UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711



### MEMORANDUM 

# . .DEC 20 2011 OFFICE OF AIR QUALITY PLANNING AND STANDARDS 

### SUBJECT:

FROM:

TO: 

### Purpose Guidance 

### to Regions for Working with Tribes during the National Ambient Air Quality Standards (NAAQS) Designations

**Proce~** 

### Stephen D. Page,



# Director-~

# 7
Office ofAir Quality



# Pla~:d Standards Regional Air Directors, Regions I-X

This memorandum provides guidance to EPA Regional Offices for working with federally-recognized Indian tribes regarding the CleanAirAct (CAA) section 107(d) 1 designations process for Indian country? The intent ofthis guidance is to ensure that a nationally consistent approach is used for designating areas as meeting ornotmeeting the NAAQS in Indian country and to ensure that outreach to, and consultation with, tribes are included as a part ofthe overall process. First, this guidance provides background information regarding the designations requirements for EPA and states under the CAA. Next, the guidance provides background information regarding how tribes can participate inthe designations process. Finally, the guidance discusses the stepwiseprocess for working with tribes in the designations process, and the appropriate timing for conducting outreach and consultation inthat process. Please share this guidance with tribal leaders in your Region, providing courtesy copies to tribal environmental directors ortribal air quality staff, as appropriate. 

### Background On Designation Requirements Under CAA Section 107(d) CAA section 1 07(d) establishes, among other things, the requirement for EPA to designate areas following promulgation ofa new orrevised national ambient air quality standard (NAAQS). EPA generally designates areas as nonattainment, attainment, orunclassifiable relative to the promulgated NAAQS. Under section 107(d)(l)(B)(ii) ofthe CAA, EPAmust finalize the area designations no later than two years from the date a new or revised NAAQS is promulgated, unless the Administrator has

1Formore information regarding section 107(d), please visit: http://www.epa.gov/oagpsOOllgreenbk/caa-tlp.html. 2 Indian country, as defmed at 18 U.S.C. § 1151, means (a) all land within the limits ofany Indian reservation under the jurisdiction ofthe United States Government, notwithstanding the issuance ofanypatent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders ofthe United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits ofa state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-wayrunning through the same.

Internet Address (URL) • http://www.epa.gov Recycled/Recyclable • Printed wnh Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)

### . 2 insufficient information to promulgate designations. In such a case, the Administrator may extend this period for up to one year beyond the original deadline. Section 107(d) does not explicitlyreference Indian tribes or Indian country. However, tribes are able to participate inthe designations process, and EPA should initiate education and outreach to encourage them to do so. More information regarding tribal participation in the designations process is addressed later inthis document. Section 107(d) does establish explicitroles for states in providing recommended designations. Section 107(d)(l)(A) requires the Governor ofeach state to submit to EPA a list ofall areas inthe state and to recommend a specific designation for each area. Therecommended designations are to be submitted by a date establishedbyEPA, which canbe no sooner than 120 days and no later than 1 year from the date ofpromulgation ofa new or revised NAAQS. Because states generally do not implement CAA programs in Indian country, their designation recommendations would generally not include Indian country. Background On "Treatment-In-A-Similar-Manner-As-A-State" for CAA Section 107(d) and Tribal Involvement in Designations Although CAA section 107(d) does not explicitlyreference Indian tribes or Indian country, CAA section 301 (d) authorizes EPA to treat eligible Indian tribes in a manner similar to states for purposes ofmost CAA provisions. Pursuant to that authority, EPApromulgated the Tribal AuthorityRule (TAR), which establishes the process for Indian tribes to seek "Treatment-In-A-Similar-Manner-As-A-State" (TAS) eligibility and sets forth the CAA provisions for which TAS is available. 3 Under the TAR, eligible tribes may seek TAS for all CAA and regulatorypurposes other than a small number ofprovisions enumerated at 40 CFR §49.4. The section 107(d) designations process is one CAApurpose for which tribes may seek TAS. Where a tribe obtains TAS for the purposes ofsection 107(d) designations, EPA is obliged to treat that tribe in a manner similar to states, and EPA expects that such tribes would submit designation recommendations in the same manner as states. Even in cases where a tribe has not obtained TAS for section 107(d) purposes, EPA may solicit relevant air qualityinformation and designation recommendations from the tribe for its areas ofIndian country. In addition, Executive Order (EO) 13175 and the Agency's 1984 Indian Policy call for us to consult with tribes on actions and decisions, such as designation oftheir Indian country, that affect their interests. Although tribes are generallynot required to participate in the designations process, EPAbelieves it is important to work with all federally-recognized tribes to provide the opportunity to participate. In this regard, EPA intends to solicit relevant air quality information and designation recommendations from, and offer consultation to, all tribes, irrespective oftheir TAS status for designations purposes. This approach is consistent with the federal government's trust responsibilityto federally-recognized Indian tribes as well as various policies relating to tribes. These policies include, but are not limited to, EO 13175, EPA's 1984policyrelatingto Indian tribes andimplementationoffederal environmental programs, the April 10, 2009 EPA Office ofAir Quality Planning and Standards guidance "Consulting with Indian Tribal Governments," and the "EPA Policy on Consultation and Coordination With Indian Tribes. " 4

3 See, 63 FR7254, February 12, 1998, codified at40 CFRPart49

. 4 For a copy ofthe policy, see http://www.epa.gov/tribaJJpdf7cons-and

-coord

-with-indian-tribes-policy

.pdf.3 Itis also importantthat EPA conducts outreach and offers consultation to all tribes on a schedule that provides sufficient time for them to be involved inthe designations process, and to submit relevant air quality information and recommended designations. In order to meetthe schedule for completing the designations, EPA intends to treat tribal recommendations in the same manner and on the same schedule as staterecommendations. Consistent with section 107(d), wetherefore intend to: 1) Notifythe tribe of anymodification EPA intends to make to therecommendation no later the 120 days priorto promulgation ofthe final designations, and 2)providethe tribe with an opportunity to demonstrate why anymodificationbyEPAmaybe inappropriate. More informationregarding this process is included in the next section, "Procedures for Working with Tribes inthe Designations Process." Procedures for Working with Tribes in the Designations Process ProcessforDesignations of Indian Country The steps for working with tribes in the designations process are included in detail below, and summarized inAttachment A. -7 Steps 1 through 3: 1) PromulgateNAAQS, 2) Initiate education and outreach, 3) Send consultation letter Shortly afterpromulgation ofa final NAAQS, EPA Headquarters and Regional Offices should initiate education and outreach to tribes onthe designationprocess. Education and outreach activities, not to be confused with consultation, mayinclude webinars and conference calls, and disseminating information to members ofthe Regional Tribal Operations Committees, othertribal environmental organizations (e.g., the National Tribal Air Association) and/or tribal environmental professionals. In addition, EPA Regional Offices should send a letter (commonlyreferred to as a "consultation letter") to eachtribe notifying them ofthe designationprocess and conveying detailed designations guidance. This consultation letter shouldbe addressed to all tribal leaders, providing courtesy copies to tribal environmental directors ortribal air quality staff, as appropriate.5 The letter should inform tribes ofthe following:

• thepromulgation ofa new orrevised NAAQS; • an opportunity for "government-to-government" consultation with EPA; • the opportunity and process (including timeline) for submitting initial designation recommendations;6
• the datebywhich EPA requests thattribes notify EPA ifthey wish to engage in consultation and/or participate in the designation process; • thepotential nonattainment designation for their Indian country (ifapplicable); 7
• the timeframe inwhich EPA intends to promulgate designations; and • specific contact information for questions and follow up on the letter

.

5 For a sample letter, see AttachmentB

. 6 To help us promulgate designations on a schedule consistent with CAArequirements, EPA must have ALL initial designations recommendations from tribes and states on the same established schedule. 7 Where possible, this notification can support early consultation with the tribes and ensure that the consultationprocess does notimpact completing the designations on schedule.4 EPA Regional Offices should follow-up with informal or courtesy contact and reminders to help ensure that tribal participation occurs in a timelyway. Regional Tribal Air Coordinators and Tribal program staffat EPA Headquarters offices canhelp with this informal contact. 

### -7 Step 4: Conduct consultation After sendingthe consultation letter, EPA Regional Offices should conduct consultation with interested tribes whenrequested. Consultation is generally defined as a process ofmeaningful communication and

.coordinationbetween an EPA representative who is considered a decision-maker for the Agency (the Associate DivisionDirector or above) and tribal officials or their designees. Whenrequested, consultation should be conducted according to a schedule agreed upon bythe tribe and EPA.8 The schedule should allow sufficient time for a tribe to develop and submit technical information and designation recommendations, ifthe tribe chooses to do so. Itis important for EPAto keep in mind that tribes also haveprocedural and governmental protocols which mustbe considered in order to provide formal responses. During consultation, EPA should ensure that those tribes who are interested in submitting a recommendation for their area oflndian countryto be designated separately from the adjacent area are aware ofthe implications for their tribe (e.g., air qualityplanning and permitting) iftheir recommendation is granted. 

### -7 Steps 5 through 9: 5) Receive tribal recommendations, 6) Review tribal recommendations, 7) Provide tribes with opportunity for technical dialogue regarding recommendations, 8) Notify tribes via 120-dayletter, 9) Provide opportunity for tribes to submit further technical information After consultation, but along the same schedule as state recommendations, interested tribes would submit initial designations recommendations for EPA's consideration. Ifa tribe elects to participate in the designations process and submits recommendations, and EPA intends to make anymodifications to therecommendations, EPA should offer an opportunity for tribal staffto engage in a technical dialogue regarding the recommendations. This will ensure that tribal staffmembers have time to engage with their tribal leaders before theyreceive written notification from EPA. No later than 120 days prior to promulgation, EPA should notify the tribe ofthe modifications EPA intends to make to the recommendations. EPA should also provide the tribe with an opportunityto submit further technical information that demonstrates why anyproposed modification to its recommendation maybe inappropriate. This notification is usually conducted inwriting, via a letter (commonlyreferred to as a "120-dayletter"), which would also offer an opportunity for government-togovernment consultation. Because ofthepotential implications for tribes, EPAbelieves it is important to send similar (but modified) 120-dayletters to additional tribes as follows:

• all tribes that submitted initial designation recommendations (both those EPA intends to modify and those EPA intends to accept); • all tribes with Indian countrythat EPA intends to designate as nonattainment; and • all tribes with TAS status for section 107(d) purposes.

8 When conducting consultation with a tribe, it is important for EPA to confirm with the tribe that the activity does, indeed, constitute consultation. Itis also important to document that consultation has takenplace.5

The 120-dayletter should be addressed to all tribal leaders, providing courtesy copies to tribal environmental directors or tribal air quality staff, as appropriate. We encourage EPA Regional Offices to foster coordinationbetween states and tribes in the designations process. To that end, courtesy copies of the 120-dayletters should also beprovided to those states whose areas are adjacent to the relevant areas ofIndian country. In addition, affected tribes should be copied on 120-day letters that are sent to relevant states. 

### -7 Step 10: Conduct post 120-dayletter consultation Whenrequested, consultation should be conducted after the 120-dayletter is sent. This is especially important where a tribe disagrees with EPA's intended designation. Although tribes are generally not required to submit designation recommendations, the CAA does establish statutoryrequirements to promulgate designations within a specified timeframe. Itis crucial during consultation for EPA to fully inform tribes ofthis statutoryrequirement. This will help ensure that consultation is completed by the time the final designations are promulgated. Perthe EPA's Policy on Consultation and Coordination with Indian Tribes, EPA will provide feedback to the tribes(s) involved in consultation to explain how their input was considered inthe final action. This feedback should be a formal, written communication from a senior EPA official involved to themost senior tribal official involved in the consultation. 

### -7 Steps 11 through 13: 11) Determine final designations, 12) Publish final designations, 13) Conduct education and outreach The CAA requires EPA to complete the designations process within two years ofpromulgation ofa new or revised NAAQS unless the Administrator has insufficient information to make a decision in that timeframe. Theultimate statutory authorityto promulgate designations rests with EPA. Ifa tribe does not submit recommendations, EPA, under its CAA authorities, will promulgate an appropriate designation for the relevant area ofIndian country. EPA intends to designate all areas onthe same schedule

. After the final designations are determined and published in the Federal Register, it is important for EPA Headquarters and Regional Offices to conduct education and outreach to fully inform the tribes ofthe final designations. FlexibilityRegarding Written Contact with Tribes To help ensure timely communication withtribes, itis important for EPA Regional Offices to submit written notice to all tribes when initiallyinforming them ofthe designations process and engaging with affected tribes during the 120-day stage inthe process. For all other steps in the designations process, however, written contact maynot always bethe most appropriate manner ofcommunication. Each Region has the flexibility to tailor their outreach and consultation efforts, as appropriate, to tribes in a manner

**consist~nt** with the agreed uponrelationship ithas developed. However, the structures and procedures oftribal governments inthe Region shouldbetaken into consideration. Questions Regarding This Guidance Staffin EPA's Office ofAir Quality Planning and Standards are available for assistance throughout the designations process. Questions onthis guidance maybe directed to Kristin Riha at (919) 541-2031 or riha.kristin@epa.gov; or Angel McCormack at (919) 541-3588 ormccormack.angel@epa.gov.Attachments

cc: Anna Wood, OAQPS Lydia Wegman, OAQPS Richard Wayland, OAQPS Greg Green, OAQPS Peter Tsirigotis, OAQPS Margo Oge, OTAQ Sarah Dunham, OAP 

### 67 ATTACHMENT A. PROCESS FOR DESIGNATIONS OF INDIAN COUNTRY Step Activity 1 Final NAAQS promulgated and published inFederal Register 2 Education and outreach conductedbyEPA Headquarters and Regional Offices on designations process 3 Letters sentbyEPA Regional Offices to tribes requesting designations recommendation and offering consultation. Letters should inform tribes ofthe following: 

### • the promulgation ofa new orrevised NAAQS; 

### • an opportunity for "govenunent-to-govenunent" consultation with EPA; 

### • the opportunity and process (including timeline) for submittinginitial designation recommendations; 

### • the date bywhich EPA requests that tribes notify EPA ifthey wishto engage in consultation and/or participate in the designationprocess; 

### • the potential nonattainment designation for their Indian country (ifapplicable); 

### • the timeframe in which EPA intends to promulgate designations; and 

## • specific contact information for questions and follow up onthe letter 

### 4 Consultation conductedbyEPA Regional Offices 5 Tribes provide designation recommendations 6 EPAreviews recommendations and conducts own analysis (e.g., multi-factor analysis) 7 IfEPA intends to modify a tribe's recommendation, EPA Regional Offices offer tribal staffan opportunity for technical dialogue 

### 8 120-dayletters (which provide an opportunity for consultation) sentbyEPA Regional Offices to the following tribes: 

### • all tribes that submitted initial designation recommendations; 

### • all tribes with Indian countrythat EPA intends to designate as nonattainment; and 

### • all tribes with TAS status for CAA Section 107(d) purposes 

### 9 Tribes have opportunity to submit further technical information, ifthey disagree with intended designation 10 Consultation conductedbyEPA Regional Offices and additional information evaluated 11 Final designations determined 12 Final designations signed byEPA Administrator and published in Federal Register 13 Education and outreach conductedbyEPA Headquarters and Regional Offices on final designations8 

### ATTACHMENT B. SAMPLE TRIBAL DESIGNATIONS CONSULTATION LETTER

«FIRST» «LAST» «TITLE» «TRIBE NAME» <<ADDRESS» «CITY», «FULL_STATE» «ZIP» «Dear «TITLE» «LAST Name»: (INSERT DATE)

Thepurpose ofthis letter is to provide you with information and guidance on the U.S. Environmental Protection Agency's (EPA) designations process for the (INSERT POLLUTANT) national ambient air quality standard (NAAQS). Your tribe may find it important to engage with us in the process of assigning designations for Indian country. Although your involvement is notrequired, we would like to invite you to participate in the designations process and to offer you consultation. We want to ensure early, transparent and effective communication in proposing area designations for the revised (INSERT POLLUTANT) standard. On (INSERT DATE), EPA revised thep1imary (INSERT ''AND SECONDARY," IF APPLICABLE) NAAQS for (INSERT POLLUTANT) to provide increased protection ofpublic health and welfare from (!INSERT**POLLUTANT ~**  pollution. The new primary (INSERT POLLUTANT) standard was lowered from (INSERT INFO REGARDING OLD AND NEW STANDARD(S)). (INSERT ANY ADDITIONAL INFORMATION REGARDING THE STANDARD(S)). Establishing area designations is a key step in the process ofproviding the health and/or welfare protection intended bythe Clean Air Act (CAA). Within two years ofpromulgation ofa new or revised NAAQS, EPA must list and designate all areas inthe country as either: Attainment-areas that meet the standard; Nonattainment-areas that either do not meet the standard, or are contributing to a nearby area that does not meet the standard; or Unclassifiable-areas where there is insufficient information to make a determination. These designations arebased on current air quality information, recommendations from state Governors and tribal Leaders, and other relevant information discussed in the attached guidance document. We encourage you to submit your recommendation for designation ofyour area for consideration in this process. [Add 

### if area violating: Preliminarily, webelieve your area potentiallymaybe designated nonattainment for the (INSERT POLLUTANT) standard] We invite and encourage you to participate in the designations process. Please notify us by (INSERT DATE) ifyou are interested inparticipating in the designations process and/or consulting with us regarding the process. When requested, consultation will9 be conducted in accordance with the EPA Policy on Consultation and Coordination with Indian Tribes (www.epa.gov/tribal/consultation/consult-policy.htm). Ifyou choose to participate inthe designations process, we ask that you provide your recommendation to EPA by (INSERT DATE). The enclosed memorandum provides guidance on the process for designating areas under the revised (INSERT POLLUTANT)NAAQS. Weplan to announce our intended designations no later than 120 days prior to promulgating the final designations. Following the announcement ofintended designations, tribes will have an additional opportunity to consult with us on any modifications EPA maypropose to a tribe's original recommendation. In accordance with section 107(d)(l)(B) ofthe CAA, we are required to issue final designations by no later than (INSERT DATE)

. Our designations will bebased on the mostrecent three calendar years of certified, quality-assured monitoring data available, and any otherrelevant information. Ifa tribe does not submit a recommendation, we will promulgate an appropriate designation for the relevant area of Indian country. As the process moves forward, we will keep you and your staffinformed ofany additional guidance or other support activities. We look forward to working with you and your staffto develop area designations under the revised (INSERT POLLUTANT) standard(s) in a timelymanner. Ifyour tribe is interested in consultation or participating in further discussions or meetings with EPA officials about the designations process, please do not hesitate to contact me or (INSERT NAME) ofmy staffat (INSERT TELEPHONE NUMBER) or (INSERT EMAIL).
Sincerely,

(INSERT NAME) Regional Administrator

Enclosure

cc: Tribal environmental director Tribal environmental staff Appropriate State/local Agencies