MAY 2012: THIS POLICY IS CURRENTLY BEING UPDATED.
The Office of Air Quality Planning and Standards
Consulting
With
Indian Tribal
Governments
f
April 10, 2009
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Disclaimer
This document is intended solely for guiding employees of the United States Environmental
Protection Agency (EPA) Office of Air Quality Planning and Standards (OAQPS). This
guidance is not a regulation and does not create any legal obligations or any right or trust
responsibility. This document does not address the requirements of, or procedures called for by,
Executive Order (EO) 13175, 65 Fed Reg. 67249 (November 9, 2000). Any EPA approach to
implementing EO 13175 will be set forth in a separate document. This document refers to
consultation with federally-recognized Indian tribes that OAQPS undertakes generally, as a
matter of policy. This document may be updated as appropriate without notice.
The OAQPS primary contact for all issues relating to tribes is the Community and Tribal
Programs Group (CTPG) located in the Outreach and Information Division (OID). In addition,
there is a cross-divisional OAQPS Tribal team comprised of representatives from the various
divisions who can be a resource to you. This document provides OAQPS staff guidance on
consulting with federally-recognized tribes; however, it is important that you contact CTPG, or
your division tribal representative, early in the process of addressing issues relating to tribes for
additional guidance and assistance.
OAQPS Tribal Program Primary Contact
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TABLE OF CONTENTS
Introduction page 4
Why develop guidance for OAQPS?
What is the difference between tribal collaboration or outreach and consultation?
Background page 6
The Federal Government-Indian Tribal Relationship
Protocol for EPA Interactions with Tribes
Section I - Screening page 7
What does "impacts or effects on tribes" really mean?
How do I determine if there are impacts or effects on tribes?
Section II- Collaboration and Outreach page 11
Collaboration and Outreach
General Recommendations
Steps for Effective Outreach or Collaboration
Section in - Consultation page 12
Formal (or Full) Consultation
Recommendations for Developing Tribal Consultation Plans
Steps to Effective Consultation
Appendix page 17
Key Terms and Concepts
Tribal Organizations
EPA Tribal Air Program Contacts
OAQPS Tribal Representatives
Sample OAQPS Impacts or Effects on Tribes Form
Example Tribal Outreach/Collaboration Strategy
Sample Consultation Letter
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Introduction
Why develop guidance for OAOPS?
This guidance describes OAQPS' views regarding tribal consultation and will help assist
OAQPS personnel in reviewing EPA actions for effects on tribes and consulting with tribes.
Early and meaningful tribal involvement is consistent with the federal trust responsibility to
federally-recognized tribes and furthers the Agency's overall goal of protecting human health
and the environment.
This document introduces OAQPS staff and managers to the basics of government-to-
government consultation with American Indian governments within the context of the work
performed in OAQPS. It provides a roadmap for analyzing whether OAQPS actions may impact
or affect tribes and if so, how to proceed. For the purpose of this document, the term "action"
refers to any policy, guidance, or regulation developed by OAQPS. This can include actions
such as the area source regulations, National Ambient Air Quality Standards (NAAQS)
promulgations, program implementation, and guidance development.
This guidance is divided into three sections - screening, collaboration and outreach, and
consultation. The first section, screening, describes how to identify impacts or effects your
action may have on tribes. The second section, collaboration and outreach, discusses how to
provide information to tribes and, if appropriate, how to get them involved in the action
development process. The third section, consultation, discusses how to consult effectively with
tribes.
What is the difference between tribal collaboration or outreach and consultation?
It is important to note the difference between "collaboration and outreach" and
"consultation." Collaboration and outreach are generally conducted with tribal environmental
professionals (although other tribal personnel or tribal officials may be involved) in advance of
policy, guidance, or rulemaking in which we think tribes will have an interest. The purpose of
collaboration and outreach is, among other tilings, to assist OAQPS in assessing whether a
particular action may have effects on tribes, making consultation with elected or duly appointed
tribal leaders appropriate. For purposes of this Policy, consultation generally involves meetings
or discussions with elected or duly appointed tribal leaders or some other, more formal
opportunities for those leaders or their authorized representatives to interact with EPA decision-
makers about the action, potential effects on tribes, and options to take such effects into account.
While consultation occurs with tribal (elected or duly appointed) leaders or their authorized
representatives, EPA routinely conducts a wide variety of interactions with tribes (including with
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non-elected leaders, environmental professionals, etc.) in conjunction with the consultation
process. Consultation should generally occur as early as possible and before an action is
proposed. OAQPS generally sends a letter to tribal leaders with brief information in plain
language describing the action and offering the tribal leaders the opportunity for consultation.
See Appendix for a sample consultation letter. The OAQPS Community and Tribal Programs
Group (CTPG) is your primary contact, along with the OAQPS tribal team member(s) for your
division, for helping to decide the most appropriate method for consulting with tribes and
obtaining tribal views.
WITH WHOM
FOR WHAT
HOW
WHEN
What is the relationship between this consultation document and Executive Order 13175?
There is a separate process being undertaken within EPA to develop guidance implementing EO
13175 - "Consultation and Coordination with Indian Tribal Governments". Staff should consult
any materials that result from this EPA process or consult with the OAQPS CTPG staff for
further guidance. Compliance with EO 13175 may raise different issues than those covered in
this document. As a result, if final Agency guidance is released, we intend to consider if this
OAQPS guidance document should be revised. EPA's American Indian Environmental Office
(AIEO) can provide additional information regarding compliance with EO 13175.
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Background
The interactions between OAQPS 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. Indian tribes retain
important sovereign powers over their members and their territory. In light of tribal sovereignty
and other principles of federal Indian law, states and local governments are generally precluded
from exercising jurisdiction in Indian country.1 This means that as a sovereign government, each
tribal government generally sets its own priorities and goals for its membership and territory,
including those for environmental protection. Thus, tribal sovereign governments generally have
an interest in environmental protection issues, including air quality issues, affecting their
members and territory.
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 inherent powers of self-governance.2 This relationship provides a framework
for interacting with tribes as partners to address issues of mutual concern. EPA has significant
experience across the Agency working and consulting with tribes on a government-to-
government basis.
The Federal Trust Responsibility
The trust responsibility helps us understand why we interact with tribes. The federal government
has a trust responsibility to federally-recognized tribes. Like other federal agencies, EPA acts in
accordance with that trust responsibility when taking actions that affect tribes.
This responsibility includes consulting with tribes and considering their interests when taking
actions that may affect tribes or their resources. In EPA's landmark 1984 Indian Policy, the
Agency stated that the keynote of 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 insure the close involvement of Tribal Governments in making decisions and
managing environmental programs affecting reservation lands."3 Similarly, in a 1994
1 Indian country is defined at 18 U.S.C. § 1151 as: "fa) 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."
2 EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984
3 EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984
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memorandum, the President directed all federal agencies to assess the impacts of their plans,
projects, programs, and activities on tribal trust resources, 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 that affect them.4
Considerations for EPA Interactions with Tribes
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, there are
general considerations and guidelines to help staff to approach all tribes with appropriate respect
and sincerity. It is recommended that all staff take the OAQPS training entitled, "Working
Effectively with Tribal Governments" to gain a better understanding of relevant federal law,
Indian programs and government, and Indian culture. An online course is available through the
EPA American Indian Environmental Office (AIEO) at
http://intranet.epa. gov/oppts/training/tribal/EPA/mainmenu/launchPage.htm.
Below are key considerations:
> Every tribe is culturally unique. You should respect each tribe's cultural concerns.
> The perception of encroachment on tribal sovereignty is one of the most significant issues for
tribes today. 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 tribal
head is not always the decision-maker. You should learn the system of government used by
a specific tribe before initiating contact. The OAQPS CTPG and the appropriate Regional
Office can assist you with this.
> While environmental issues are a concern of most tribes, many tribes have limited familiarity
with environmental issues. They have to focus on many issues such as poverty,
unemployment, education, and health issues.
> There may be only one or a few tribal environmental professionals working on all
environmental issues for a tribe. Therefore, any apparent lack of interest in a particular
matter may, in reality, result from limited time and resources.
> One size does not fit all. Appropriate consultation may be different for each tribe; so it is
important that the program lead 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
toward building a fruitful, professional relationship. The OAQPS CTPG can help since they
have already developed relationships with many tribes.
4 Memorandum: Government-to-Government Relations with Native American Tribal Governments, April 29, 1994
(59 Fed. Reg. 22951)
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Section I - Screening
The screening phase is designed to help assess whether your action may have any impacts or
effects on tribes. This section defines what "impacts or effects on tribes" are; provides questions
to help you assess if there are potential impacts or effects; and then, if appropriate, recommends
how to proceed into the "collaboration and outreach" and "formal consultation" phases.
What does "impacts or effects on tribes" really mean?
Such effects may include ecological, cultural, human health, economic, or social impacts. This
includes any actions that may have an impact on tribal natural resources and trust lands; an
impact on treaty rights applicable to lands outside reservation boundaries; or an impact on the
authority or resources of tribal governments.
How do I assess whether there are impacts or effects on tribes?
To help assess whether there are impacts or effects on tribes there are a few questions you, the
policy, guidance or rule writer, should answer. To assist you, these questions can be answered
on an Impacts or Effects on Tribes Form. If you can answer YES to any of the following
questions, then your action likely has potential impacts or effects on tribes and more analysis
should be done to consider appropriate means to involve tribes in the process. In addition, if
there are potential effects or impacts on tribes a Tribal Consultation Plan should be developed.
The OAQPS CTPG or your division tribal team representative can assist you with this form.
(See example Impacts or Effects on Tribes Form and Tribal Consultation Plan in Appendix.)
The Impacts or Effects on Tribes Form includes these questions:
o Are there effects on:
o tribal governments, communities, cultures and/or their ability to self-govern
o trust resources
o treaty or other tribal rights
o Does this action affect Indian country or is it close enough to potentially affect Indian
country (e.g., transport issues)?
o Does this action establish new federal standards or significant policy or guidance?
o Does this action establish a regulation not required by statute that may affect tribes or
their rights or resources or propose a regulation which pre-empts tribal law?
If you cannot clearly answer NO to all of the questions listed above, then you should begin
thinking about how to proceed with tribal outreach. You should contact the OAQPS CTPG, or
your OAQPS division tribal team representative. Together, you will assess whether there are
potential impacts or effects on tribes and if so, how to effectively collaborate and consult with
affected tribes. There also may be situations when a tribe requests an opportunity to consult
even if there are no clear impacts or effects on tribes. In this case, you should have discussions
with the tribe regarding the action. The OAQPS CTPG can provide supplemental information to
assist you with the specific steps of the process and to initiate appropriate tribal contact.
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The following flow chart can be used to further assist you in determining if there are impacts or
effects on tribes:
Incorporating Tribal Considerations into
OAQPS Actions
The chart on the next page is for those actions which have been designated as either Tier 1 or
Tier 2 rules under the Agency's Action Development Process (ADP). There is a greater
possibility that rules designated as Tier 1 or Tier 2 may have tribal impacts or effects. 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 for OAQPS rules. This is not intended to amend or alter the Agency's official
ADP. Rather, the additional information is designed to provide separate guidance for OAQPS
staff to assist in the consideration of effects on, and outreach to, tribes in the context of relevant
OAQPS actions.
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Incorporating Tribal Considerations into Tier 1 and 2 Actions under the ADP
1. Statute, court
order, Presidential
Initiative, or
Administrator's
priority as cause fa
taking a regulatory
related action
1A. Addressing
an identified
tribal issue could
also serve as a
reason to take
an action.
2. Tiering: Lead program gives tiering
fcrm (AIF) with recommended tier
level to Regulatory Management
Division for distribution to the
Regulatory Steering Committee.
3. Workgroup
prepares
Preliminary
Analytical
Blueprint.
2A. AEIO reviews AIF
fcr potential tribal issues.
2B. If there are potential
effects, lead should
notify OAQPS CTPG.
X
3A. Complete an initial screen. If there
are potential effects, notify CTPG then
identify issues, data gathering needs,
and analyses that should be
undertaken fcr refined analysis. If no
potential effects, rule writer does not
address Tribal consideration until step
9 (preamble development), unless
unexpected issues arise.
5. Workgroup prepares
Detailed Analytic Blueprint
(DABP). It is a workgroup's
plan for developing analysis
and outreach on scientific,
economic, and legal issues,
stakeholder involvement;
and implementation,
enforcement, and
compliance assurance.
6.
Manage-
ment
approves
DAPB
4A. Managers ask if there
jre tribal issues. If there are
issues, ask how these
issues will be addressed.
Review information to be
gathered for refined tribal
issues analysis.
4B. AEIO/Tribal
coordinators participate in
Early Guidance Meetings.
5A. DABP addresses Tribal
issues, i.e., in public
involvement plan, key
analyses, information
gathered, options
considered, & in the
timeline.
n=
6A. Managers
look for how
tribal issues are
addressed in
DABP before
approving it.
5B. AEIO/Tribal
coordinators review DABP.
7. Workgroup undertakes analyses and
consultation required by other statutes and
EO's, (e.g., impacts on sM govts; small
businesses,children's health issues; etc.)
Workgroup develops regulatory options.
7A. Early input from Tribal enviro.
professionals., prepare data on results of
consultations/public involvement and data on
Tribal impacts and options, including options
to mitigate adverse effects, as appropriate.
7B. AIEO/Tribal coordinators ~
8A. AIEO/Tribal
coordinators
participate in
Options Selection
9. Workgroup prepares
preamble, rule/action and
supporting documents.
9A. Address EO 13175 in preamble, discuss
and document impact analysis. If applicable,
address public outreach, consider highlighting
tribal options fcr comment, and address
significant Tribal issues in action memo.
11. If rule is
"significant under EO
12866," OP El
reviews and submits
to OMB.
9B. As needed, consult with AIEO/Tribal
coordinators, offer formal consultation, &
conduct outresch with enviro. professionals.
10A. If action has Tribal
issues, include AIEO/Tribal
coordinators in FAR.
12. OMB Review:
OMB has 90 days to
review "significant"
rules.
13. Administrator cr
AARA signs.
13A. All Action Memos
describe what was done
to identify & address
Tribal issues.
14. EPA submits rule to the Office of
Federal Register for publication (1 week to
3 months depending on complexity and
length). E-Docket and Public Docket
opened.
15. Public comment period
(typically 60 days); public
hearing as applicable.
15A: If Tribal issues were identified address Tribal comments &
consider new options as appropriate. Consultation as appropriate.
16. Developing the final action.
(Process steps 4-14
are repeated.)
15B: If Tribal issues were raised in
comments, but EPA did not do an analysis,
notify AIEO/Tribal coordinator at end of
public comment period.
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Section II - Collaboration and Outreach
Collaboration and Outreach
If an OAQPS policy, guidance, or rulemaking action may affect tribes or if tribes are interested
in learning more, collaboration and outreach are important next steps. Collaboration and
outreach provide an opportunity for EPA to interact with tribal environmental professionals
(TEP) and tribal personnel on the potential impacts or effects. This is an opportunity for EPA to
talk with the TEPs to assist EPA in its assessment of whether to call for government-to-
government consultation. When an action is targeted directly toward tribes, has impacts or
effects on tribes or Indian country communities, or has broad tribal interest, OAQPS staff should
consult with the tribes. Outreach activities can be tailored to the specific needs of your action,
ranging from notification to the tribes via a listserve to establishing a formal work group. The
OAQPS CTPG can help you design the appropriate scope of interaction.
General Recommendations
o Identify Issues, Interests, and Impacts
o What are the issues?
o What are the critical time lines and events?
o Who is involved?
o Who has an interest?
o Who is potentially impacted?
o Involve Tribes Early in the Process
o The earlier the better.
o Carefully set up work groups5 to ensure needed expertise,
o Outreach schedules should reflect critical and appropriate points for interaction,
o Allow for a full range of opinions and interactions.
o Plan Strategies and Mechanisms
o Consider strategies about appropriate audience, method of communication, and
content.
o Involve EPA Regional Offices
o 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.
5 Meetings with outside organizations may be subject to the Federal Advisory Committee Act (FACA). Consult your
Office of General attorney to determine whether FACA applies to your meeting.
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Steps for Effective Collaboration and Outreach
1. Identify which tribes may be affected.
a. Initiate discussions with OAQPS CTPG, division tribal team representative, and
appropriate EPA Regional Office Tribal Air Coordinators.
b. Identify type of tribal government and appropriate tribal contacts.
c. Identify special tribal considerations and protocols (e.g., subsistence seasons) for
those tribes.
2. Write a fact sheet in plain English.
a. Describe the action being considered (i.e., policy, guidance, rulemaking).
b. Describe how the action may impact or affect tribal governments.
c. Include information on how to contact you and receive additional information.
3. Notify tribal environmental professionals.
a. Work with the OAQPS CTPG and the EPA Regional Office where the tribe is
located to develop an outreach/communication strategy.
b. Notify all affected tribal governments at an early stage by disseminating early
information to tribal officials on action development. In addition to sending out
the fact sheet described above, you can also send out a listserv or Tribal Air
Website message with EPA contact's address, participate in National Tribal Air
Association (NTAA) monthly calls, work with National Tribal Environmental
Council (NTEC) and EPA Regional tribal contacts, and send information to
Regional Tribal Operations Committee (RTOC) contacts.
4. Consultation with tribal leaders where appropriate.
a. If consultation is called for, please proceed to Section III of this document,
Consultation, for more information on how to proceed. If not, continue
coordination through updates and consideration of input from TEPs and other
tribal personnel at an appropriate degree of specificity.
Section III - Consultation
Formal (or Full) Consultation
Consultation is built upon the exchange of ideas, not simply providing information, and is
generally not a one-time event, but an ongoing process. Consultation is called for, among other
potential actions, any policy, guidance, or rule that is 1) targeted directly toward tribes; 2) has
impacts or effects on tribes or Indian country communities; or 3) has broad tribal interest.
Examples include the Tribal Authority Rule, New Source Review Rule for Indian Country,
Mercury Maximum Achievable Control Technology Standards for Utilities, Landfill Maximum
Achievable Control Technology Standards, Tribal Implementation Plan Guideline, and Rules for
Implementing New National Ambient Air Quality Standards. While EPA Headquarters (i.e.,
OAQPS) consults on its actions, staff should work closely with the EPA Regional Offices.
Formal consultations, including any letters sent to tribes, are initiated by the OAQPS Division
Director level or higher.
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Earlier it was stated that OAQPS staff should contact TEPs to assist in assessing whether
consultation is called for in advance of any action for which we think tribes will have an interest.
If after doing that, we find that a few TEPs are interested or concerned about an action and
OAQPS believes that tribes would be affected, OAQPS would generally send a letter to tribal
leaders of those potentially affected tribes, providing an overview of the action and offering an
opportunity for consultation. This action should be taken prior to proposing the rule. Early
communication is important. The goal is to have a dialogue between informed tribal leaders, or
their authorized representatives, and federal officials to help OAQPS appropriately consider
tribal views in developing and finalizing the federal action.
Recommendations for Developing Tribal Consultation Plans
The outreach/community strategy completed in Section II as part of the collaboration and
outreach process, can now be used to develop a tribal consultation plan. This plan serves as the
road map for the formal consultation process. Below are issues to consider when developing
your plan. AIEO is the principal point of contact for coordinating the interaction of tribes and
other EPA offices and officials; however, your first point of contact is the OAQPS CTPG and
your division tribal representative.
Issues to Consider
o The Inter-governmental Stakeholders
o Who are the interested principal tribal government stakeholders likely to be
affected by this action?
o Are there tribal elected officials who have expressed interest in the action under
development?
o Which, if any, tribal environmental or technical agencies will administer the
action?
o What other tribal governmental entities will have to take action (e.g., pass
legislation, raise funds, be subject to requirements)?
o Are there any other tribal government agencies (e.g., economic development,
transportation, agriculture) likely to be affected or have an interest?
o Governmental Impacts
o What is known about costs and other implications of the action?
o Will the action impact different tribal entities to different degrees or in different
ways?
o Unique Impacts
o Will the action have disproportionate impacts on any tribes in a particular region
of the country?
o Will the action affect tribes in urban, rural, or other areas differently?
o How will outreach and consultation efforts be targeted and tailored in light of
these unique or disproportionate impacts?
o Will tribes be affected or be presented with unique compliance issues?
o What steps will be taken to notify tribes of the planned action and to secure their
participation?
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o Major Issues/Areas of Concern
o What information will tribal government officials need to help them understand
the potential implications of the proposed action and why they should (or may) be
interested?
o What issues are likely to be major concerns to the different tribal government
officials?
o What steps should be taken to identify additional issues?
o Tribal Participants
o Are tribal organizations such as NCAI, NTAA, NTEC, ITCA, ITCG (see
appendix for acronyms), and other consortia involved?
o What EPA organizations provide/offer tribal perspectives?
o How can EPA solicit tribal government views?
o How can other individual tribal officials interested in the rule be identified?
o How can EPA regional offices assist in securing their participation?
o Outreach/Collaboration Activities
o What outreach and collaboration efforts have already been undertaken?
o Are there tribes potentially interested that have not yet been informed about the
proposed action?
o What is the plan for disseminating information about the action?
o What kinds of information materials are needed?
o How can tribal government officials be involved in resolving issues and areas of
concern?
o How and when are tribal officials informed about the results of cost and other
impact analyses?
o Expertise Needed
o What kinds of expertise from tribal officials would be especially helpful in
designing this action? Examples include:
¦ Experts in particular technologies, industries, or scientific disciplines;
¦ Economists, lawyers, or policy analysts specializing in particular areas;
and
¦ Managers with expertise administering comparable programs at another
level of government.
o Schedule/Resources
o What is the schedule for key outreach and consultation activities?
o What resources - staff, extramural funds, or other resources - may be needed to
carry out the consultation plan?
o What assistance is needed from other EPA offices (e.g., Regions, Office of
General Counsel, Office of Policy, Economics, and Innovation, or the American
Indian Environmental Office)?
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Steps to Effective Consultation
1. Develop a Tribal Consultation Plan which serves as the road map for consulting with the
tribes.
a. Using the outreach/collaboration strategy developed in Section II, a consultation
plan can now be developed for the consultation phase.
b. Develop and send out consultation letters to leaders of affected tribes providing
them an opportunity to consult (see appendix for example consultation letter).
2. Continue discussions with OAQPS CTPG, OAQPS tribal division representative, and
EPA Regional Office Tribal Air Coordinators.
3. Communicate with Tribes.
a. Consult with tribes early in the process of developing the action(s).
i. In some cases, you may be working with only one or two tribes, and you
should be able to communicate and consult with them directly. In other
cases, where the action is less developed or there is greater tribal interest,
you may need to communicate with a much larger group. In addition to
one-on-one meetings, reaching a larger tribal audience can be
accomplished through national meetings and with the assistance of the
National Congress of American Indians and the National Tribal
Operations Committee.
b. Consider any responses received from the consultation letters sent out to the tribal
letters.
c. Explain to tribes how you intend to respond to the concerns they raised in the
consultation process and when you plan to get back to them.
4. Make available to the Office of Management and Budget (OMB), as appropriate,
information submitted by tribes.
a. As you move closer to finalizing your action, make available information
submitted by the tribes through the consultation and, as appropriate, information
submitted by TEPs or other tribal personnel through the outreach and
collaboration process to OMB.
b. Once you have determined the status of your action under Executive Order 13175,
you need to refer to Preamble Templates for Executive Order 13175:
Consultation and Coordination with Indian Tribal Governments at
http://intranet.epa.gov/adplibrarv/adp-templates/index.htm to determine the
appropriate template to use in your action.
c. If there are potential impacts (refer to page 8), contact the EPA American Indian
Environmental Office (AIEO), in the final stage of the action.
i. A Tribal Impact Summary Statement may have to be developed and in
return, a certification letter from the Director of AIEO, may have to be
submitted with the final action.
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5. Document the Consultation.
a. If consultation was conducted, briefly discuss in the relevant section of your rule
preamble or document background/summary: the consultation process, the tribal
concerns, and how you addressed these concerns or why you did not.
b. Ensure that all information is submitted to the docket for proper recordkeeping.
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Appendix
KEY TERMS & CONCEPTS
Authorized Inter-Tribal Organization
An "authorized inter-tribal organization" is an organization that has been officially designated by the
elected or duly-appointed leader of a federally recognized tribal government to represent that tribe on a
particular issue.
Consultation
Consultation generally consists of meaningful and timely communication between EPA officials and
elected or duly appointed tribal government officials or their authorized representatives in developing
Agency actions that affect tribes. Consultation means open sharing of information, the full expression of
tribal and EPA views, a commitment to consider tribal interests in decision-making, and respect for tribal
self-government and sovereignty. Consultation is different from input and interaction or collaboration
and outreach: consultation is government-to-government, whereas input and interaction or collaboration
and outreach can be with communities, environmental staff, and others.
Consultation versus Community Involvement
It is important to distinguish between government-to-government consultation and community
involvement activities. Community involvement typically involves members of the tribal community
directly and is normally separate from consultation or discussions with the tribal government.
Consultation occurs in addition to the public participation process.
Federal Indian Law
"Federal Indian Law" refers to the body of law that defines the unique relationship between the United
States and the Indian tribes, including federally-recognized Alaska Native entities. Federal Indian Law
addresses, among other things, tribal sovereignty, tribal treaty rights, and jurisdiction in Indian country.
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, 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-Govemment 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. Because
each Indian tribe is a sovereign government, EPA officials (and those from other federal agencies)
interact with tribal officials as representatives of their government. EPA consults - on a government-to-
government basis - with federally-recognized tribes.
Indian country
This term is defined by federal statute at 18 U.S.C. § 1151 to include all land within federal Indian
reservations, dependent Indian communities, and certain lands or allotments owned by Indians. Indian
country includes lands held in trust by the United States for the benefit of an Indian tribe that have not
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been formally designated as reservations. Tribal land issues can be quite complicated; therefore, you
should talk to EPA Regional Indian Program representatives. Regional Counsel, or the Office of General
Counsel for more in-depth information.
Indian Tribe
A federally recognized "Indian tribe" is an entity that appears on the list of federally recognized tribes
published by the U.S. Bureau of Indian Affairs (BIA) of the U.S. Department of the Interior (DOI). It is
generally a community of Indians who are ethnologically similar, but who as a community also exist in a
legal-political sense.
Indian tribal governments generally determine who is a member of an Indian tribe by ensuring that they
meet specific tribal membership criteria. Each tribe has its own laws and methods of determining
membership, but typically it is based on ancestry.
Multiple Tribes
More than one tribe could have interest in the same area. In this type of situation, EPA should offer to
consult with all affected tribes. In some cases, tribes may form a group to speak with one unified voice.
If this does not happen, EPA should continue to consult with all affected tribes.
Native Americans (also referred to as Indian. American Indian, and Alaska Native)
The terms "Native American," "American Indian," "Indian" and "Alaska Native" can be used in a very
broad sense to describe members of ethnically distinct groups of United States citizens who are
indigenous to North America. All of these terms are generally accepted, but it is preferable to use
individual tribal affiliation whenever possible.
Native Hawaiians
"Native Hawaiians" can be described as Native American because they are indigenous to their areas and
they are not descendents of European colonizers. The Native Hawaiian community generally has a
different relationship with the U.S. Government. You should consult your tribal legal and policy experts
for more information where issues regarding Native Hawaiians may be raised.
Reservations
"Indian reservations" are a subset of Indian country (see 18 U.S.C. § 1151). Reservations may have been
set aside from the public domain by an act of Congress, executive order, or treaty. The exterior
boundaries of reservations may include lands not owned by the tribe, including, but not limited to,
allotments and nonmember-owned fee lands.
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 Coordinators (TAG)
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 (see Contacts List in
appendix) 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.
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Tribal Area
"Tribal area" is a generic term adapted from concepts used by the U.S. Census Bureau to discuss where
Native Americans live. It includes American Indian reservations, Alaska Native Villages, and other
special types of areas that represent ongoing centers of tribal culture.
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. The final Tribal Authority Rule was published at 63 Fed. Reg. 7254
(February 12, 1998).
Tribal Consultation
See definition of "Consultation."
Tribal Environmental Professional (TEP)
"Tribal Environmental Professionals" are employed by the tribal government to work on environmental
issues. They cannot make decisions on behalf of the tribal governments but they are knowledgeable of
the day-to-day environmental concerns of the tribes and should be consulted with on a regular basis.
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. More traditional tribal governments may select political officials by
consensus with decisions based on family, clan, or religious law; while other tribal governments may use
a more democratic process to elect officials.
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.
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 EPA on the tribe's behalf. Such confirmation should be
provided in writing.
Trust Responsibility
See Federal Trust Responsibility.
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RELEVANT TRIBAL AND EPA ORGANIZATIONS
(referenced in this document)
AIEO — The American Indian Environmental Office
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. AIEO oversees development and
implementation of the Agency's Indian policy.
ITCA — Inter-Tribal Council of Arizona
ITCA provides a united effort to promote Indian self-reliance through public policy development.
ITEC - Inter-Tribal Environmental Council of Oklahoma
The ITEC was formed in 1992 by the signing of a Memorandum of Understanding between 20 Oklahoma tribes and
EPA Region 6. Since that time other tribes have joined and the current membership is 31.
NCAI — National Congress of American Indians
NCAI is a representative national Indian organization, serving more than three quarters of the American Indian and
Alaska Native population.
NTAA — National Tribal Air Association
NTAA's mission is to advance air quality management policies and programs, consistent with the needs, interests,
and unique legal status of American Indian Tribes, Alaska Natives and Native Hawaiians.
NTEC - National Tribal Environmental Council
NTEC was formed in 1992 and is a membership organization dedicated to working with and assisting tribes in the
protection and preservation of the reservation environment. NTEC is open to membership to federally-recognized
Indian tribes and currently has 182 member tribes.
NTOC — National Tribal Operations Committee
The NTOC was formed in February 1994 in order to improve communication and build stronger partnerships
between the tribes and EPA. NTOC comprises 19 tribal leaders or their environmental program managers (the
National Tribal Caucus) and EPA's Senior Leadership Team, including the Administrator, the Deputy
Administrator, and the Assistant and Regional Administrators.
RTOC — Regional Tribal Operations Committee
Federally-recognized tribes reside in nine of the Agency's 10 regions (Region 3 is the exception). Each of these
nine regions has appointed a Regional Indian Coordinator, and some of the regions have established an Indian
program office. Some regions have a formal Regional Tribal Operations Committee comprised of tribes residing
within that region.
TAMS - Tribal Air Monitoring Support Center
The TAMS Center is a partnership between OAR offices, OAQPS, and ORIA with support from NAU's Institute
for Tribal Environmental Professionals (ITEP). The mission of the TAMS Center is to develop the tribal
capacity to assess, understand, and prevent environmental impacts that adversely affect health, culture, and natural
resources.
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|epa tribal air program contacts]
Office of Air and Radiation
Darrel Harmon
Region 5
Region 9
202-564-7416
Benjamin Giwojna (MN)
Sara Bartholomew
h arm on. darrelfS), epa. gov
312-886-0247
415-947-4100
giwoina.beniamin(2),epa. gov
bartholomew. s ara(2),epa. gov
Office of Air Quality Planning
and Standards
Stephanie Cheaney (MI)
Maeve Foley
Laura McKelvey
312-886-3509
415-972-4105
919-541-5497
cheane v. stephaniefS.epa. gov
folev. maevefSiepa. gov
mckelvev. laurafaiepa. gov
Sharleen Getschmann (WI)
Stephanie Valentine
Office of Atmospheric Programs
312-353-3486
415-972-3014
Erika Wilson
getschmann.sharleen(S),epa. gov
valentine, stephaniefoiepa. gov
202-343-9113
wilson. erikafS),epa. gov
Region 6
Asia Yeary
Elizabeth Braziel (NM, TX)
415-972-3831
Office of Transportation & Air
214-665-6449
vearv. asiafS.epa.gov
Quality
braziel.elizabethfa!epa.gov
Elizabeth Etchells
Region 10
202-564-1686
Aunjanee Gautreaux
Mary Manous (Lead)
etchells. elizabeth(2),epa. gov
214-665-7127
206-553-1059
gautreaux. auni aneefSiepa.gov
manous .marvfSepa. gov
Region 1
Ida McDonnell
Region 7
Angel McCormack
617-918-1653
Heather Hamilton
206-553-1498
mcdonnell.idafaiepa.gov
913-551-7039
mccormack. angelfSepa.gov
h am i lton. he atherfS), epa. gov
Region 2
Debra Suzuki
Gavin Lau
Region 8
206-553-0985
212-637-3717
Alexis North (Lead)
suzuki. debrafS),epa. gov
lau. gavinfaiepa. gov
303-312-7005
north, alexis (aiepa. gov
Justin Spenillo
Region 4
206-553-6125
Brandi Jenkins
Claudia Smith
spenillo.justinfSepa. gov
404-562-9124
303-312-6520
i enkins .brandifaiepa. gov
sm ith.claudia(2),epa. gov
Gracy Danois
Kathleen Paser
404-562-9119
303-312-6526
danois. gracvfSiepa. gov
pas er.kathleenfoiepa. gov
Comment [tcl]: TCOLON- Being updated. This
list is outdated.
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OAQPS TRIBAL REPRESENTATIVES)
Office of Air Quality Planning and
Standards, Overall Representative
Laura McKelvey
919-541-5497
mckelvev. laura@epa. gov
Air Quality Assessment Division
Mike Papp
919-541-2408
papp.michael@epa. gov
Air Quality Policy Division
Tom Link
919-541-5456
link.tom@epa. gov
Jessica Montanez
919-541-3407
montanez .i essica@epa. gov
Health and Environmental Impacts Division
Christine Davis
919-541-1565
davis.christine@epa.gov
Outreach and Information Division
Lena "Vickey" Epps-Price
919-541-5573
epps-price.lena@epa.gov
Yvonne W. Johnson
919-541-3921
iohnson.wonnew@epa.gov
Tami Laplante
919-541-1915
laplante. tami@ epa. gov
Nancy Mayer
919-541-5390
maver.nancv@epa.gov
Melissa McCullough
919-541-5646
mccullough.melissa@epa.gov
Sector Policies and Programs Division
Charlene Spells
919-541-5255
spells.charlene@epa.gov
Comment [tc2]: TCOLON - Being Updated.
This list is outdated.
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SAMPLE
OAQPS IMPACTS OR EFFECTS ON TRIBES FORM
(to be used for OAQPS actions - regulation, policy, or guidance)
Name of Action:
Project Lead Name & Number:
Division & Group:
Action Stage (e.g., data gathering, pre-proposal, proposal, final, other)
Estimated date of next major action (e.g., proposal or final)
To determine if there are any potential impacts or effects on tribes, please address the
following questions: (If the answer is YES and more space is needed please explain on an
attached sheet.)
o Number and location of sources
o Pollutants addressed
o Are there effects on:
o tribal governments, communities, cultures and/or their ability to self-govern
o trust resources
o treaty or other tribal rights
o Does this action affect Indian country or is it closes enough to potentially affect Indian
country (e.g., transport issues)?
o Does this action establish new federal standards or significant policy or guidance?
o Does this action establish a regulation not required by statute that may affect tribes or
their rights or resources or propose a regulation which pre-empts tribal law?
Refer to the OAQPS Consulting with Indian Tribal Governments Guidance for more information.
Please submit completed form to your division tribal team representative or
OAQPS Outreach and Information Division, Community and Tribal Programs Group
(MD-C-304-03).
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EXAMPLE TRIBAL OUTREACH/COLLABORATION STRATEGY
in Action Development Process
Contact sub-lead EPA Region and give brief overview of action on monthly TAC
call
Meet with Tribal Environmental Professionals (TEP) on monthly NTAA calls,
RTOC and NTEC meetings or other tribal forum to present key concepts of the
action and get input on tribal impacts,
i. Work with OAQPS/CTPG to identify appropriate forum
ii. OAQPS/CTPG can help you communicate with the tribes and EPA
Regional tribal contacts 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 proposal. (Note:
Generally this is done with TEP staff, but if there are relevant tribal impacts or
interest, a formal opportunity for consultation with elected tribal officials or their
authorized representatives should take place.)
i. If consultation is called for, send letters to tribal leaders and key consortia
to provide an opportunity for consultation
1. Consultation letters should come from the division director or a
higher level
2. Copy TEP so they are aware of the letter
ii. Respond to tribal leaders as appropriate (Note: they may defer to
coordination with TEP.) If they request conference calls or face-to-face
meetings, we should work with the tribe to set those up as appropriate.
1. Note: the Regional Office can help with face-to-face meetings
2. If all agree, consultation may take place at a joint meeting which
includes Regional TOC.
Proposal of Action
Outreach to explain the content of the proposal and encourage input from the
tribes should be ongoing in the TAC calls, NTAA and NTEC calls, RTOC
meetings and other forums. Additional consultation with tribal leaders or their
authorized representatives should be conducted as appropriate.
Mechanisms for highlighting the proposal:
i. Tribal Air Newsletter
ii. Tribal Air Website at http://www.epa.gov/air/tribal/
iii. Tribal List serve
4) After Final Action
a. Outreach to explain the content of the final rule
b. Mechanisms for highlighting the final decision and identifying next steps:
i. Tribal Air Newsletter
ii. Tribal Air Website at http://www.epa.gov/air/tribal/
iii. Tribal List serve
1) Early
a.
3) Alter
a.
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(sample CONSULTATION LETTER6!
May 5, 2008
«FIRST» «LAST»
« TITLE »
« TRIBE_NAME »
«ADDRESS»
«CITY», «FULL_STATE» «ZIP»
«GreetiiigLiiie»:
Comment [tc3]: TCOLON: Being updated.
Tribal Contacts have changed, formatting, etc.
On May 1, 2008, the U.S. Environmental Protection Agency proposed to strengthen the
national ambient air quality standards (NAAQS) for lead. The purpose of this letter is to invite
you to consult on this proposal.
The proposed rule will establish new uniform national standards for lead in ambient air to
protect public health. EPA proposes to revise the level of the primary (health-based) standard to
within the range of 0.10 to 0.30 micrograms per cubic meter (|ig/m3), and to revise the
secondary (welfare-based) standard to be identical in all respects to the primary standard. The
proposed standards will significantly strengthen the standards of 1.5 |ig/m3 set in 1978.
In addition to proposing to change the level of the standard, EPA is also proposing to
improve the monitoring network and outlining an approach and timeline for implementing the
revisions to the lead standards. The proposed rule and accompanying materials, including maps
relating to current air quality and emissions of lead from stationary sources in the U.S., are
available on EPA's website at http://www.epa.gov/air/lead.
Though lead emissions have declined significantly in the U.S. following the permanent
phase-out of leaded gasoline, there are still a variety of lead sources in the U.S. and even small
amounts of lead in the air may pose a public health risk. Lead in the air can be inhaled or, after it
settles out of the air, can be ingested. It causes a variety of effects at low levels of exposure
including effects on the blood, central nervous system, cardiovascular system, kidneys, and
immune system. Children are particularly sensitive to the effects of lead. Exposures to low
levels of lead early in life are associated with effects on IQ, learning, memory, and behavior.
EPA does not believe the proposed rule will have adverse implications for Tribes because
it increases the level of environmental protection nationwide. 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 in the Federal
Register. EPA will also hold public hearings on June 12, 2008, in Baltimore, Maryland, and St.
6 While this sample was sent after proposal of the rule (which is a time when continuing tribal consultation may be
appropriate), tribal consultation should ideally begin earlier in the process and prior to proposal.
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Louis, Missouri. We will be available to discuss the proposed revisions in other settings as well,
such as during the next National Tribal Air Association/EPA joint conference call on air quality,
at the 2008 National Tribal Forum on Air Quality in June, and with Regional Tribal Operations
Committees. If you prefer to initiate a formal consultation with EPA on this rule, please contact
Laura McKelvey at (919) 541-5497 or Deirdre Murphy at (919) 541-0729.
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,
LydiaN. Wegman
Director
Health and Environmental Impacts Division
Office of Air Quality Planning and Standards
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