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 of Air 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 Clean Air Act (CAA) section 107(d)1 designations process for Indian 

country? The intent of this guidance is to ensure that a nationally consistent approach is used for 

designating areas as meeting or not meeting the NAAQS in Indian country and to ensure that outreach 

to, and consultation with, tribes are included as a part of the 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 in the 

designations process. Finally, the guidance discusses the stepwise process for working with tribes in the 

designations process, and the appropriate timing for conducting outreach and consultation in that 

process. 

Please share this guidance with tribal leaders in your Region, providing courtesy copies to tribal 

environmental directors or tribal 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 of a new or revised national ambient air quality standard (NAAQS). EPA 

generally designates areas as nonattainment, attainment, or unclassifiable relative to the promulgated 

NAAQS. Under section 107(d)(l)(B)(ii) ofthe CAA, EPA must finalize the area designations no later 

than two years from the date a new or revised NAAQS is promulgated, unless the Administrator has 

1 For more 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 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. 

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 1 07( d) does not explicitly reference Indian tribes or Indian country. However, tribes are able to 

participate in the 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 in this document. 

Section 1 07( d) does establish explicit roles for states in providing recommended designations. Section 

1 07( d)(l )(A) requires the Governor of each state to submit to EPA a list of all areas in the state and to 

recommend a specific designation for each area. The recommended designations are to be submitted by 

a date established by EPA, which can be no sooner than 120 days and no later than 1 year from the date 

of promulgation of a 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 1 07( d) does not explicitly reference Indian tribes or Indian country, CAA section 

3 01 (d) authorizes EPA to treat eligible Indian tribes in a manner similar to states for purposes of most 

CAA provisions. Pursuant to that authority, EPA promulgated the Tribal Authority Rule (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 regulatory purposes other than a small number of provisions enumerated 

at 40 CFR §49.4. The section 107(d) designations process is one CAA purpose for which tribes may 

seek TAS. Where a tribe obtains TAS for the purposes of section 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 1 07( d) purposes, EPA may solicit relevant 

air quality information and designation recommendations from the tribe for its areas of Indian 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 of their Indian country, that affect their interests. 

Although tribes are generally not required to participate in the designations process, EPA believes 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 of their T AS status for designations purposes. This 

approach is consistent with the federal government's trust responsibility to 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 of Air 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 FR 7254, February 12, 1998, codified at40 CFRPart49. 4 For a copy of the policy, see http://www.epa.gov/tribaJJpdf7cons-and-coord-with-indian-tribes-policy.pdf. 
3 

It is also important that EPA conducts outreach and offers consultation to all tribes on a schedule that 

provides sufficient time for them to be involved in the designations process, and to submit relevant air 

quality information and recommended designations. In order to meet the schedule for completing the 

designations, EPA intends to treat tribal recommendations in the same manner and on the same schedule 

as state recommendations. Consistent with section 107(d), we therefore intend to: 1) Notify the tribe of 

any modification EPA intends to make to the recommendation no later the 120 days prior to 

promulgation of the final designations, and 2) provide the tribe with an opportunity to demonstrate why 

any modification by EPA may be inappropriate. More information regarding this process is included in 

the next section, "Procedures for Working with Tribes in the Designations Process." 

Procedures for Working with Tribes in the Designations Process 

Process for Designations of Indian Country 

The steps for working with tribes in the designations process are included in detail below, and 

summarized in Attachment A. 

-7 Steps 1 through 3: 1) Promulgate NAAQS, 2) Initiate education and outreach, 3) Send consultation 

letter 

Shortly after promulgation of a final NAAQS, EPA Headquarters and Regional Offices should initiate 

education and outreach to tribes on the designation process. Education and outreach activities, not to be 

confused with consultation, may include webinars and conference calls, and disseminating information 

to members of the Regional Tribal Operations Committees, other tribal environmental organizations 

(e.g., the National Tribal Air Association) and/or tribal environmental professionals. In addition, EPA 

Regional Offices should send a letter (commonly referred to as a "consultation letter") to each tribe 

notifying them of the designation process and conveying detailed designations guidance. This 

consultation letter should be addressed to all tribal leaders, providing courtesy copies to tribal 

environmental directors or tribal air quality staff, as appropriate. 5 The letter should inform tribes of the 

following: 

• the promulgation of a new or revised NAAQS; 

• an opportunity for "government-to-government" consultation with EPA; 

• the opportunity and process (including timeline) for submitting initial designation 

recommendations; 6 

• the date by which EPA requests that tribes notify EPA if they wish to engage in consultation and/or 

participate in the designation process; 

• the potential nonattainment designation for their Indian country (if applicable); 7 

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

• specific contact information for questions and follow up on the letter. 

5 For a sample letter, see Attachment B. 6 To help us promulgate designations on a schedule consistent with CAA requirements, 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 consultation process does 

not impact 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 timely way. Regional Tribal Air Coordinators and Tribal program 

staff at EPA Headquarters offices can help with this informal contact. 

-7 Step 4: Conduct consultation 

After sending the consultation letter, EPA Regional Offices should conduct consultation with interested 

tribes when requested. Consultation is generally defined as a process of meaningful communication and 

. coordination between an EPA representative who is considered a decision-maker for the Agency (the 

Associate Division Director or above) and tribal officials or their designees. When requested, 

consultation should be conducted according to a schedule agreed upon by the tribe and EPA. 8 The 

schedule should allow sufficient time for a tribe to develop and submit technical information and 

designation recommendations, if the tribe chooses to do so. It is important for EPA to keep in mind that 

tribes also have procedural and governmental protocols which must be 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 country to be designated separately from the adjacent area are 

aware of the implications for their tribe (e.g., air quality planning and permitting) if their 

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-day letter, 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. If a tribe elects to participate in 

the designations process and submits recommendations, and EPA intends to make any modifications to 

the recommendations, EPA should offer an opportunity for tribal staff to engage in a technical dialogue 

regarding the recommendations. This will ensure that tribal staff members have time to engage with 

their tribal leaders before they receive written notification from EPA. 

No later than 120 days prior to promulgation, EPA should notify the tribe of the modifications EPA 

intends to make to the recommendations. EPA should also provide the tribe with an opportunity to 

submit further technical information that demonstrates why any proposed modification to its 

recommendation may be inappropriate. This notification is usually conducted in writing, via a letter 

(commonly referred to as a "120-day letter"), which would also offer an opportunity for government-togovernment consultation. 

Because of the potential implications for tribes, EPA believes it is important to send similar (but 

modified) 120-day letters 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 country that 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. It is also important to document that consultation has taken place. 
5 

The 120-day letter 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 coordination between states and tribes in the designations process. To that end, courtesy copies of 

the 120-day letters should also be provided to those states whose areas are adjacent to the relevant areas 

of Indian country. In addition, affected tribes should be copied on 120-day letters that are sent to 

relevant states. 

-7 Step 10: Conduct post 120-day letter consultation 

When requested, consultation should be conducted after the 120-day letter 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 statutory requirements to 

promulgate designations within a specified timeframe. It is crucial during consultation for EPA to fully 

inform tribes of this statutory requirement. This will help ensure that consultation is completed by the 

time the final designations are promulgated. Per the 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 in the final action. This feedback should be a formal, written communication 

from a senior EPA official involved to the most 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 of promulgation of a new 

or revised NAAQS unless the Administrator has insufficient information to make a decision in that 

timeframe. The ultimate statutory authority to promulgate designations rests with EPA. If a tribe does 

not submit recommendations, EPA, under its CAA authorities, will promulgate an appropriate 

designation for the relevant area of Indian country. EPA intends to designate all areas on the 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 of the final designations. 

Flexibility Regarding Written Contact with Tribes 

To help ensure timely communication with tribes, it is important for EPA Regional Offices to submit 

written notice to all tribes when initially informing them of the designations process and engaging with 

affected tribes during the 120-day stage in the process. For all other steps in the designations process, 

however, written contact may not always be the most appropriate manner of communication. Each 

Region has the flexibility to tailor their outreach and consultation efforts, as appropriate, to tribes in a 

manner consist~nt with the agreed upon relationship it has developed. However, the structures and 

procedures of tribal governments in the Region should be taken into consideration. 

Questions Regarding This Guidance 

Staff in EPA's Office of Air Quality Planning and Standards are available for assistance throughout the 

designations process. Questions on this guidance may be directed to Kristin Riha at (919) 541-2031 or 

riha.kristin@epa.gov; or Angel McCormack at (919) 541-3588 or mccormack.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 

6 
7 

ATTACHMENT A. 

PROCESS FOR DESIGNATIONS OF INDIAN COUNTRY 

Step Activity 

1 Final NAAQS promulgated and published in Federal Register 

2 Education and outreach conducted by EPA Headquarters and Regional Offices on designations process 

3 Letters sent by EPA Regional Offices to tribes requesting designations recommendation and offering 

consultation. Letters should inform tribes of the following: 

• the promulgation of a new or revised NAAQS; 

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

• the opportunity and process (including timeline) for submitting initial designation recommendations; 

• the date by which EPA requests that tribes notify EPA if they wish to engage in consultation and/or 

participate in the designation process; 

• the potential nonattainment designation for their Indian country (if applicable); 

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

• specific contact information for questions and follow up on the letter 

4 Consultation conducted by EPA Regional Offices 

5 Tribes provide designation recommendations 

6 EPA reviews recommendations and conducts own analysis (e.g., multi-factor analysis) 

7 If EPA intends to modify a tribe's recommendation, EPA Regional Offices offer tribal staff an 

opportunity for technical dialogue 

8 120-day letters (which provide an opportunity for consultation) sent by EPA Regional Offices to the 

following tribes: 

• all tribes that submitted initial designation recommendations; 

• all tribes with Indian country that 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, if they disagree with intended 

designation 

10 Consultation conducted by EPA Regional Offices and additional information evaluated 

11 Final designations determined 

12 Final designations signed by EPA Administrator and published in Federal Register 

13 Education and outreach conducted by EPA Headquarters and Regional Offices on final designations 
8 

ATTACHMENT B. 

SAMPLE TRIBAL DESIGNATIONS CONSULTATION LETTER 

«FIRST» «LAST» 

«TITLE» 

«TRIBE NAME» 

<<ADDRESS» 

«CITY», «FULL_STATE» «ZIP» 

«Dear «TITLE» «LAST Name»: 

(INSERT DATE) 

The purpose of this 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 not required, 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 the p1imary (INSERT ''AND SECONDARY," IF APPLICABLE) 

NAAQS for (INSERT POLLUTANT) to provide increased protection of public 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 of providing the health and/or welfare 

protection intended by the Clean Air Act (CAA). Within two years of promulgation of a new or revised 

NAAQS, EPA must list and designate all areas in the 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 are based 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 of your area for consideration in this 

process. 

[Add if area violating: Preliminarily, we believe your area potentially may be designated nonattainment 

for the (INSERT POLLUTANT) standard] We invite and encourage you to participate in the 

designations process. Please notify us by (INSERT DATE) if you are interested in participating in the 

designations process and/or consulting with us regarding the process. When requested, consultation will 
9 

be conducted in accordance with the EPA Policy on Consultation and Coordination with Indian Tribes 

(www.epa.gov/tribal/consultation/consult-policy.htm). If you choose to participate in the 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. We plan to announce our intended designations no later than 120 

days prior to promulgating the final designations. Following the announcement of intended designations, 

tribes will have an additional opportunity to consult with us on any modifications EPA may propose to a 

tribe's original recommendation. 

In accordance with section 107(d)(l)(B) of the CAA, we are required to issue final designations by no 

later than (INSERT DATE). Our designations will be based on the most recent three calendar years of 

certified, quality-assured monitoring data available, and any other relevant information. If a 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 staff informed of any additional guidance or 

other support activities. We look forward to working with you and your staff to develop area 

designations under the revised (INSERT POLLUTANT) standard(s) in a timely manner. If your 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) of my staff at (INSERT 

TELEPHONE NUMBER) or (INSERT EMAIL). 

Sincerely, 

(INSERT NAME) 

Regional Administrator 

Enclosure 

cc: Tribal environmental director 

Tribal environmental staff 

Appropriate State/local Agencies