist OITA in certifying to OMB.
To simplify the process, it is suggested that the language from the rule preamble be used to
describe the coordination and consultation activities. To assist in developing this certification
request memorandum, as well as the language to be used in the preamble, examples from actual
projects have been included in the Appendix (see A-15).
V. REPORTING REQUIREMENTS
Each OAR program office must develop a semi-annual agenda and submit the agenda or an update
to AIEO (through TCOTs) by October 1st and April 1st of each year. The semi-annual agenda
consists of a list of pre-identified activities that each program office plans to consult upon within a
specified six-month period. Program offices are also responsible for submitting brief summaries of
completed consultations to AIEO no later than June 1st of each year. It is recommended that the
summaries be completed as soon as practicable once consultation is complete. This information is
compiled and submitted to the OAR Program Manager, through TCOTS, by the Tribal Consultation
Advisor (TCA) within your program office. (See Appendix A-6, for OAR Tribal Consultation
Advisors.)
Executive Order 13175 directs federal agencies to submit to OMB annually, certification from the
official designated to ensure compliance with this order, that all relevant requirements of the
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OAR Handbook for Interacting with Tribal Governments
Executive Order have been met.38 As such, using the information provided in TCOTs, the Agency's
Designated Consultation Official (AA in OITA) will submit the Agency's annual consultation
progress report to OMB by August 1st of each year as required by a Presidential Memorandum dated
November 5, 2009.39
VI. CONCLUSION
The Office of Air and Radiation takes very seriously its responsibility to strengthen the government-
to-government dialogue with tribes regarding proposed actions and/or decisions in a manner
intended to secure meaningful and timely tribal input. To that end, OAR will continue to actively
solicit feedback from tribes on the effectiveness of our coordination/outreach and consultation
activities, both directly from tribes during coordination activities, government-to-government
consultations and through our tribal partnership groups.
OAR will periodically update the OAR Handbook on Interacting with Tribal Governments when
new information is obtained or when EPA regulations, directives, policies, and guidance pertaining
to tribal consultation change.
38 Executive Order 13175. https://www.gpo.gov/fdsvs/pkg/FR-2000-11 -09/pdf/00-29003.pdf
39 Presidential Memorandum dated November 5, 2009. https://www.gpo.gOv/fdsvs/pkg/IX:PD-200900887/pdf/IX:PD-200900887.pdf
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OAR Handbook for Interacting with Tribal Governments
VII. APPENDIX
1. OAR Tribal Air Program Contacts
2. OAR Tribal Team
3. OAQPS Tribal Program Contacts
4. OAP Tribal Program Contacts
5. ORIA Tribal Program Contacts
6. OAR Tribal Consultation Advisors
7. Incorporating Tribal Considerations into Tier 1 and 2 Actions under the ADP
8. OAR Effects on Tribes Assessment Form
9. Tribal Coordination and Consultation Strategy- Rulemakings
10. Tribal Coordination and Consultation Strategy - Voluntary Programs
11. Fact Sheets for Tribes (Examples)
12. Tribal Consultation Letter (Examples)
13. Certification Memo from OAR to OITA (Example)
14. Memo Certifying Consultation from OITA to OAR (Example)
15. Rulemaking Preamble Language (Examples)
16. EPA Response Letter to Tribes (Example)
17. Key Terms and Concepts
18. Relevant Tribal and EPA Organizations
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A-l. OAR TRIBAL AIR PROGRAM CONTACTS
Office of Air and
Radiation (OAR)
Pat Childers
202-564-1082
childers.pat@epa.gov
Office of Air Quality
Planning and Standards
(OAQPS)
Laura McKelvey
919-541-5497
mckelvev.laura@epa. gov
Office of Atmospheric
Programs (OAP)
Erica Bollerud
202-343-9282
bollemd.erica@epa.gov
Office of Transportation
and Air Quality (OTAQ)
Leila Cook
734-214-4820
cook.leila@epa. gov
Lucita Valiere
206-553-8087
valiere.lucita@epa.gov
Chris Griffin
202-343-9421
griffin.chris@epa.gov
Region 1
Eugene Benoit
617-918-1639
Region 3
Brian Hamilton
215-814-5497
hamilton.brian@epa. gov
Region 4
Ana Oquendo
404-562-9781
oquendo.ana@epa.gov
Mario Zuniga
404-562-8961
zuniga.mario@epa.gov
Melba Table
494-562-9086
table.melba@epa. gov
Region 5
Benjamin Giwojna
312-886-0247
giwoi na.beni amin@epa. gov
Monika Lacka
312-886-6556
lacka.monika@epa. gov
Avi Lapp
312-353-4855
lapp.avrohom@epa.gov
Region 6
Aunjanee Gautreaux
214-665-7127
gautreaux. anunj anee@epa. gov
Frances Verhalen
214-665-2172
verhalen.frances@epa.gov
Region 7
Paula Higbee
913-551-7028
higbee.paula@epa.gov
Region 8
Kyle Olson
303-312-6002
olson.kyle@epa.gov
Region 9
Sara Bartholomew
415-947-4100
bartholomew. sara@epa. gov
Laura Maghran
415-947-4107
maghran.lauren@epa. gov
Region 10
Andra Bosneag
206-553-1226
bosneag.andra@epa.gov
Erin McTigue
206-553-1254
mctigue.erin@epa.gov
Kayla Krauss
206-553-2728
krauss.kavla@epa.gov
benoit.eugene@epa.gov
Region 2
Gavin Lau
212-637-3708
lau.gavin@epa.gov
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A-2. OAR TRIBAL TEAM
Office of Air and Radiation fOAR
Pat Childers, OAR Tribal Program Manager
202-564-1082
childers.pat@epa.gov
Office of Air Quality Planning and Standards f OAQPS
Laura McKelvey
919-541-5497
mckelvey.laura@epa.gov
Office of Atmospheric Programs (OAP)
Erica Bollerud
202-343-9282
bollerud.erica@epa.gov
Office of Transportation and Air Quality (OTAQ)
Leila Cook
734-214-4820
cook.leila@epa.gov
Lucita Valiere
206-553-8087
valiere.lucita@epa. gov
Office of Radiation and Indoor Air (ORIA)
Chris Griffin
202-343-9421
griffin.chris@epa.gov
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A-3. OAQPS TRIBAL PROGRAM CONTACTS
OFFICE OF AIR QUALITY PLANNING AND STANDARDS (OAQPS)
Overall Tribal Representative
Laura McKelvey
919-541-5497
mckelvev.laura@epa. gov
Tribal Consultation Advisor (TCA) for TCOTS
Toni Colon
919-541-0069
colon.toni@epa. gov
OAQPS TRIBAL TEAM
Air Quality Assessment Division (AQAD)
Kelly Brown
919-541-4190
brown.kelly@epa.gov
Air Quality Policy Division (AQPD)
Pam Long
919-541-0641
long.pam@epa.gov
Health and Environmental Impacts Division (HEID)
Martha Keating
919-541-2629
keating.martha@epa.gov
Sector Policies and Programs Division (SPPD)
Jodi Howard
919-541-467
howard.i odi@epa. gov
Outreach and Information Division (OID)
Toni Colon
919-541-0069
colon.toni@epa. gov
Regina Chappell
919-541-3650
Chappell.regina@epa.gov
James Payne
919-541-0961
payne.i amesi @epa. gov
Amanda Kaufman
919-541-2388
Kaufman.amanda@epa.gov
Tami Laplante
919-541-1915
laplante.tami@epa. gov
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A-4. OAP TRIBAL PROGRAM CONTACTS
Office of Atmospheric Programs (OAP)
Erica Bollerud, OAP Tribal Program Contact
202-343-9282
bollemd.erica@epa.gov
Clean Air Markets Division (CAMD
)
Vacant
Climate Change Division (CCD
)
Dana Krishland
202-343-9963
krishland.dana@epa.gov
Climate Protection Partnership Division fCPPDl
Julie Rosenberg
202-343-9154
rosenberg.iulie@epa.gov
Stratospheric Protection Division fSPDl
Nancy Akerman
202-343-9743
akerman. nancv@epa. gov
Updated 8/7/2017
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OAR Handbook for Interacting with Tribal Governments
A-5, ORIA TRIBAL PROGRAM CONTACTS
Office of Radiation and Indoor Air (ORIA)
ORIA Tribal Program Contact
Chris Griffin
202-343-9421
griffin.chris@epa.gov
Updated 1/24/18
42
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OAR Handbook for Interacting with Tribal Governments
A-6, OAR TRIBAL CONSULTATION ADVISORS FOR
TRIBAL CONSULTATION TRACKING SYSTEM (TCOTS)
Office of Air and Radiation (OAR
Pat Childers
202-564-1082
childers.pat@epa. gov
Office of Air Quality Planning and Standards (OAQPS)
Laura McKelvey
919-541-5497
mckelvev.laura@epa.gov
Toni Colon
919-541-0069
colon.toni@epa.gov
Updated 1/24/18
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OAR Handbook for Interacting with Tribal Governments
A-7. INCORPORATING TRIBAL CONSIDERATIONS INTO TIER 1 AND TIER 2 ACTIONS UNDER THE ADP
Incorporating Tribal Considerations into Tier 1 and 2 Actions underthe ADP
atute, co
order, Presidential
initiative, or
,Administrator's
priority as cause
fbrtaking a
regulatory related
action
2. Tiering: Lead programgivestiering
form (AJF) with recommended tier
level to Regulatory Management
Division for distribution to the
Regulatory Steering Committee.
1A. Addressing
an identified
tribal issue coUd
also serve as a
reason to take
an action.
2A. AEIO reviewsAIF
for potentialtribal effects.
2b. inhere are potential
effeds, lead should
notify OAR Tribal Air
Program Contact.
3. Workgroup
prepares
Preliminary
Analytical
Blueprint.
I
3A. Complete an initial screen. Ifthere
are potential effects, notify OAR Tribal
Air Program Contact,then identify
issues, data gathering needs, and
analysesthat should be undertaken for
refined analysis. Ifno potential effects,
rule witer doesnot addressfribal
consideration until step 9 (preamble
development), unlessunexpected
issues aria.
Early
Guidance:
Tierl: AJDA
a AA's; Tier
2: Lead AA
participating
AA's
5. Workgroup prepares
Detailed Analytic Blueprint
(DABP). Itisa workgroup's
plan for developing analysis
and coordination on
scientific, economic, and
legal issues; stakeholder
involvement; and
implementation,
enforcement, and
compliance assurance.
4A. Managers ask ifthere
aretribal effects. Ifthere
are effects, ask ho wthese
effects will be addressed.
R evi ewi n form ation to be
gathered for refined tribal
effects analysis.
4B. AEIO/Tribal
Coordinatorsparticipate in
Early Guidance Meetings.
5A. DABP acidressestribal
effects, i.e., in public
involvement plan, key
analyses, information
gathered, options
considered, Sin the
timeline.
Manage,
ment
approves
DAPB
6A. Managers
look forhow
tribal effects are
addressed in
DABP before
approving it.
5B. AEIO/Tribal
Coordinators reviewDABP.
7. Wo rk g roup un dertakes an al yses an d
consultation required by other statutes and
EO's, (e.geffects on s/lA govts; small
busin esses, chil dren's health i ssues; etc.)
Wo rk group d evelops reg ulatory o ptions.
7A. Early input from tribal enviro.
professional s., prepare dataon results o f
consultations/public involvement and data on
tribal effects and options, including optionsto
mitigate adverse effects, as appropriate.
7B. AlEO.TriL Coordinates^
consultation.
Option
seledion:
Tierl:
AJDAS
AAs;Tier2
LeadAAS
rk group
8A. AJEO/Tribal
Coordinators
participate in
OptionsSeledion
10. Final
agency review
meeting
AAJRA
position of
participating
cesAegio
11. If rule is
significant under EO
12866," OPEI reviews
and submits to OMB.
9. Workgroup prepares
preamble, rule/action and
sup porting documents.
9A. AddressE013175in preamble,discuss
and d o cum entim pad analysis. If applicable,
ad dress public outreach .consider highlighting
tribal options forcomment, and address
si gnificant tribal effeds in adion memo.
9B. As needed, consult with WE 0 JTribal
Coordinators, offer consultation, S conduct
coordination with enviro. professionals.
10A. If action hastribal effects,
include AIEO /Tribal
Coordinatorsin FAR.
12. OMB Review;
OMB has 90 days to
review"significant"
rules.
13. Administrator or
AAJRAsigns.
14. EPA submits rule to the Office of
Federal Registerfor publication (1 week to
3 m o nth s d epending o n co m plenty an d
length). E-DocketandPublicDoctet
opened.
15. Public comment period
(typically 60 days); public
hearingas applicable.
16. Developingthe final action.
(Processsteps 4-14
are repeated.)
13A. All Action Memos
describe what was done
to identify® address
tribal effeds.
15A If tribal effeds were identified, addresstribal comments &
co nsiderne wo ptions as appropriate. Initiate consultation as
appropriate.
15B: Iftribal effeds were raised in
comments, butEPAdid notdoan analysis,
notify AIEO/Tribal Coordinator at end of
public comment period.
Boxes Outlined in Red Show When Tribal Cmiderations Should Belncoipointed Into Process
Updated 1/24/18
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OAR Handbook for Interacting with Tribal Governments
A-8. OAR EFFECTS ON TRIBES ASSESSMENT FORM
OAR EFFECTS ON TRIBES ASSESSMENT FORM
(For OAR Actions and/or Decisions)
~ OAP ~ OAQPS ~ ORIA ~ OTAQ
Name of Action and/or Decision:
Project Lead Name & Number:
Division & Group:
Tribal Contact:
Action and/or Decision Stage (e.g., design, data gathering, pre-proposal, proposal, final, other)
Estimated date of next major action and/or decision (e.g., proposal or final)
Type of Action and/or Decision: ~ Regulation ~ Policy ~ Guidance ~ Voluntary Program ~ Other
Scope of Action: D National ~ Regional ~ Pilot(s)
~ Sources (number and location)
~ Pollutants addressed
To assess whether an action and/or decision may affect tribal interests, please address the following questions. (If the answer is
YES and more space is needed please explain on an attached sheet.)
~ Does this action and/or decision establish new federal standards or significant policy or guidance?
~ Is the planned activity designed with intent to include activities in Indian country? (e.g., training or
grants)
~ Does this action and/or decision negatively affect tribal interests — or is it close enough to potentially affect
Indian country, Alaska Native Villages and/or Alaska Native Corporations?
~ Have any of the tribes (either nationally or through the regions) shown interest in and/or concerns with this
rule or voluntary program development or change?
Specific to regulatory actions:
~ Does the action and/or decision impose an economic cost upon Indian tribes?
~ Does the action affect tribal interests (human health, ecological, cultural, economic, and/or social impacts)?
~ Will this action and/or decision affect tribal treaty resources?
o Will it affect trust lands that may be outside a reservation boundary?
o Are there localized effects on resources that may be outside a reservation boundary — but for which a
tribe (or tribes) has treaty rights -- such as the ability to take water, hunt, fish, or gather a resource
from a certain area?
~ Will this action and/or decision affect the relationship (or the distribution of power) between the federal
government and Indian tribes?
o Example: Will the action and/or decision affect the status of tribes as a co-regulator or the tribe's
right to self-governance?
o Are there any special legal considerations such as jurisdiction in Indian country?
If at least one answer is YES. consultation with the potentially affected tribal officials may be warranted along with coordination.
If ALL answers are NO. consultation may not be called for; however, coordination is recommended.
Refer to the OAR Handbook for Interacting with Tribal Governments for more information.
Please submit completed form to the tribal contact within your program office.
Updated 1/24/18
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OAR Handbook for Interacting with Tribal Governments
A - 9, TRIBAL COORDINA TION AND CONSUL TA TION STRA TEG Y: R ULEMAKINGS
1) Early in Action Development Process (ADP)
a. Contact sub-lead EPA region and give brief overview of action on monthly Tribal Air
Coordinator (TAC) call.
b. Meet with tribal environmental professionals (TEPs) on monthly National Tribal Air
Association (NTAA)/EPA calls, Regional Tribal Operations Committee (RTOC) or other
tribal forum(s) to present key concepts of the action and/or decision and get input on tribal
effects.
1. Work with your tribal program contact(s) to identify appropriate forums.
2. Your tribal program contact can help you communicate with the tribes and the EPA
regional tribal contacts (TACs and other regional staff) as well as develop
communication materials that are tribal friendly.
2) Prior to Proposal of Action
a. Meet with tribal personnel to present the key concepts in the action. (Note: generally this is
done with TEP staff, but if there are relevant tribal effects or interest, an opportunity for
consultation with elected tribal officials or their authorized representatives should take
place.)
1. If consultation is called for, send letters to tribal leaders and key consortia to provide
an opportunity for consultation.
2. Respond to tribal leaders' request(s) as appropriate.
3) After Proposal of Action
a. Conduct ongoing outreach to explain the content of the proposal and to encourage input from
the tribes on TAC, NTAA calls, RTOC meetings, and other forums. Additional consultation
with tribal leaders or their authorized representatives should be conducted as appropriated.
b. Mechanisms for highlighting the proposal:
1. Tribal Air Newsletter
2. Tribal Air Website at http://www.epa.gov/air/tribal/
3. Tribal Listserv
4) After Final Action
a. Conduct coordination to explain the content of the final rule.
b. Mechanisms for highlighting the final decision and identifying next steps:
1. Tribal Air Newsletter
2. Tribal Air Website at http://www.epa.gov/air/tribal/
3. Tribal Listserv
c. Follow-up with tribes.
Updated 1/24/18
46
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OAR Handbook for Interacting with Tribal Governments
10. TRIBAL COORDINATION AND CONSULTATION STRATEGY: VOLUNTARY PROGRAMS
(Example]
OAFfs Tribal Strategy for the Office of Indoor Air and Radiation
Purpose of Tribal Strategy
Improve effectiveness of ORIA's mission in Indian country through 3 strategic goals:
Optimize ORIA's radiation and indoor air programs' timited resources more efficiently and
effectively.
Increase collaboration across EPA regional offices and Headquarters.
• Increase responsiveness to tribes.
Purpose of Collaboration Strategy
Primary purpose: To address goal 3 above, to seek tribal input on priorities, needs, concerns, and
to get recommendations.
Secondary purpose(s): Make tribes aware of OAR's Tribal Strategy for the Office of Indoor Air and
Radiation's efforts and processes.
Manage expectations (no new resources anticipated; only ORIA mission),
{process used to develop the Strategy and seek tribal comment).
Demonstrate greater tribal emphasis by ORIA.
Initiate /cultivate relationships with tribes.
Formal Consultation?
Formal consultation is not envisioned. This is a voluntary effort and can evolve to formal consultation if
requested or indicated. We also believe that this effort will be most successful if we can work at the
"Tribal Environmental Professional" level rather than with tribal leadership. The tribal environmental
professionals are dealing with indoor air and radiation concerns directly, and should be the best source
of relevant and constructive input on how ORIA can design its program to be most effective.
Collaboration Approach
The approach is based on a successful strategy used by OAQPS for their tribal plan. The overall approach
is to work with a subset of tribal professionals to develop a draft or "straw" proposal, OARTribal
Strategy for the Office of Indoor Air and Radiation, and then seek broad (national) input from ail
interested tribes on the straw proposal. The Indoor Air and Radiation approach varies slightly initially.
For Indoor Air, the plan is to identify a small group (5-8) of tribal professionals with a solid background in
operating a Tribal IAQ program. Their input will be used to develop the straw proposal. Ideally, we will
have a 2-3 day face to face meeting with the tribal professionals and key EPA staff (indudi ng ma nagers).
We'll try to take advantage of other tribal meetings to leverage travel resources. To develop the
Collaboration Plan/ OAR's Tribal Strategy for Indoor Air and Radiation 1
Updated 1/24/18
47
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OAR Handbook for Interacting with Tribal Governments
A-10. TRIBAL COORDINATION AND CONSULTATION STRATEGY: VOLUNTARY PROGRAMS
(continued)
radiation content of the straw, we'll identify individual Tribes that are dealing with unique issues (legacy
uranium contamination, proximity to a Nuclear Power Plant, potential impact from future/planned
mining or extraction activities, impact from a uranium processing facility). Rad listening sessions will be
by phone. This initial tribal input will be summarized and included in the straw proposal. The plan is to
develop a set of Tribal lAQand radiation priorities and recommendations to include in the straw
proposal (OAQPS example). We plan to seek broad tribal comment on the straw proposaI through
various means (see Process), revise and finalize the OAR Tribal Strategy for the Office of Indoor Airand
Radiation based upon tribal input [as well as EPA input), then move to outreach and implementation of
the final plan.
Collaboration Process & Timeline
Planned Date
Activity
Mechanism
Status / Notes
Aug 2011(o ngoing)
Announce ORIA
intentions and process
to develop the Tribal
Strategy
WTAACall, IMTAA email
distribution, TAC call,
ORIA Regional call,
TAMS Steering
Committee, ITEP
Feb 2013
Identify and Invite
participants for IAQ and
Radiation "straw
development" listening
sessions
Feb-Mar 2013
Develop standard
questions for the
listening sessions
Mar 2013
Develop agenda and
background piece on
the tribal strategy for
the listening sessions
Mar-Apr 2013
Conduct initial listening
sessions (for Straw")
IAO- Face to Face in Las
Vegas with TAMS
meeting. Rad calls
Face to Face cancelled.
2 phone conferences.
May 2013
Complete straw ORIA
Tribal Strategy proposal
May 2013
Develop /complete
presentation for IMTF
May 2013
NTF sessions: announce
straw proposal, hold
info & listening session
Training Session , Eco-
Cafe
May 2013
Announce availability of
the strav/ and interest
in comments
MTAA, TAMS SC, OAQPS
and ORIA tribal
Web Pages
Jun 2013
Schedule, announce
webinar listening
sessions.
OAQPS email
distribution, NTAA Call,
MTAA email
Delayed until late
Aug/Early Nov
Collaboration Plan / QAR's Tribal Strategy for Indoor Airand Radiation 2
Updated 1/24/18
48
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OAR Handbook for Interacting with Tribal Governments
A-10. TRIBAL COORDINATION AND CONSULTATION STRATEGY: VOLUNTARY PROGRAMS
(continued)
distribution, TAC call,
ORIA regional call,
TAMS steering
committee, OAQPS and
ORIA tribal web pages
Jul-Aug 2013
Hold 2 informational
wetoinars/ listening
Sessions
Held in August and
September 2013
#1 = 55 Registered/48
attended
#2 = 36
Registered/2Sattended
Sep 2013
Finalize plan
Delayed to coincide
with ORIA Natl. Meeting
in Nov 2013
Oct 2013
Conduct outreach on
plan
OAQPS email
distribution, NTAA Call,
MTAA email
distribution, TAC call,
ORIA regional call,
TAMS Steering
Committee, OAQPS and
ORIA tribal web pages
Nov-ongoing
Oct 2013(ongoing)
Implement plan
Nov - ongoing
Collaboration Plan / QAR's Tribal Strategy for indoor Airand Radiation 3
Updated 1/24/18
49
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OAR Handbook for Interacting with Tribal Governments
A-11. FACT SHEETS FOR TRIBES (Example)
1. Final Rule: Greenhouse Gas Reporting Rule Leak Detection Methodology Revisions and
Confidentiality Determinations for Petroleum and Natural Gas Systems
https://www.epa.gov/sites/production/files/2016-ll/documents/5847 factsheet.pdf
2. Hospital/Medical/Infectious Waste Incinerators: Promulgated Amendments to the Federal
Plan to Implement Standards of Performance for Existing Facilities and Promulgated
Amendments to the New Source Performance Standards
http://www.epa.gov/ttn/oarpg/t3/fact sheets/himwi prop fs 032812.pdf
3. Proposal: Amendments to Delegation of Authority Provisions in the Prevention of Significant
Deterioration (PSD) Program
https://www.epa.gov/sites/production/files/2016-02/documents/final part52 factsheet O.pdf
Updated 1/24/18
50
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (Example 1)
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
UJ
RESEARCH TRIANGLE PARK, NC 27711
OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
May 31.2013
Dear Tribal Leader:
On May 23, 2013, the U.S. Environmental Protection Agency proposed amendments to the Tribal
Minor New Source Review (NSR) rule. Hie purpose of this letter is to invite you to consult, should
you believe that your tribe could be affected by these amendments.
The EPA is proposing the following amendments:
o Add seven categories of emissions units activities to the current list of sources
exempted from minor source permitting. The existing rule exempts seven categories
from permitting that do not emit NSR pollutants or that emit these pollutants in
negligible amounts. The seven additional categories that the EPA is proposing to
exempt from minor NSR permitting requirements include:
¦ Certain emergency generators.
¦ Internal combustion engines rated below 50 horsepower.
¦ Certain small furnaces or boilers used for space heating.
¦ Single-family residences and residential buildings with four or fewer dwelling
units.
¦ Air conditioning units not associated with industrial processes.
¦ Forestry or silvicultural activities.
¦ Cooking of food other than wholesale businesses that both cook and sell
o Add definitions to clarify construction-related activities. The proposed terms are
tailored specifically to address the minor NSR program. The existing rule refers to the
major NSR rale definitions. Implementation of the minor NSR rale would be easier if
terms are contained within it.
o Reconsider the advance notification period required for true minor sources that have
registered with their permitting authority and later relocate. The existing rule requires
30 days notification prior to relocation. The EPA is requesting comment on advance
notification periods between 10 and 30 days.
Updated 1/24/18 51
cooked food,
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (,continued)
The EPA will accept comment for 60 clays after the proposed rule is published in the Federal Register
on or about June 15. 2013. We will be available to discuss the proposed revisions, however, if you
prefer to initiate govemnient-to-govemment consultation with the EPA on this rule, please contact
Toni Colon at (919) 541-0069. email: colon,torn S'epa.gov. Please contact us by June 28. 2013 in
order to request consultation.
We request your input to assure that we develop the best rule possible. We endeavor to conduct our
efforts with sensitivity to the needs and culture of your tribe and with attention to the potential impact
of our actions. We look forward to hearing from you.
Sincerely,
Anna Marie Wood
Director
.Ah' Quality Policy Division
cc: Tribal Environmental Director
Tribal Environmental Staff
Updated 1/24/18
52
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (Example 2)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK, NC 27711
OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
November 1,2013
Dear Tribal Leader:
As part of President Obama's Climate Action Plan, the U.S. Environmental Protection Agency is
working expeditiously to complete carbon pollution standards for both new and existing power
plants under the Clean Air Act (CAA). Our efforts will need to address the efficiency and
performance of power plants that bum fossil fuels such as coal and natural gas. Among the
potential outcomes are requirements is greater efficiency from the infrastructure and resources on
which your community depends.
Following through on this action under the President's Climate Action Plan, the EPA is
proposing performance standards for new power plants that bum fossil fuel. 'ITie proposed
standards will be published shortly and open for comment. This action, signed on September 20,
2013, is the EPA proposal titled "Greenhouse Gas New Source Performance Standard for
Electric Utility Steam Generating Units."
For our effort to address existing sources, the EPA is holding 11 public listening sessions
across the country to solicit ideas and input from the public and stakeholders about the best
CAA approaches to reduce carbon pollution from existing power plants. The feedback from
these 11 public listening sessions will play an important role in helping the EPA develop
smart, cost-effective guidelines to reduce carbon pollution from existing power plants that
reflect the latest and best information available. The agency will then propose these guidelines
and seek public input during the notice and comment period. We anticipate releasing a proposal
by June 2014. Also by June 2014. the EPA will propose performance standards for modified and
reconstructed power plants. For more information on these listening sessions to address existing
plants and to register online, go to: httn:.-7www2.cna.gov.fcarbon-nollution-standards/t)ublic-
listening-sessions. For those who cannot attend these sessions, input can be e-mailed to:
carbonnollutioninnutMiena.gov. The agency will continue to actively seek and accept input,
data analysis and suggestions through the month of November, and plans to begin drafting the
proposal before the end of the year in order to meet the June 2014 proposal deadline called for by
the President's Climate Action Plan.
Although we are holding listening sessions broadly and both initiatives will be carried out
through notice-and-comment rulemaking, we recognize our responsibility to consult on a
govemment-to-govemment basis with federally recognized tribes on efforts that may affect tribal
$ Q ^
w
Updated 1/24/18
53
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (continued)
interests. Consultation is a process of meaningful communication and coordination between the
EPA and tribal officials prior to the EPA taking actions or implementing decisions that may
impact tribes. 'ITiis letter is a formal invitation for consultation with the EPA on behalf of your
tribe and community to discuss the actions that we are preparing with respect to the President's
Climate Action Plan. Throughout the development of these actions, the EPA will engage with
tribal staff as well as stakeholders from states, local governments, the private sector and non-
profit organizations.
To ensure that your lands and interests are duly considered, we are prepared to consult with you
or your designee should you desire. If you would like to initiate government-to-government
consultation with the EPA on these actions, please contact Matthew Witsoky at (919) 541-2865,
email: witosky.matthew@cpa.gov or Toni Colon at (919) 541-0069, email: colon.toni@epa.gov.
If you desire government-to-govemment consultation with the EPA, we kindly request that you
notify us by November 26, 2013.
We seek your input to assure that we conduct our efforts with sensitivity to the needs and culture
of your tribe and with attention to the potential impact of our actions. We look forward to
receiving your feedback.
Sincerely,
/s/
Peter Tsirigotis
Director
Sector Policies and Programs Division
cc: Tribal Environmental Director
Tribal Environmental Staff
Updated 1/24/18
54
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (Example 3)
f \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I I RESEARCH TRIANGLE PARK, NC 2771 I
OFFICE OF
AIR QUALITY PLANNING
AND STANDARDS
August 3, 2011
E>ear Tribal Leader:
On July 12, 2011, the U.S. Environmental Protection Agency (EPA) proposed to set additional
secondary (welfare) national ambient air quality standards (NAAQS) for oxides of nitrogen and sulfur.
These standards provide protection against air pollutants that impact public welfare such as ecosystems,
vegetation, and other resources. The purpose of this letter is to invite you to consult on this proposal.
EPA is proposing to retain the existing secondary NAAQS for oxides of nitrogen and sulfur. These
proposed standards are:
• For NO?: 0.053 ppm (parts per million) averaged over one year
• For SO2: 0.5 ppm averaged over three hours and not to be exceeded more than once per
year'
EPA is also proposing to establish an additional set of secondary standards identical to the new health-
based primary standards the Agency set in 2010. These standards are:
• For NO2: 100 ppb (parts per billion) averaged over one hour
• For S02: 75 ppb averaged over one hour
The proposed rule and accompanying materials, including maps relating to current ah quality and
deposition of oxides of nitrogen and sulfur in the U.S., are available on EPA's website at
http: //www, epa. gov/ttn/naa as/standards/no2 so2 sec/index, html.
EPA has made significant progress in developing a multi-pollutant standard that would address the
indirect effects NOx and SOx have on sensitive ecosystems. While there is strong scientific support for
developing this type of standard. EPA does not yet have enough information to set a multi-pollutant
standard that adequately protects the diverse ecosystems across the country. EPA is planning a field pilot
program to collect and analyze additional data and information that would help inform the next five-year
review of the standards for oxides of nitr ogen and sulfur,
EPA does not believe the proposed rule will have adverse implications for tribes. By setting the
secondary standard equal to the primary standar d there are no new implementation or monitoring
requirements for states. However, to ensure that your lands and interests are protected, we open the door
to consultation and welcome any additional information about the standards or potential impacts you
would like to share.
EPA will accept comment for 60 days after the proposed rule is published hi die Federal Register on or
about August Is*. EPA will also hold a public hearing in Washington. DC hi late August or early
September. We will be available to discuss the proposed revisions in other settings as well, such as the
NTAA call on August 25th. If you prefer to initiate a formal consultation with EPA on this rule, please
contact Angel McCormack at (919) 541-3588. email: mcconnack.angel@epa.gov or Laura McKelvey
at (919) 541-5497, email: 111ckelvey.laura@epa.gov.
Updated 1/24/18
55
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OAR Handbook for Interacting with Tribal Governments
A-12. TRIBAL CONSULTATION LETTER (continued)
We want your input to assure that we develop the best rules possible. We endeavor to conduct our
efforts with sensitivity to the needs and culture of tribes and with attention to the impact of our actions
on tribal sovereignty. We look forward to receiving your input.
Sincerely.
Lydia N. Wegrnan
Director
Health and Environmental Impacts Division
cc: Tribal Environmental Director
Tribal Environmental Staff
Updated 1/24/18
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OAR Handbook for Interacting with Tribal Governments
13. CERTIFICATION MEMO FROM OAR TO OITA (Example)
g \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I S WASHINGTON. D C. 20460
MAY -4 2011
office of
AIR AND RADIATION
MEMORANDUM
SUBJECT: Requesting Concurrence on Consultation Activities per Executive Order 13175
for the Transport Rule
FROM: Gina McCarthy
Assistant Admi
¦
ipkfrator
TO: Michelle J. DePass
Assistant Administrator
Office of International and Tribal A flairs
This memorandum outlines the tribal consultation and coordination activities that took place
related to the Transport Rule by the Office of Air and Radiation's Office of Atmospheric
Programs (OAP). Office of Air Quality Planning and Standards (OAQPS), and Office of Policy
Analysis and Review (OPAR). Based on the interactions and outreach performed by OAR with
tribal representatives, we are requesting your concurrence that we have complied with Executive
Order (I-.0.) 13175 Consultation and Coordination with Indian Tribal Governments.
The Transport Rule is designed to reduce the transport of air pollution that impairs air quality
and harms the health of people living in downwind areas. The proposed rule will help areas in
the eastern United States meet existing national air quality standards for ozone and particulate
matter by reducing emissions of sulfur dioxide (S02) and nitrogen oxide (NOx) from large power
plants. The rule is scheduled for final signature by June 30, 2011.
Consultation and Outreach to Tribal Leaders and Representatives
Prior to development of the rule, EPA notified tribes of our intent to propose the Transport Rule
in the fall of 2009 during a regularly scheduled meeting to update National Tribal Air
Association members of upcoming EPA policies and regulations and to receive input from them
on the effects of these efforts in Indian country.
During development of the rule, EPA determined that none of the power plants potentially
affected by the proposed rule were located on tribal lands. In addition, all areas in the proposed
Transport Rule region (31 Eastern states and the District of Columbia) were expected to
experience improvements in air quality as a result of the rule. Due to these findings, EPA stated
in the proposed rule that the Transport Rule did not have tribal implications.
Internet Address (URL) • http://www.epa gov
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A-13. CERTIFICATION MEMO FROM OAR TO OITA (continued)
In September 2010, during the comment period for the proposed rule, EPA held a webinar for
environmental justice communities on the rule. A presentation tailored for an audience of
environmental justice community and tribal representatives was specifically designed for this
webinar. It was sent to registered participants beforehand and posted on the Transport Rule
webpage (http://epa. go v/ai rtransport'). The presentation included information on the context of
the rule, plain language information on the rule itself, and directions on how to comment on the
rule. The public comment period for the proposed Transport Rule closed on October 1.2010.
RPA received comments that the Agency did not properly conduct consultation
during the proposal phase of the rulemaking process. In response to these comments,
EPA sent 583 letters in December 2010 to all federally-recognized tribes in the
country offering consultation. In addition, several commenters also noted that the
Agency did not adequately consider opportunities for tribes to enter into any of the
trading programs and, in particular, did not consider sovereignty issues when
addressing how to distribute allowances to potential new units in Indian country. On
January 7, 2011, EPA issued a NODA requesting comment on new unit allocations in
Indian country, among other topics.
The Agency held a consultation call with three tribes on January 21, 2011. A follow up call was
held on February 4, 2011 with two of the three original tribes plus 12 additional tribes and
representatives from the National Tribal Air Association. In all, ten tribes participated in these
calls as consultation and five participated as information-sharing. EPA considered the additiona
input from these consultation and information calls, in conjunction with the public comments, ir
the development of the final rule. Accordingly, EPA has proposed creation of an Indian country
new unit set-aside in the final rule to specifically address tribes' concerns regarding the
distribution of allowances for new units in Indian country and protection of tribal sovereignty.
After the Transport Rule is promulgated, we intend to conduct similar outreach efforts to
tribes, particularly those that participated on the consultation and information calls.
Thank you for your consideration in your concurrence that we have complied with E.O. 13175
Consultation and Coordination with Indian Tribal Governments. If you have questions or need
further information, please do not hesitate to contact me or have your staff contact Erika Wilson
at (202) 343-9113.
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A-14. MEMO CERTIFYING CONSULTATION FROM OITA TO OAR (Example)
ST„
or
USE?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
Office of
International and
Tribal Affairs
MEMORANDUM
SUBJECT: Transport Rule: Certification of compliance to E.O. 13175
TO: Gina McCarthy, Assistant Administrator
Office of Air and Radiation
FROM: (/Michelle DePass. Assistant A6ministr;
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments
(Executive Order), requires that each federal agency provide a meaningful and timely
opportunity for consultation concerning the development, administration, and enforcement of
regulations that have tribal implications. The Executive Order further stipulates that a designated
agency tribal consultation official must certify compliance.
As EPA's designated tribal consultation official, I certify that the Office of Air and
Radiation's (OAR) consultation activities for the proposed Transport Rule is compliant with the
Executive Order based upon your recitation of consultation activities taken including:
Prior to development of the rule, EPA notified tribes of our intent to propose the
Transport Rule through the National Tribal Air Association, a tribal liaison group
that EPA established for the purpose of sharing information on and discussing
Agency air policies and activities.
EPA held a webinar for environmental justice communities on the rule that
included tribal representatives.
In response to tribal comments that EPA received during the public comment
phase that the Agency did not properly conduct tribal consultation during the
proposal phase of the rulemaking process, EPA sent letters to all federally-
recognized tribes offering consultation.
Additionally, in response to comments received from tribes during the public
comment phase that the Agency did not adequately consider opportunities for
tribes to enter trading programs, EPA issued a NODA requesting comment on
new unit allocations in Indian country.
Internet Address (URL) • hjtp://www epa.gcv
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A-14. MEMO CERTIFYING CONSULTATION FROM OITA TO OAR (continued)
Following the notification to tribes of the offer to consult, EPA held a
consultation call with three interested tribes with a follow up call that included
two of the three original tribes, 12 additional tribes, and representatives from the
National Tribal Air Association.
EPA considered the additional input from these consultation and information
calls, in conjunction with the public comments, in the development of the final
rule. Specifically, in response to tribal comments, EPA proposed creation of an
Indian country new unit set-aside in the final rale.
Moreover, after the Transport Rule is promulgated, OAR intends to continue
conducting outreach efforts to tribes.
The Office of International and Tribal Affairs thanks you for the consultation you have
conducted and the additional work with tribes you have planned. We are especially
appreciative of the effort to be responsive to tribal concerns that you have shown during
the consultation process.
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A-15. RULEMAKING PREAMBLE LANGUAGE (Examples)
Preamble
Regardless of the effects of a rule, you should summarize your activities in the EO
13175 section of your preamble. In the preamble, discuss and document the impact
analysis; address public outreach and consider highlighting tribal options for
comments. For rules, refer to the ADP for standard preamble and EO language -
note that this standard language may not be suited for all activities.
If your rule has impacts as defined in the EO 13175 (see below)
"Subject to EO 13175 (65 FR 67249; November 9, 2000) the EPA may not issue
a regulation that has tribal implications, that imposes substantial direct
compliance costs, and that is not required by statute, unless the federal
government provides the funds necessary to pay the direct compliance costs
incurred by tribal governments, or the EPA consults with tribal officials early in
the process of developing the proposed regulation and develops a tribal
summary impact statement. Executive Order 13175 requires the EPA to develop
an accountable process to ensure ' 'meaningful and timely input by tribal
officials in the development of regulatory policies that have tribal implications.''
then, you should use the appropriate rule preamble language which is located
in the Action Development Process (ADP) Template Library.40
Below are examples of earlier OAR actions that: 1) impose substantial direct
compliance costs on tribes, 2) have tribal effects but do not impose substantial direct
compliance costs, and 3) do not have tribal implications/effects. (Note: the examples
reflect the ADP language appropriate at the time of the action.)
40 Action Development Process Templates, http://intranet.epa.gov/actiondp/adp-templates/index.htm
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Example 1:
0 has tribal effects
0 imposes substantial direct compliance costs (section 5 (b))
0 requires a certification memo from OAR to OITA
Mercury and Air Toxics Standards (MATS)
National Emission Standards for Hazardous Air Pollutants From Coal and Oil-Fired
Electric Utility Steam Generating Units and Standards of Performance for Fossil-
Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small
Industrial-Commercial-Institutional Steam Generating Units
http://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-806.pdf (pages 137,138)
F. Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments
"Subject to EO 13175 (65 FR 67249; November 9, 2000) the EPA may not issue a
regulation that has tribal implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the federal government provides the
funds necessary to pay the direct compliance costs incurred by tribal governments,
or the EPA consults with tribal officials early in the process of developing the
proposed regulation and develops a tribal summary impact statement. Executive
Order 13175 requires the EPA to develop an accountable process to ensure
"meaningful and timely input by tribal officials in the development of regulatory
policies that have tribal implications."
The EPA has concluded that this action may have tribal implications. The EPA
offered consultation with tribal officials early in the regulation development process
to permit them an opportunity to have meaningful and timely input. Consultation
letters were sent to 584 tribal leaders, provided information regarding the EPA's
development of this rule, and offered consultation. At the request of the tribes, three
consultation meetings were held: December 7, 2010, with the Upper Sioux
Community of Minnesota; December 13, 2010, with Moapa Band of Paiutes, Forest
County Potawatomi, Standing Rock Sioux Tribal Council, and Fond du Lac Band of
Chippewa; January 5, 2011, with the Forest County Potawatomi, and a
representative from the National Tribal Air Association (NTAA). In these meetings,
the EPA presented the authority under the CAA used to develop these rules and an
overview of the industry and the industrial processes that have the potential for
regulation. Tribes expressed concerns about the impact of EGUs in Indian country.
Specifically, they were concerned about potential Hg deposition and the impact on
the water resources of the tribes, with particular concern about the impact on
subsistence lifestyles for fishing communities, the cultural impact of impaired water
quality for ceremonial purposes, and the economic impact on tourism. In light of
these concerns, the tribes expressed interest in an expedited implementation of the
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A-15. RULEMAKING PREAMBLE LANGUAGE (continued)
rule. Other concerns expressed by tribes related to how the Agency would consider
variability in setting the standards, and the use of tribal-specific fish consumption
data from the tribes in our assessments. They were not supportive of using work
practice standards as part of the rule, and asked the Agency to consider going
beyond the MACT floor to offer more protection for the tribal communities. In
addition to these consultations, the EPA also conducted outreach on this rule
through presentations at the National Tribal Forum (NTF) in Milwaukee, WI; phone
calls with the NTAA; and a webinar for tribes on the proposed rule. The EPA
specifically requested tribal data that could support the appropriate and necessary
analyses and the RIA for this rule. In addition, the EPA held individual consultations
with the Navajo Nation on October 12, 2011; as well as the Gila River Indian
Community, Ak-Chin Indian Community, and the Hopi Nation on October 14, 2011.
These tribes expressed concerns about the impact of the rule on the Navajo
Generating Station (NGS), the impact on the cost of the water allotted to the tribes
from the Central Arizona Project (CAP), the impact on tribal revenues from the coal
mining operations (i.e., assumptions about reduced mining if NGS were to retire one
or more units), and the impacts on employment of tribal members at both the NGS
and the mine. More specific comments can be found in the docket. The EPA will
continue to work with these and other potentially affected tribes as this final rule is
implemented."
Example 2:
0 has tribal effects
~ imposes substantial direct compliance costs (section 5 (b))
~ requires a certification memo from OAR to OITA
Tribal Minor New Source Review (NSR) Rule
Review of New Sources and
Modifications in Indian Country
http://www.gpo.gOv/fdsys/pkg/FR-2011-07-01/pdf/2011-14981.pdf (pg. 40)
F. Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments
"Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may
not issue a regulation that has tribal implications, that imposes substantial direct
compliance costs and that is not required by statute, unless the Federal government
provides the funds necessary to pay the direct compliance costs incurred by tribal
governments or EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
The EPA has concluded that this action does not have tribal implications because it
will neither impose substantial direct compliance costs on tribal governments, nor
preempt tribal law. This action provides two preconstruction air permitting rules for
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A-15. RULEMAKING PREAMBLE LANGUAGE (continued)
stationary sources in Indian country, but these rules will neither impose substantial
direct compliance costs on tribal governments nor preempt tribal law because these
rules will be implemented by EPA or a delegate tribal agency that has requested to
assist EPA with administration of the rules, until replaced by an EPA approved
tribal implementation plan. Nonetheless, EPA conducted substantial outreach and
consultation with tribal officials and other tribal representatives and has
incorporated tribal views, throughout the course of developing these rules. See
section III.D of this final rule preamble for more details on our tribal outreach and
consultation efforts."
Example 3:
~ has tribal effects
~ imposes substantial direct compliance costs (section 5 (b))
~ requires a certification memo from OAR to OITA
0 no tribal effects; certification is not required
Primary NAAQS for S02
Primary National Ambient Air Quality
Standard for Sulfur Dioxide
http://www.epa.gov/ttn/naaqs/standards/so2/fr/20100622.pdf (pages 71,72)
F. Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments
"Executive Order 13175, entitled "Consultation and Coordination with
Indian Tribal Governments" (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure "meaningful and timely input by
tribal officials in the development of regulatory policies that have tribal
implications." This final rule does not have tribal implications, as specified in
Executive Order 13175. It does not have a substantial direct effect on one or
more Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities between the
Federal government and tribes. The rule does not alter the relationship between
the Federal government and tribes as established in the CAA and the TAR. Under
section 109 of the CAA, EPA is mandated to establish NAAQS; however, this rule
does not infringe existing tribal authorities to regulate air quality under their own
programs or under programs submitted to EPA for approval. Furthermore, this rule
does not affect the flexibility afforded to tribes in seeking to implement CAA
programs consistent with the TAR, nor does it impose any new obligation on tribes
to adopt or implement any NAAQS. Finally, as noted in section E (above) on
UMRA, this rule does not impose significant costs on tribal governments. Thus,
Executive Order 13175 does not apply to this rule."
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A-16. EPA RESPONSE LETTER TO TRIBE (Example)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
MAY 1 0 2012
OFFICE OF
AIR AND RADIATION
The Honorable Gregory Mendoza
Chairman of the Gila River Indian Community
P.O. Box 97
Sacaton, Arizona 85147
Dear Governor Mendoza:
I am writing to thank you for your input on the Mercury and Air Toxics Standards (MATS) for power
plants previously referred to as the National Emission Standards for Hazardous Air Pollutants from
Coal- and Oil-fired Electric Utility Steam Generating Units (EGUs) (http://www.epa.gov/mats).
This letter provides our response to your comments as required under the Agency's consultation policy.
As you are aware, the U.S. Environmental Protection Agency offered consultation with tribal officials
early in the rule development process to allow for the opportunity to provide meaningful and timely
input. On October 25, 2010, letters offering consultation were sent to 584 tribal leaders. The
consultation letter provided information regarding EPA's development of rules to reduce toxic air
pollution from coal- and oil-fired EGUs. In an effort to inform the tribes of this upcoming rule, the EPA
conducted outreach through: presentations at the National Tribal Forum (NTF) in Milwaukee,
Wisconsin from June 14 - 16, 2011; monthly National Tribal Air Association calls; and a webinar on the
proposed rule for the tribal community on May 5, 2011.
In response to your requests for consultation, we held a series of meetings with you and members of
your staff, including an informational meeting on September 16, 2011, in Phoenix, Arizona on both Best
Available Retrofit Technology (BART) and MATS; a technical webinar on October 6, 2011, concerning
the modeling conducted for the rule; and a face-to-face consultation with you and your staff at the Gila
River Indian Community reservation on October 14, 2011.
In these meetings, we heard concerns from you and other tribes about the impact of the rule on the
Navajo Generating Station (NGS) and from other tribes that rely on NGS to support their water
settlement agreements and other potential impacts. You expressed concerns about the impacts of these
rules on the cost of the water allotted to the tribes from the Central Arizona Project (CAP), the impact on
tribal revenues from coal mining operations and the impacts on employment of tribal members at both
the NGS and the mine. In addition, you and other CAP impacted tribes submitted comments on the
Agency's trust responsibility, your concerns regarding the impacts to tribal sovereignty and insufficient
consultation on the rulemaking process. Enclosed are the Agency's specific responses to your comments
about the impacts of this rule on the NGS; these comments appear in the final MATS rulemaking action.
Internet Address (URL) • http //www epa gov
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A-16. EPA RESPONSE LETTER TO TRIBE (continued]
The EPA is committed to working with you, NGS and the other involved federal agencies to determine
the most appropriate way to implement the MATS and BART rules for NGS in a manner that supports
the ongoing needs of your tribe.
Again, thank you for your participation in the development of this rule and I look forward to working
with you and other members of your tribes in the future on this and other important matters.
Sincerely,
Janet McCabe
Principal Deputy Assistant Administrator
Enclosure
cc: Charles L. Franklin
Akin Gump Strauss Hauer & Feld LLP
on behalf of Gila River Indian Community
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OAR Handbook for Interacting with Tribal Governments
A-16. EPA RESPONSE LETTER TO TRIBE (continued)
EPA Response to Comments from the Gila River Tndian Community
On the Mercury Air Toxics Standards (MATS) Rule
Comment 1: Consultation: Several tribes expressed concerns with the consultation that took
place with their governments as required by Executive Order (E.O.) 13175. You were troubled
that we had not undertaken any formal consultation with your tribal community, despite a formal
request submitted in July 2011. You believed that given the nature of the interests at stake, the
implications of the proposed rule, and the EPA's federal trust obligations, consultation must be
among senior-level EPA officials and tribal leaders.
EPA Response; We appreciate these comments and recognize the importance of
appropriate consultation with tribes in developing this rule, consistent with the federal
government's trust responsibility to federally recognized tribes. We agree that this rule
affects tribes and we actively encouraged tribes to participate in our rulemaking. We
conducted outreach and information sharing with tribal environmental staff through the
monthly National Tribal Air Association calls, presentations at the National Tribal
Forum, and a webinar, on the content of the proposal, targeting tribal environmental
professionals. In addition, we sent letters to all tribal leaders and offered consultation on
the rule, prior to proposal and after the proposal, to ensure tribes had the opportunity to
participate in the process. As mentioned before, in recognition of concerns raised by
several tribes, and in order to help us better understand their concerns, we also
participated in a face-to-face meeting with tribes in Arizona who were concerned about
the potential impact of this rule on their income and water rights. Following that meeting,
we held an additional technical meeting on how Integrated Planning Modeling (IPM) is
used in the Regulatory Impact Analysis (RIA) and provided one-on-one consultation with
The Navajo Nation, Gila River Indian Community, The Hopi Tribe, and the Ak-Chin
Indian Community. Thus, we disagree with your statements that we did not undertake
any formal consultation, particularly since senior-level EPA officials were involved in the
meetings. We would like to clarify that the generic letter to tribal governments to which
one commenter referred to was not intended to be "the consultation" but, rather, it offered
consultation.
Comment 2: Modeling of NGS: You expressed concern with our presumption in the
rulemaking that the Navajo Generating Station (NGS) will close in 2015, citing the RIA where
we presumed that two of the three units would retire with or without implementation of the
Utility Maximum Achievable Control Technology (MACT) standards and the third would be
forced to retire as a result of the economic and regulatory burdens imposed by the proposed rule.
You believed these assumptions are in contrast to prior statements by the EPA regarding the
facility during the Best Available Retrofit Technology (BART) rulemaking. You also believed
we should address the catastrophic impacts that the Utility MACT will have on Arizona tribes
and reconcile these opposed positions.
EPA Response: In order to address questions about purported conclusions in some of
EPA's regulatory documents, EPA held a technical meeting on how the Integrated
Planning Modeling (IPM) is used in the Regulatory Impact Analysis (RIA) and how it
Gila River Indian Community - Comments on MATS Rule
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A-16. EPA RESPONSE LETTER TO TRIBE (continued]
was specifically used in this rulemaking. We pointed out that IPM is used to analyze the
power sector's cost-minimizing response to meet electricity demand with MATS in place.
The IPM modeling and projections are intended to be a reflection of possible compliance
using specific tools, assumptions, and methodologies that the agency believes reflect the
best and most current information related to the power sector. But, it is necessarily at a
level that cannot reasonably reflect actual compliance decisions, since those will be made
individually by the affected industry based on what makes the most sense using existing
technologies or other, more cost-effective strategies and considering a variety of other
factors specific to the facility. Thus, our IPM analysis of MATS does not dictate what a
given facility must do to comply with MATS. Each facility may determine its own
compliance strategy to meet the emission rate limits in MATS. There are many specific
considerations from NGS that EPA's model would not, and could not, take into account.
We will work with NGS and other affected parties to ensure a smooth transition with this
rule and address specific issues as they arise. We would point out that changes in the final
rule are significant and will reduce costs, increase flexibility and alleviate industry
concerns about achievability of standards.
Comment 3: Different Treatment of NGS in the Rulemaking: You discussed numerous
considerations regarding NGS, suggesting it should be treated differently from other generating
units because it is a unique facility with a significant federal purpose. You noted that NGS
powers the delivery of water, a trust resource, to fulfill the mandate of eight Congressionally-
approved Indian water rights settlements, to Native American communities and provides jobs
both directly and through the associated coal mine.
EPA Response: As discussed above, we are sensitive to your concerns and intend to
work with tribal and other authorities to ensure a smooth transition and address specific
issues as they arise. However, we note that section 112 of the CAA imposes specific
requirements with respect to the methodology we must use in establishing emission
standards for Hazardous Air Pollutants (HAPs), including Mercury emissions from
EGUs. You suggested treating NGS differently from other generating facilities, and we
interpret this comment at least in part as a request for a subcategory for NGS. Pursuant to
CAA section 112(d)(1), we may subcategorize sources based on differences in class,
type, or size. In the preamble to the proposed rule, we further explained that any basis for
subcategorizing (e.g. class) must be related to an effect on emissions, rather than some
difference which does not affect emissions performance. We do not agree that a
subcategory based on location on tribal lands is consistent with the statutory authority to
subcategorize, and the commenter does not explain why emissions would be different for
EGUs located on tribal lands. Absent that showing, it would not be appropriate to
subcategorize units even if we believed such a subcategory was consistent with the
statute; however, the methodology for determining emission standards under CAA
section 112 does not result in requirements that specify the means of complying with
standards. Thus, affected sources make their own determination regarding how they will
comply with the standards. We believe that flexible and achievable pollution control
requirements are promoted in the final rule through inclusion of alternative standards,
alternative compliance options, and emissions averaging as a means of demonstrating
compliance with the standards for existing EGUs.
Gila River Indian Community - Comments on MATS Rule
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A-17. KEY TERMS AND CONCEPTS
Authorized Inter-Tribal Organization
An "authorized inter-tribal organization" is an organization that has been officially designated by the
elected or duly-appointed leaders of federally recognized tribal governments to represent them on a
particular issue.
Consultation
"Consultation" is a process of meaningful communication between EPA decision-makers and elected or
duly appointed tribal leaders (or their authorized representatives) prior to the EPA taking actions or
implementing decisions that may affect tribes. Consultation is government-to-government, whereas
identification and coordination can be with communities, environmental staff, and others.
Environmental Justice
Environmental Justice (EJ) is the fair treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the development, implementation and enforcement
of environmental laws, regulations and policies.
Federally Recognized Indian Tribe
A "federally recognized Indian tribe" is an entity that appears on the list of federally recognized tribes
published annually by the Bureau of Indian Affairs (BIA), Department of the Interior (DOI). The
Federally Recognized Indian Tribe List Act of 1994, which requires publication of this list, defines
"[t]he term 'Indian tribe' [to] mean any Indian or Alaska Native tribe, band, nation, pueblo, village or
community that the Secretary of the Interior acknowledges to exist as an Indian tribe." 25 U.S.C. §479a.
Inclusion on the list of federally recognized tribes entitles a tribe to special services and benefits. Federal
recognition is typically a requirement to be eligible for federal aid or funding.
Federal Indian Law
"Federal Indian Law" refers to the body of law that defines the legal relationship between the United
States and the Indian tribes, including federally recognized Alaska Native entities.
Federal Indian Trust Responsibility
The federal government has a "trust responsibility" to federally recognized Indian tribes that arises from
treaties, statutes, executive orders, and the historical relations between the United States and Indian
tribes. Like other federal agencies, the EPA acts in accordance with the trust responsibility - which
generally includes consulting with and considering the interests of tribes - when taking actions that may
affect tribes or their resources.
Government-to-Government Relationship
The relationship between federally recognized Indian tribal governments and the federal government is a
unique one. Indian tribes possess an inherent sovereignty over their members and territories. Agency
officials interact with tribal officials as representatives of their government. The EPA consults - on a
government-to-government basis - with federally recognized tribes.
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A-17. KEY TERMS AND CONCEPTS (con tin ued)
Indian Country
This term, defined by federal statute at 18 U.S.C. § 1151, means: a) all land within the limits of any
Indian reservation41 under the jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way 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 a state, and c) all Indian
allotments, the Indian titles to which have not been extinguished, including rights-of-way running
through the same. Tribal land issues can be quite complicated; therefore, you should talk to the EPA
Regional Indian Program representatives, Regional Counsel, or the Office of General Counsel for more
in-depth information.
Sovereignty
"Sovereignty" is the authority that a government draws upon to govern. In the United States, tribes
retain important aspects of sovereignty and authority over their members and territory.
Treaties
Through treaties, Indian nations ceded certain lands and rights to the United States and reserved certain
lands ("reservations") and rights for themselves. In many treaties, tribal governments reserved hunting,
fishing, and gathering rights in territories beyond the land that they reserved for occupation.
Tribal Air Coordinator (TAC)
Each regional office has a tribal air coordinator that participates in monthly conference calls organized
by the sub-lead EPA region for tribal air issues. These regional contacts are familiar with tribal issues
specific to the tribes in their region and can serve as a good resource in early planning efforts and
follow-up consultation.
Tribal Authority Rule
The "Tribal Authority Rule" refers to the EPA regulation that implements the provisions of the Clean
Air Act that authorize eligible tribes to implement tribal air quality programs under the Clean Air Act in
a manner similar to states.42
Tribal Consultation Advisors
Tribal Consultation Advisors (TCAs) assist in identifying matters appropriate for consultation and
prepare summary information on consultation activities and provide it to AIEO. TCAs receive and
provide advice within their respective program offices and regions on what actions and/or decisions may
be appropriate for consultation. TCAs also serve as a point-of-contact for the EPA staff, tribal
governments, and other parties interested in the consultation and coordination process. TCAs are the in-
office subject matter experts to assist staff and management in the implementation of the Policy.
41 The EPA's definition of "reservation" encompasses both formal reservations and "informal" reservations, i.e.. trust lands set aside for Indian tribes. See for
example Oklahoma Tax Comm'n v. Sac and Fox Nation. 508 U.S. 114. 123 (1993); 56 Fed. Reg. 64876. 64881 (1991); or 63 Fed. Reg. 7254. 7258 (1998).
42 The final Tribal Authority Rule was published at 63 Fed. Reg. 7254 (February 12, 1998). https://www.epa.gov/tribal-air/tribal-authoritv-rule-tar-under-
clean-air-act
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A-17. KEY TERMS AND CONCEPTS (con tin ued)
Tribal Ecological Knowledge (TEK)
Traditional ecological knowledge describes aboriginal, indigenous, or other forms of traditional
knowledges regarding sustainability of local resources. TEK refers to a "cumulative body of knowledge,
belief, and practice, evolving by accumulation of TEK and handed down through generations through
traditional songs, stories and beliefs.
Tribal Environmental Professional (TEP)
Tribal Environmental Professionals are employed by the tribal government to work on environmental
issues.
Tribal Governments
Most tribes have their own governments, which are generally formed to suit the particular tribe's
practical, cultural, political, or religious needs. Many tribal government structures combine traditional
features with Western forms.
Tribal Implications
As defined by Executive Order 13175, "Policies that have tribal implications" refers to regulations,
legislative comments or proposed legislation, and other policy statements or actions that have substantial
direct effects on one or more Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities between the Federal Government and
Indian tribes."
Tribal Officials
"Tribal Officials" for the purpose of this policy means an elected or duly appointed official of Indian
tribal governments or their authorized representatives or authorized inter-tribal organizations. The EPA
generally recognizes an inter-tribal organization to be authorized to represent a tribal government after
receiving confirmation from an elected or duly-appointed tribal leader that the inter-tribal organization is
authorized to consult with the Agency on the tribe's behalf. Such confirmation should be provided in
writing.
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A-18. RELEVANT TRIBAL AND EPA ORGANIZATIONS
AIEO - The American Indian Environmental Office
The AIEO is part of the U.S. EPA. The AIEO, working with its regional components, coordinates the
Agency-wide effort to strengthen public health and environmental protection in Indian country and
oversees development and implementation of the Agency's Indian Policy and Consultation Policy.
www.epa.gov/indian
BIA - Bureau of Indian Affairs
The BIA is an agency of the federal government of the United States within the U.S. Department of the
Interior. It is responsible for the administration and management of 55,700,000 acres (225,000 km) of
land held in trust by the United States for Native Americans in the United States, Native American
Tribes and Alaska Natives, https://www.bia.gov/
ITCA - Inter Tribal Council of Arizona
The Inter Tribal Council of Arizona, Inc. is a non-profit 501(c)(3) corporation that administers
over 20 federal, state and private grants and contracts in a variety of areas including health, research,
and environmental quality. The membership of ITCA consists of twenty of the federally recognized
tribes in Arizona. ITCA coordinates meetings and conferences to facilitate participation of tribal leaders
and other tribal staff in the formulation of public policy at all levels, http://itcaonline.com/
ITEC - Inter-Tribal Environmental Council
The ITEC was formed in 1992 by the signing of a Memorandum of Understanding between 20
Oklahoma tribes and the EPA Region 6. Since that time other tribes have joined and the current
membership is 45. http://www.itecmembers.org/
ITEP - Institute for Tribal Environmental Professionals
The ITEP was created in 1992 to act as a catalyst among tribal governments, research and technical
resources at Northern Arizona University (NAU), in support of environmental protection of Native
American natural resources. ITEP serves tribes through outstanding, culturally-relevant education and
training that increase environmental capacity and strengthen sovereignty, http://www7.nau.edu/itep/
NCAI - National Congress of American Indians
Founded in 1944, NCAI is the oldest, largest, and most representative American Indian and Alaska
Native organization that serves to develop consensus on national priority issues that impact tribal
sovereignty, http://www.ncai.org/
NTAA - National Tribal Air Association
Since its founding in 2002, the National Tribal Air Association has been a leading voice for tribal air
quality issues, programs, and policies. With 122 principal member tribes to date, the NTAA's mission is
to advance air quality management and policies and programs, consistent with the needs, interests, and
unique legal status of American Indian Tribes and Alaskan Natives. Administration of the NTAA is
vested in the Executive Committee consisting of ten (10) tribal representatives, one from each of the
USEPA Regions, plus one from Alaska. The officers include the Chairperson, Vice-Chairperson,
Secretary and Treasurer, http://www7.nau.edu/itep/main/ntaa/
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A-18. RELEVANT TRIBAL AND EPA ORGANIZATIONS (continued)
NTC - National Tribal Caucus
The NTC is a national body of high-level tribal advisors. Members are selected on a regional basis by
each Regional Tribal Operations Committee (RTOC) or its equivalent, and represent all tribes within
their regions. Their primary focus is to identify and address tribal environmental issues that are national
in scope, cross-agency or cross-media in nature, or that may be emerging or urgent. The EPA also
interacts with tribes through other tribal partnership groups include the NTAA, the National Water
Council, the National Tribal Science Council, the National Tribal Science Council, Tribal Pesticide
Program Council, Tribal Waste and Response Assistance Program, National Tribal Toxics Committee,
Exchange Network Tribal Governance Group, and the NEJAC Indigenous People's Subcommittee.
https://www.epa.gov/tribal/national-tribal-caucus
NTOC - National Tribal Operations Committee
The NTOC was established in February 1994 in order to improve communication and build stronger
partnerships between the tribes and the EPA. NTOC is comprised of 19 tribal leaders or their
environmental program managers (the National Tribal Caucus) and the EPA's Senior Leadership Team,
including the Administrator, the Deputy Administrator, and the Agency's Assistant and Regional
Administrators, https://www.epa.gov/tribal/tribal-partnership-groups
NTSC - National Tribal Science Council
The National EPA-Tribal Science Council (NTSC) was created in partnership with tribal representatives
to help integrate agency and tribal interests, specifically with respect to environmental science issues.
The NTSC provides a forum for tribes and EPA to identify priority environmental science issues and
collaboratively design effective solutions. The Council seeks to increase tribal involvement in EPA's
scientific activities - building bridges between tribal and agency programs.
https://www.epa.gov/research-grants/tribal-science-council
RTOC - Regional Tribal Operations Committee
The RTOC is the regional counterpart to the National Tribal Operations Committee (NTOC) and does
not replace direct tribal-to-EPA relationships. The RTOC recognizes and respects the existing tribal
jurisdiction, cultural, political and social continuity of tribes. Federally recognized tribes reside in all of
the agency's 10 regions. Each of these 10 regions has appointed a Regional Indian Coordinator (RIC),
and some of the regions have established an Indian program office. Some regions have a formal RTOC
comprised of tribes residing within that region. Examples: https://www.epa.gov/tribal/region-9-regional-
tribal-operations-committee; https://www.epa.gov/tribal/region-10-tribal-operations-committee-rtoc-
members
TAMS - Tribal Air Monitoring Support Center
The TAMS Center was created in 1999 through a partnership between tribes, the Institute for Tribal
Environmental Professionals (ITEP) and the EPA. It is the first technical training center designed
specifically to meet the needs of tribes involved in air quality management and offers an array of
training and support services to tribal air professionals, http://www7.nau.edu/itep/main/tams/
END OF DOCUMENT
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