Final – Approved b y MANE-VU Board 05 /10/06

Inter-RPO State/Tribal and FLM Consultation Framew o r k

I. Introductio n

In the preamble for the R e gional Haze Regulations (“Rule”), published in the Federal Register on July 1, 1999, the U.S. Environm e n tal Protec tion Agency (“EPA”) strongly encourages States and Tribes to participate in the regional plan ning process. (See, 64 FR 35714). The pream ble also describes the role of regional planning organi zations indicating that, “[ t]he EPA expects that much of the consultation

, apportionment dem ons trations, and technical do cum e ntation will be facilitated and developed by regi onal planning organizations. ” (See, 64 F R 35735). The goals of instituting consultation procedures are m a inly:

1. To help develop a com m on technical basis and apportionm e n t for long-term strategies that could be approved by indivi dual state participants and tr ansla t ed in to regiona l ha ze SIPs for subm ission to EPA, 2. To dem onstrate th at s t ates are workin g toge ther to develop acceptable approaches for addressing regional visibility problem s to which they jo intly contr i bute, a nd 3. To provide infor m ation on areas of agreem en t and disagreement am ong States that the Adm i nistra tor will take into accoun t in the re vie w of a State’s implem entation p l an to determ ine whether the State’s go al fo r visi bility improvem e nt provides for reasonable progress to wards natural vis i bility conditions.

For the purp o ses of this I n ter-Reg ion a l Pl anning Organization (“RPO”) Consultation Fram ework, the term “consultation” refers sole ly to the consultation requirem e nts, of th e Regional Ha ze Rule, and is not in ten d ed to ref e r to or addr ess theTrib a l g overnm e nt/Federa l

governm e nt consultation process.

II. Goal of In ter-RPO Consultation Framew ork

The prim ary goal of this Inter-RPO Consultation Fram ework is to delineate, by consensus, the basic consultation requirem ents for s t ates, trib es, RPOs, and Federal Land Managers (“FLMs”) required und er 40 CFR Part 51, durin g the reg i on al haze S t ate Im plem entation Plan (SIP) developm ent process. The consultation process is a docum e nted process that m u st be includ ed in the “ c ore requirem e nts” of the Regional Haze SIP subm ittal. In fact, the pream ble of the Regional Ha ze Rule state s that “[ t] he EPA is requiring States to docum ent their analyses, including any consultations with other States in support of their conclusions....” (64 FR 35721). (em phasis added). Form al consultation, as re quired by the Regional Ha ze Rules in 40 CFR Part 51, Subpart P, m a y be built upon p r ior, docum ented inform al consultatio ns.

The consultation process explicitly applies to the developm ent of the first regional haze im ple m entation plans due to EPA in 2008 as well as com p rehensive periodic revisions every 10 years th ereafter. The Consulta tion Fram e w ork may also be usef ul as states develop their required periodic reports descri bing progress towards the reasona ble progress goals which are due every 5 years.

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One of the key purposes of the consultation fr amework is to better de fine the consultation process with in the con t ext of regional haze p l anning, and to create g r eater certainty an d understanding am ong RPOs. The process should be consistent across RPOs, and be well docum ented such tha t it positiv ely c o ntribu tes to im proving visibility in m a ndatory Class 1 are a s

.

III. Consultation Requirements Specified in 40 CFR Part 51, Subpart P (relating to protection of visib i lity)

A. Development of the R e asonable Progress Goal:

Section 51.3 08(d) of the Regional Haze Rule sp ecifies that “–[I]n developing each reas onable progress goal, the State must consult with those States which m a y reason ably be an ticipated to

cause or con t ribu te to v i s i bility im pairm e nt in the m a ndatory Class I Fede ral a r ea. In any situa tion in which the State canno t a g ree with an ot her such S t ate o rgroup of States th at a goal provides f o r reasonab l e p r ogress, the State m u st describ e in its subm ittal th e actions tak e n to resolve the d i sagre e m e nt. In reviewin g the St a t e' s im plem entation plan sub m ittal, the [ E PA] Adm i nistrator will take this inform ation into acc ount in determ ining whether the S t ate' s goal for visibility improvem e nt provides for reasonable pr ogress towards natural vi sibility conditions. ” [40 CFR §5 1.308(d)(1)(iv)].

B. Developme n t of Long-term Stra teg y :

The Regional Haze Rule provides that – “[w]here the S t ate has em issions that are reasonably antic ipated to contr i bute to visib i lity impairm e nt in any m a nda tory Class I Federal area located in another S t ate or States, the State m u st consult with the other S t ate(s) in order to develop coordinated em ission m a nagem e nt strategies. Th e State m u st consult with any other State having em issions that are reason ably anticipated to contribute to visibility impair m e nt in any

m a ndatory Class I Federal area within the State. ” [40 CFR § 51.308(d)(3)(i)].

C. State and Federal Land Manager Coordination:

–According to Section 5 1 .308(i)(2) o f the Regiona l Haze Rule, “ “[t]he State m u st provide the Federal Land Manager [ F LM] with an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on an implem entation plan (or plan revision) for regional haze required by this [Subpart P]”. The purpose of the consultation in person is to allow the affected FLM to discuss: (1 ) The FLM’s “ass e ssm ent of impa irm e nt of visibility in any

m a ndatory Class I Fede ral a r ea ;” an d (2) “Recommendations on the developm ent of the reasonable progress goal and on the developm ent and im ple m entation of strategies to address visibility im pairm e nt.” [40 CFR §51 .308(i)(2)].

The Rule also provides that – “[t]he plan (o r plan revision) m u st provide procedures for continuing consultation between the State and Fe deral Land Manager on the im plem e n tation of the vis i bility protection p r ogram required by[Subpa rt P], including developm ent and review of im ple m entation plan revisions and 5-year progre ss reports, and on the im plem entation of other

program s having the potential to co ntribute to impairm e nt of vi sibility in m a ndatory Class I Federal areas.” [40 CFR §51.308(i)(4)].

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IV. Types of Consultations

A.) State / Tr ibal-to-S t ate / Triba l In ter

- RPO Consulta tions. B.) State / Tribal-to-Fed e ral Land Manager (FLM) Consultations.

V. Suggested Discussion Topics during consultation process

A. State-to-State and S t ate-T r ibal re gional haze consultations are required for the developm ent of the reasonable progress goal and long-term strategies. Suggested discussion topics inclu d e the follo wing:

1) Reasonable Progress Goal :

a. Natural background b. Baseline co nditions

c. Unif orm Rate of Visibility Im provem e nt d. Contribution determ ination

e. Other factors (regard i ng reasonab l e progres s g o als)

2) Long-term Strategies :

a. Em issions inventory/smoke m a nagem e nt plans b. Model perform a nce

c. Control measures d. Monitoring strategy

B. Theprelim i nary listing of discussion topics is subject to change based on the

recomm end a tions of States/T ribes, R P Os and f e deral p a rticip ants in cluding EPA and the FMLs.

VI. Consultation Principles

1) All State, Tribal, RPO, and Federal p a rticip an ts are comm itted to continuing dialogue and inform ation sharing in order to create unders tanding of the respective concerns and needs of the parties. 2) Continuous docum entation of a ll communications is necessary to deve lop a record for inclus ion in the SIP sub m ittal to EPA. 3) States alone have the authority to undertake specific m easures under their SIP. This interRPO fra m ework is designed solely to facili tate n eeded communicat ion, coordination and cooperation am ong jurisdictions but does not es tablish binding obligation on the part of participa ting agencie s

. 4) There are tw o areas which require State-to-S ta te a nd/or Sta t e- to-Triba l con s ulta tions (“form al” consultations): (i) developm ent of the reasonab l e p r ogress go al for a Class I area, and (ii) developm ent of long-term strate gies. W h ile it is anticipated that the form al consultation will cover the techn i cal com ponents that m a ke up each of th ese policy decis i on areas, there m a y be a need for the RPOs, in coord i nation with their State and Tribal m e mbers, to hav e inf o rm al consulta tions o n these tech nical consid erations.

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5) During both the form al and inform al inter-RPO consulta tions, it is anticip a ted th at th e States and Tribes will w o rk collectively to f acilitate the consultati on process through their respective R P Os, when feasib le. 6) Technical analyses will be transp arent, when possible, and will reflect the most up-to-date inform ation and best scientific m e thods fo r the decision needed within the resources available. 7) The State with the Class I area retain s the re spon sibility to es tabl ish reasonable progress goals. The RPOs will m a ke reasonable ef f

o rts to f acilitate the develop m ent of a consensus b e tween the S t ate with a C l ass I area and other States aff ecting that area. In instan ces where th e State with the C l ass I area can not agree with such o t her States that the goal p r o v ides f o r re a s onable pro g ress, ac tion s taken to re solve th e dis a greem ent must be includ ed in the State ’ s regiona l ha ze impl em entation plan (or plan rev i sions) subm itted to the EPA Ad m i nistrator as requ ired under 40 CFR §51.30 8(d)(1)(iv). 8) All States whose em issions are reas onably an tic i pated to co ntribu te to v i sibility im pair m e nt in a Class I area, m u st provide the F e dera l Land Manager (“ FLM”) agen cy for that Class I area with an oppor tunity for consultation, in person, on their regional haze im ple m entation plans. T h e States/Tribes w ill pu rs ue the developm ent of a m e morandum of understanding to expedite the subm ission and consideration of the FLM’s comm e n ts on the reasonable progress goals and related im plem e n tation plans. As required under 40 CFR §51.30 8(i)(3), the plan or plan revision m u st include a descrip tion of how the State addressed any FLM comments. 9) States /Trib e s will consu l t with th e af f

ected FLMs to protect the air resou r ces of the State/Tribe and Class I areas in accordan ce with the FLM coordination requirem e nts specified in 40 CFR §51 .308(i) and othe r consultation procedures developed by

consensus.. 10) The consultation process is designed to shar e inform ation, define and docu m ent issues, develop a range of options, solicit feedback on options, de velop consensus advice if possible, an d facilitate infor m ed decisions by the Class I States. 11) The collabo rators, includ ing States, T r ibes a nd affected FLMs, will promptly respond to other RPO’s / States’/Trib es’ requ ests for comm ents.

VII. Consultatio n Processes

A) Formal State/Tr ibal-to -State /Tribal Inte r-RPO Consultations* :

1) Any State or group of States initiating a consultation with another State/States on visibility-related concern s needs to d e signa te a contact person to handle expeditiously the adm i nistrative aspects of the cons ultation, including sc heduling and notifying participants, and providing docum en tation. 2) The State initiating th e consultation is responsible for coordination of all aspects of the consultation. 3) This process is designed chiefly to apply to consultations involving States consulting across RPO lines, whether the consultation is initiated by one or m o re Class I States or by a State or group of States without a Cl ass I area. States consulting with other States within the sam e RPO are encouraged to f o llow this pr ocess to m a intain consistency and achieve good documentation of outcom e s.

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4) It is assum e d that m o st consultation s will be initiated by S t ates with Clas s I are a s. All States (or their RPOs on their behalf ) ar e responsible for initiating the required consultation with affected FLMs according to the procedures in 40 CFR § 51.308(i) and this docu m e nt. At the request of th e State or group of States initiating the consultation

, the RPO f o r the r e gion in which the Class I a r ea is loc a ted m a y serve as f

acilitato r to help the Cla ss I Sta t es c onsult with other states and particip ating trib es. The RPO will ass i st w ith all adm i nistrative , logistical and docu m entation aspects of the consu ltation proces s for the State or Stat es that have requested facilitation by their RPO. 5) Consultation s are a gov ernm ent-to-go v ernm en t transaction. Stakeholders are not participan ts in thes e con s ulta tions. 6) The consultation p r oces s will oc cur as part of th e region al h aze SIP dev e lopm ent cycle. It m a y also be initiated as a p a rt of a m i d-course adjustm e nt in the m i ddle of a SIP cycle. This Fram ework does not apply to individual regulatory, enforcem ent or perm itting activ ities and should not b e understoo d to be of any relev a nce to those activ ities. 7) The consultation process as a whole m a y involve several types of m eetings, conference calls, and inform ation sharing. An in itial consu l tation will us ually oc cur in the form of a conference call am ong all pa rtie s, unless the parties ag ree to an alternative form at. 8) The tim ing of consultations will be coordi nated with the p r o duction of component work products and the process of offe ring opportunities for comments on those products. A ll parties will be sensitive to the tim e line of the Class I area State or Tribe. 9) For consultations on the regional haze reas onable progress goal and the long-term strategy, and on their component topics, the Cl ass I States m a y reque st that an initial consultation be conducted via conference call. When feasible, web m eeting tools or videoconferencing technology m a y b e used to enable parties to share inform ation more easily. 10) Preparation and notification:

a. The State de signates a co ntact (which m a y be the RPP Director/staf f

) that will have responsibility for scheduling and notifying all parties about the consultation, and m a kin g sure all necessary m a terials are pro m ptly provided to the pa rticipants. b. Who gets notified: Those parties associat ed with what is ind i cated in the rule as “reasonably anticipated to contribute to a Class I area” – m o re specifically, the approp riate State Co mmissioners , Stat e Air Directors, and RPO designated contacts. Affected FLM repres entative (s) and EP A represen ta tive ( s) will a l so be invited to participate in such c onsultations. If appropriate, the State Comm issioner or th e State Air Director m a y wish to notify appropriate state or local governm ent staff regard ing any and all consultations.

c. How scheduled: the State contact or RP O designee sends out an e-m a il to the other State o rStates to a rrange f o r av ailab l e da tes /tim es. Once arr a ngem e nts

are se ttled, the initia ting State o rit s RPO designee then sends out form al notif ica tion via ce rtif ied m a il with an agenda, list of partic ipan ts and ca ll f o r additional m a ter i als. Thirty (30 ) ca le ndar days will be allowed for all parties

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to rev i ew th e techn i cal m a terials prior to the date of a for m a l consultation unless oth e r w ise all par t ies m u tually agree, in wr iting, to adh e re to a long er or shorter tim e fra m e. 11) During consultation, the participants should:

a. Explain the issue/proposal and s upporting technical inform ation b. Provide answers to clarifying questions

c. Request tha t any issues that ar e not a ddressed o rresolved b e subm itted in writing to the State contact and RPO designee. d. The State co ntact o rRPO designee will takes no tes and pr ep ares a summary of the consultation. 12) Post-consultation and follow up:

a. The summary will be d i s t ribu ted for review and comm ent, along with the consultation notif ica tion e-m a il and lette r, agenda , and lis t of participan ts. The finalized docum ent a tion will be provi ded to all pa rticip a n ts and oth e r interested stakeholders upon request. The summary notes for any consultation should indicate areas/item s o f agreem ent and disagreem ent. b. The State contact or RPO designee is responsible for comp iling an ongoing record of the consultation, including a ny additional m eetings/calls that occur on outstand i ng concerns. The State c ontact o rRPO designee will dis t r i bu te docum entation on additional m eetings/c a lls to all re levant p a rties.

c. Issues that cannot be further discu ssed or reso lved without ad dition a l inform ation can be taken through pertin ent committees involv ing stakeholders to get feedb ack. 13) Each RPO will deve lop a consultation page on their website where the d o cum e ntation will be pos te d. Each RPO will post all docum entation on be half of the initiating State.

*Note: No specifics on Tribal consu lta tions a r e r e f e rred to in this se ction at th is tim e

.

VIII. Formal Sta t e/Triba l -to -FLM Consultation Process :

A. As required under 40 CFR §51.308(i)(2), the state m u st provide the FLM with an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on any regional haze implem en tation plan (or plan revision ). B. As previously describ e d in VII(A) ab ove, a State or group of States initiating a consultation with the FL M m a y request th at th eir RPO serves as a facilitator for such consultations. C. As noted in the proc ess describ e d in VII(A) a bov e, the af f

ected FLMs will be invited to participa t e in the f o rm al State / Triba l to State/Tribal consultations that occur on reasonable progress goals and the lon g -term stra te gy. I D. Unless required pursuant to applicable statut e or regulation, nothing herein should be inte rpre ted to requir e co nsulta tion w ith FLM with respec t to any regulato r y, enf o rcement or perm ittin g action s

. E. FLM will be urged to res pond in an efficient and tim e ly fashion to the opp ortunity to consult on a regional haze plan a nd on the specifics of the plan.

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