ERA Tribal Consultation Best Practices for
Air and Radiation Division Regulatory Actions
August 22,2021
U.S. EPA Region IX
-------
Table of Contents
I. Introduction 2
II. Background 3
Why we consult with tribes 3
When does consultation happen? 3
Progress on the key areas identified for improvement 3
III. Air and Radiation Division's Best Practices for Consultation 4
IV. Air and Radiation Division Planning Office's Best Practices 5
Planning Actions that Trigger Consultation 5
ARD Planning Office's Best Practices 6
V. Air and Radiation Permits Office's Best Practices 7
Permitting Actions that Trigger Consultation 7
Initial Outreach and Coordination 7
Notification and Consultation Offers 8
Draft Permit Development 8
VI. Air and Radiation Division Actions to Promote & Sustain Effective Consultation 8
Appendix A: Listening Sessions with Tribes 10
Background 10
Themes from Listening Sessions 10
Appendix B: Consultation Documents 12
1
-------
I. Introduction
Consultation is a process of meaningful communication and coordination between EPA and tribal
officials prior to EPA taking actions or implementing decisions that may affect tribes. EPA's policy is to
consult on a government-to-government basis with federally recognized tribal governments when EPA
actions and decisions may affect tribal interests.
The purpose of this document is to clearly state several best practices for consultation when Region 9's
Air and Radiation Division (ARD) takes a regulatory action required by the Clean Air Act (CAA) or actions
guided by EPA policy and/or guidance. ARD developed this document in response to concerns raised by
our tribal partners regarding past consultation practices. In response, ARD staff and management
convened four listening sessions with tribes in 2019 (September 5, October 8, October 17, and October
23) to specifically solicit feedback on ARD's consultation practices and collect suggestions for
improvement. ARD staff and management provided updates on our progress to improve our
consultation process and solicited additional feedback from tribes during sessions at the Winter and
Summer 2020 Regional Tribal Operations Committee (RTOC) meetings.
EPA Region 9 staff from ARD and the Office of Regional Counsel have consulted with EPA
Headquarters' program and legal staff and management, and researched consultation practices within
other regional EPA offices to guide changes to ARD's consultation process. Over the past year, ARD has
begun to incorporate many of these changes into our consultation process and this document reflects
these new best practices. 1
This document provides background information on EPA's consultation practices and focuses on five
key areas for improvement that were identified through the listening sessions, which guided the
development of this document. A more detailed account of tribal feedback is included in Appendix A.
The five key areas for improvement include:
Communication of impacts: ARD notifications should identify potential impacts of an action
and be written in a manner that is easily understood.
Advance notice: ARD should provide earlier notice of our rulemaking activities to tribes.
Communication with EPA Headquarters: ARD and Region 9, in general, should communicate
more effectively with EPA Headquarters on tribal issues.
Training: EPA staff should receive additional training on working with tribes.
Best practices: ARD should develop best practices for consultation and rulemaking and use
them consistently.
1 This document provides a non-binding description of the Region's approach to consultation to assist as a communication
tool to Region 9. It is not a regulation and is not intended to impose legally binding requirements on EPA or the public, nor
to create any right, benefit or responsibility, including any trust responsibility, when applied in particular situations. EPA
retains the discretion to adopt approaches that differ from this document where appropriate depending upon the specific
circumstances at issue. EPA reserves the right to change this approach at any time without public notice, as needed.
2
-------
This document incorporates many of the practices outlined in the regional document, "Region 9 Best
Practices forTribal Consultation and Treaty Rights" (2011), as well as additional information and best
practices specific to the types of Clean Air Act regulatory actions implemented by the Air & Radiation
Division. Additional consultation documents that ARD staff utilize for regulatory actions are listed in
Appendix B.
Though this document is not subject to consultation, we are seeking feedback from tribes on our
proposed best practices to refine or add to ARD's effort to provide meaningful consultation.
II. Background
Why we consult with tribes
Tribes are sovereign entities that exercise inherent sovereign powers over, among other things,
members and trust lands. The United States has a unique legal relationship with Indian tribal
governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders
and court decisions, and works with tribes on a government-to-government basis. EPA's consultation
responsibilities generally arise from this unique legal relationship, as set forth in Executive Order 13175
issued by President Clinton in 2000, and further described in EPA's 1984 Policy for the Administration
of Environmental Programs on Indian Reservations and the 2011 EPA Policy on Consultation and
Coordination with Indian Tribes. Tribal consultation may also be called for in the language of certain
statutes that may apply to some EPA actions (e.g., the National Historic Preservation Act, where
applicable).
When does consultation happen?
EPA consults on a government-to-government basis with federally recognized tribal governments when
EPA actions and decisions may affect tribal interests. Tribal officials may also request consultation with
EPA. Consultation should occur early enough to allow tribes the opportunity to provide meaningful input
that can be considered prior to EPA deciding whether, how, or when to act on the matter under
consideration. As proposals and options are developed, consultation and coordination should be continued,
to ensure that the overall range of options and decisions is shared and deliberated by all concerned parties,
including additions or amendments that occur later in the process. If a tribe requests consultation, even
when EPA did not initially determine that it may affect tribal interests, EPA generally provides it.
Progress on the key areas identified for improvement
ARD management has enhanced the existing review process to ensure that notifications to
tribes identify the potential impacts of an action or decision and are written to be easily
understood by the recipient.
The ARD Permits Office has begun sharing draft permits to tribes and permit applicants for their
review prior to the public comment period.
The ARD Planning Office, which reviews submittals associated with the implementation of the
National Ambient Air Quality Standards (NAAQS), is offering consultation earlier for specific
regulatory actions such as changing an area's classification.
3
-------
To strengthen our communication with EPA Headquarters, ARD's Tribal Air Coordinator
communicates regularly with Headquarters staff in order to share information that could
potentially affect tribes.
Regionally, ARD staff are working with the Tribal, Intergovernmental and Policy Division in EPA
Region 9 to update training on working with tribes for all Region 9 divisions. The training will
include a refresher session on the consultation process. "Working Effectively with Tribal
Governments" training is offered periodically; the most recent opportunity for Region 9
personnel to engage in this training was in September of 2020.
ARD's staff from the Planning and Permits Offices, in consultation with Region 9's Office of
Regional Counsel and ARD's Division Director, have developed the best practices outlined in this
document.
III. Air and Radiation Division's Best Practices for Consultation
This section provides best practices to be implemented throughout the Air and Radiation Division when
undertaking the Clean Air Act regulatory actions that are described in further detail in Section IV and
Section V of this document.
Consultation should occur early in the regulatory process and account for statutory and
regulatory deadlines, as well as allowing for a significant length of time for tribes to process the
information, inform tribal leaders, and respond to the Agency.
ARD staff will determine whether the individual tribe has a specific consultation policy by
visiting the R9 Consultation Resources SharePoint site. Individual consultation policies will be
reviewed to understand the tribe's preferences or constraints that the Region may be able to
accommodate.
All efforts will be made to ensure that contact information for tribes is updated and current.
All letters notifying tribes of an action that ARD is considering, and/or offering consultation,
should be written in a manner that can be easily understood, includes a summary of the action,
clearly communicates any regulatory deadline, and describes the impacts of that action. These
letters should be addressed to the tribal leader with a copy sent to the tribal Environmental
Director.
Within a week of sending the invitation, ARD staff should follow up on the offer to consult by
communicating by phone with the tribal Environmental Director or other appropriate tribal
representative to ensure the communication was received by the correct individuals, that the
material was understood, and answer any questions.
In general, EPA will provide at least 30 days from the date that the invitation is mailed/emailed
for tribes to respond indicating their interest in engaging. If specific circumstances require a
shorter period for a response, ARD staff will call and email the tribe's Environmental Director or
designated contact to notify them of the invitation and explain the planned action.
4
-------
If a tribe requests consultation, ARD staff will work with the tribal Environmental Director or
designated tribal contact to 1) schedule a consultation meeting at a mutually agreeable time
and 2) determine the appropriate representation for the tribe and EPA Region 9.
EPA representation for consultation often depends on the circumstances and/or status of the
issue. A consultation meeting is typically conducted by phone, video conference, or sometimes
in-person with a Division Director or designee within the management team depending on the
issue or level of representation from the tribe.
If multiple tribes are interested in the same matter, an informational conference call or group
meeting may be appropriate, if agreed upon by all interested tribes. Otherwise, consultation
will occur with tribes individually.
In advance of the consultation meeting, staff from EPA and the tribe will develop a draft
agenda. The ARD management official and designated tribal representative for the consultation
should review and agree on the agenda for the meeting.
At the close of a consultation meeting, EPA management officials and designated tribal
representative should discuss whether the meeting satisfied the tribe's expectations for
government-to-government consultation. If additional discussion is needed, those in
attendance should discuss plans for a follow-up meeting or other next steps.
After any consultation meeting, EPA staff will prepare a memo for the public rulemaking docket
to document and summarize the meeting. The memo may include the date, names and titles of
those in attendance, and a summary of the discussion, including any concerns raised during the
meeting.
Once consultation is complete, ARD management will send a close-out letter to document the
discussion and completion of the consultation process.
All offers of consultation will be entered into the EPA's Tribal Consultation Opportunities
Tracking System (TCOTS).
In addition to engaging in consultation with federally recognized tribes, ARD will strive to be
responsive to concerns of non-federally recognized tribes, individual tribal members, tribal
community-based/grassroots organizations and other indigenous stakeholders.
IV. Air and Radiation Division Planning Office's Best Practices
Planning Actions that Trigger Consultation
In accordance with EPA's tribal consultation policies and guidance, the Air Planning Office will offer
consultation to tribes in advance of a proposed rulemaking for actions that could affect the designation
or classification of an area subject to tribal jurisdiction, or alter the requirements of an implementation
plan applicable in an area subject to tribal jurisdiction.
Common actions include:
Initial designation of an area to attainment/unclassifiable, unclassified or nonattainment;
Redesignation of an attainment/unclassifiable or unclassifiable area to nonattainment;
5
-------
Redesignation of a nonattainment area to attainment and approval of a maintenance plan
under Clean Air Act (CAA) 107(d)(3);
Action on a request from a state for a voluntary reclassification under CAA 181(b)(3);
Action on a request from a state for reclassification under CAA section 188;
Reclassification resulting from a determination that an area did not attain by the attainment
date, for both multi-jurisdictional nonattainment areas that include tribal lands and
nonattainment areas comprised only of tribal lands;
Development of a Federal Implementation Plan (FIP) that would apply on tribal land or that
would apply to facilities on or near tribal land;
Action on a Tribal Implementation Plan (TIP).
In general, for regulatory actions on State Implementation Plan submittals for nonattainment areas
that include tribal land, but do not affect the designation or classification of the area and therefore
have no effect on permitting thresholds, ARD will notify the tribes within the area at the time the
proposed and final actions are signed, and again when the actions are published in the Federal
Register, and will consult with tribes, if requested.
ARD Planning Office's Best Practices
For initial designations of an area to attainment/unclassifiable, unclassified or nonattainment of
a new national ambient air quality standard (NAAQS), ARD will follow EPA's 2011 guidance on
tribal designations that suggests two offers of consultation during the designations process. The
first offer after establishment of the NAAQS but before recommendations are due, and the
second in a letter to tribes describing our proposed designation ("120-day letter"), which is sent
after reviewing tribal recommendations and before making a final designation determination.
For other rulemaking actions that affect a tribe's designation or classification, consultation will
be offered far enough in advance of a proposal that at least one initial consultation meeting or
call can be held prior to when the notice of proposed rulemaking is signed, which is prior to
publication of the notice in the Federal Register and the start of the public comment period.
For rulemaking actions that do not affect a tribe's designation or classification, and therefore
do not affect permitting thresholds, EPA will notify and/or offer consultation depending on the
type of action, at the time a notice of proposed rulemaking is signed, which is prior to
publication of the notice in the Federal Register and the start of the public comment period.
ARD Planning Office staff will respond promptly to any questions raised by the tribal contact
about the action under consideration or the consultation process.
Whenever possible, ARD will provide timelines for next steps and clearly communicate
statutory and regulatory deadlines.
6
-------
V. Air and Radiation Permits Office's Best Practices
Permitting Actions that Trigger Consultation
In accordance with EPA's tribal consultation policies and guidance, the Air Permits Office intends to
offer consultation to tribes in advance of proposing permits or actions that could affect a tribe.
Common actions include:
Air permit applications submitted to EPA for projects on tribal lands (including both tribally owned
and privately-owned projects);
Development of general permits. General permits are developed for a category of sources and are
an optional method for obtaining preconstruction permit approval;
Federal Implementation Plans (FIPs) related to new or revised air permitting programs on tribal
land. These are rulemaking actions that typically establish the requirements permit applicants
must meet to obtain a permit from EPA on tribal land. A FIP can be developed for a specific
project, a category of air pollution sources (e.g., a permit by rule for dry cleaners), or broadly
applicable to any owner or operator required to obtain an air permit (e.g., the Tribal Minor New
Source Review program);
Tribal Implementation Plans (TIPs) for air permitting programs. These are rulemaking actions EPA
undertakes to approve permitting programs submitted by tribes to implement their own air
permitting program in lieu of an EPA air permitting program;
EPA-issued air permits on state land when EPA is the air permitting authority and the project is
near tribal land.
Initial Outreach and Coordination
Permit applicants are not required to work with EPA prior to submitting their permit
applications, but it is strongly encouraged. We will provide as much information as we can to
tribes during the pre-application process.
Outreach should start early. For most actions, ARD staff will hold regularly scheduled calls with
the tribal Environmental Director or designated tribal contact at an agreed upon frequency in
order to optimize a tribe's ability to provide updates to the Tribal Council. ARD staff will invite
the designated tribal contact to conference calls with a permit applicant whenever necessary to
keep the tribe informed of developments regarding planned permitted activities.
ARD staff will update the designated tribal contact when EPA receives a permit application and
will let the tribal contact know when to expect a consultation invitation.
For actions that may affect multiple tribes (e.g., general permits and FIPs), ARD will seek
feedback on the best methods for outreach and seek input from tribes on the issues related to
the FlP/general permit that are of concern.
o EPA will provide updates during ARD sessions at RTOC to solicit the level of interest,
o Additional outreach through National Tribal Air Association (NTAA) or tribal conferences
may also be appropriate.
7
-------
Whenever possible, ARD will provide timelines for next steps and clearly communicate
statutory and regulatory deadlines.
Notification and Consultation Offers
For permit applications or permitting Tribal Implementation Plans (TIPs), ARD staff will send a
letter notifying the tribal Environmental Director or designated tribal contact of the project and
an include an offer of consultation within 15 business days of receipt of the application.
In general, for development of new general permits and permitting Federal Implementation
Plans (FIPs) we will offer consultation at least 90 days prior to the commencement of the public
comment period.
Draft Permit Development
ARD staff will ensure that the tribal Environmental Director or designated tribal contact is
informed of the process, even when consultation is not requested.
ARD staff will continue regularly scheduled calls and will share a timeline for draft permit
development with the tribe.
ARD will ensure that the tribal Environmental Director or designated tribal contact is copied on
communications with the permit applicant and invited to conference calls with the permit
applicant.
ARD will share appropriate materials with the tribe prior to public notice. A best practice is to
provide the draft permit to the tribal Environmental Director or designated tribal contact for
review. Depending on the action, we will typically provide 5-10 business days for review of the
draft permit. The tribal contact will be alerted to the approximate timing for receiving the draft
permit in advance.
VI. Air and Radiation Division Actions to Promote & Sustain Effective Consultation
As appropriate, ARD staff and management will meet with staff and management from the
relevant programs within the Office of Air & Radiation to ensure that Headquarters' offices
understand the concerns of Region 9 tribes and regional staff are aware of national efforts.
These meetings will facilitate better communication between offices so that ARD staff can help
inform tribes in Region 9 of Headquarters' activities and national rulemaking actions, when
appropriate.
ARD's Tribal Air Coordinator will meet monthly with staff from EPA Headquarters and other
Region's Air programs to promote better communication with tribes on a national and regional
level.
ARD will continue to work with Region 9's Tribal, Intergovernmental and Policy Division to
update training for Region 9 staff on working with tribes. The training will include a refresher on
the consultation process.
8
-------
ARD management will encourage all division staff to participate in regional and national
trainings that provide information on consultation, EPA's tribal policy, and how to work
effectively with tribes. These trainings will be required for ARD staff that work directly with
tribes.
All ARD staff that work with tribes will participate in RTOC meetings and/or sessions. ARD
managers and staff that do not work directly with tribes will be encouraged to participate in
RTOC sessions, as appropriate, to raise divisional awareness of tribal issues, concerns and
activities.
Separate from our consultation with tribes on specific regulatory actions, ARD will notify tribes
of upcoming regional CAA rulemakings and permit reviews at least quarterly through RTOC
meetings and through the Region 9 Tribal Newsletter.
ARD staff and management will periodically review these best practices to ensure the practices
are being implemented appropriately, determine if changes are necessary, or if there are
additional improvements that can be incorporated into the process.
-------
Appendix A; Listening Sessions with Tribes
Background:
The following notes were taken by ARD staff during the four consultation-specific listening sessions
offered to tribes on September 5, October 8, October 17, and October 23. In addition, three RTOC
sessions were held to discuss ARD's progress on developing best practices for consultation and solicit
input. These sessions were conducted to gather suggestions that could be implemented to improve
ARD's consultation process. Information and concerns gathered during these meetings informed the
development of ARD's best practices for consultation outlined in this document. The notes included
below were created during conference calls and in-person meetings and may not be comprehensive
but were intended to capture the themes and concerns we heard during the sessions.
Themes from Listening Sessions
Listed below are concerns/ideas offered by tribal representatives who attended the listening sessions.
Before Consultation/Offering Consultation
An effort needs to be made on the part of EPA to investigate individual tribe's concerns.
Acknowledgement of tribal concerns should be included in the letter offering consultation.
"Request for Consultation Letters" need to be readable, easily understood, and identify
potential individual tribe's issues.
Some tribes have their own consultation policies. EPA should read these before offering
consultation.
Consultation should occur prior to actions.
Consultation needs to involve the Region even when it is on a national rulemaking. The Region
can help identify individual tribal issues.
Actions shouldn't be a surprise to tribes. They shouldn't hear about the action from a
consultation letter.
EPA Headquarters needs to understand that not including tribes (for example, excluding
California tribes) can still affect them, and therefore they should offer consultation (example:
gas station permit).
There needs to be more internal training on working with tribes.
Some tribes may not be receiving letters (example: tribe not receiving a 2015 ozone designation
letter).
Consultation should be initiated from leader to leaderhead of R9 to head of tribe.
10
-------
During the Consultation Process
Meaningful dialogue needs to be back and forth. Rulemaking should be more iterative. This
means that sometimes EPA should plan for more than one consultation. Often there is only one
meeting, then consultation is closed.
RTOC meetings aren't an appropriate place to have consultation (HQ sometimes tries to do
this).
Trust responsibility shouldn't be about surprises.
Consult firstthen rule can go out for public comment.
Consultation should be a tool used to help make a decision; tribes shouldn't be handed a
decision to react to.
Tribes are currently treated like a member of the public during the consultation process.
Usually EPA proposes, then tribes consult during the public comment process.
Additional Information
There is not implicit trust with the federal government. Tribes are not going to "take our word
for it," they need to see the document and language. Then language needs to be discussed with
tribal leadership.
Tribes have limited resources and may need to prioritize and pick what they respond to
because there are too many EPA actions and not enough resources.
Going through a Tribal Council to get a decision or input can take a long time. The period during
which EPA offers consultation often needs to be longer.
11
-------
Appendix B; Consultation Documents
Federal:
1994 Presidential Memorandum
1998 Executive Order 13084 on Consultation and Coordination with Indian Tribal Governments
2000 Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments
2009 Presidential Memorandum on Tribal Consultation
2016 MOU Regarding Interagency Coordination and Collaboration for the Protection of Tribal
Treaty Rights
EPA:
1984 EPA Indian Policy (reaffirmed July 2009)
1998 Tribal Authority Rule
2005 EPA Region 9 Approach to Consultation
2009 OAQPS Consulting with Indian Tribal Governments guidance
2011 EPA Policy on Consultation and Coordination with Indian Tribes
Policy on Environmental Justice of Working with Federally Recognized Tribes and Indigenous
Peoples
Tribal Treaty Rights Guidance (2016)
Tribal Consultation Opportunities Tracking System- External TCQTs website
Guidance to Regions for Working with Tribes during the National Ambient Air Quality Standards
Designations Process (December 20, 2011) found at:
https://www.epa.gov/sites/production/files/2017-02/documents/12-20~
11 guidance to regions for working with tribes naaas designations.pdf
12
------- |