1 MEMORANDUM TO DOCKET REGARDING TRIBAL IMPACT
CONSULTATION PER EO 13175

This memorandum outlines the tribal consulta tion and coordination activities that took place related to the Greenhouse Gas Reporti ng Program (GHG RP) and associated rulemakings by OAR’s Climate Change Divi sion (CCD), including the Petroleum and Natural Gas Systems rulemaking (Subpart W) between 2008 and 2010.

Greenhouse Gas Reporting Program and 2009 Final Rule

EPA established the GHG RP on October 30, 2009 through the publication of the final Mandatory Reporting of Greenhouse Gases rule (74 FR 56260). The program requires annual reporting of GHG data from 31 source categories, covering ap proximately 85% of U.S. emissions. The rule does not require cont rol of greenhouse gases, rather it requires only that GHG emissions be reported base d on methods prescribed in the rule 1

.

In order to ensure EPA complied with E. O. 13175 and appropriately evaluated and documented its analysis on the tribal impact s of the 2009 rule, CCD consulted with the American Indian Environment Office (AIEO) prior to the proposal and received guidance on how best to perform consultation and coor dination with tribes. We determined that CCD would first conduct specifi c analysis to determine the tribal impacts of the GHG reporting rule. That analysis di d not indicate that Tribal governments owned or operated any of the likely affected f acilities (i.e., entities that suppl y fuel or chemicals or large facilities that directly em it GHGs). As a result, AIEO recommended that formal consultations with tribal representati ves were not necessary for this rule 2

.

Although we determined there were no direct tribal impacts in the 2009 final rule, we

conducted numerous outreach and coordination activities in consulta tion with AIEO to inform and solicit feedback from tribal repr esentatives during the rulemaking process and to encourage meaningful dialogue between th e Agency and tribal representatives.

During the development phase of the rule, EPA staff provided overview information on the GHG reporting rule to tribes during eight confer ence calls that were organized by the National Tribal Air Association, National In dian Work Group, National Tribal Caucus, and Tribal Air Coordinators. During th e calls, EPA received few questions from participants. Any questions asked tended to fo cus on applicability -- that is, would tribal facilities (in particular casinos ) be covered by the rule? Gi ven the threshold for reporting is 25,000 mtCO 2 e (equivalent to approximately 131 ra ilcars of coal), the rule was not expected to include tribal facilities. Overa ll, there was very limited interest expressed by

1 For more information about the progr am or the 2009 final rule, please see http://www.epa.gov/climatechange /emissions/ghgrulemaking.html

2 Given this rule was proposed and fina lized in 2009, CCD’s inte ractions with AIEO to determine the extent and

breadth of consultation with Indi an Tribal Governments occurred prior to the issuance of the Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation signed on July 30, 2010 by Peter R. Orszag, Director of the Office of Management and Budget. This re cently issued guidance includes specified guidelines for implementing consultation and coordination with Indian Tribal Governments under E.O. 13175.2 the participants during the conf erence calls. After the proposed rule was signed in March 2009, we participated in another conference cal l organized by the trib al air coordinators and reviewed the proposed rule. Again, ther e were very few questions about the rule.

EPA called two Tribal board members of Th e Climate Registry (Campo Kumeyaay and Pueblo –Acoma). These calls focused on their interest in The Climate Registry’s efforts to collect GHG data for future cap and trade programs. There were no substantive questions about the GHG RP.

Other EPA outreach activities to tribal governments included preparing a short article on the GHG reporting rule that was published on the front page of Tribal Air News that was distributed through EPA/ Office of Air Quality Planning and Standards (OAQPS) network of Tribal organizations. EPA gave a presentation on various climate efforts, including the GHG RP, at the National Tribal Conf erence on Environmental Management on June 24-26, 2008. Furthermore, EPA distribu ted copies of a shor t information sheet (available on our website, please see Attachment 1: Guide for Tribal Governments ) at a meeting of the National Tribal Ca ucus. For a complete list of tribal interactions please see

Attachment 2: Outreach on the GHG Reporting Program for Tribal Governments

.

Tribal Comments Received on the Proposed GHG Reporting Rule

Two comments from tribal groups (Fond du L ac Band of Lake Superior Chippewa and the National Tribal Air Association) were submitted during the public comment period for the April 2009 proposal. Their comments we re technical in natu re and similar in content to those received from other groups that submitted comments on the proposed rule (see Attachment 3: Excerpt of Tribal Governments Response to Comments for the Proposed GHG Reporting Rule ).

Petroleum and Natural Gas Sy stems Rule (Subpart W)

Since the 2009 final rule was published, EPA ha s initiated four additional rulemakings to add eleven source categories to the GHG RP. One of those four rulemakings, Petroleum and Natural Gas Systems (Subpart W), was in itially proposed along with the other 31 subparts of the GHG reporting rule in Ap ril 2009 (74 FR 16448) and therefore was included in the broader tribal impact analys is and outreach as detailed above. We received extensive comments on the 2009 Subpa rt W proposal, carefully considered the comments including those from the tribal gr oups, and subsequently re-proposed it in April 2010 (75 FR 18608). We are planning to issue the final rule for Subpart W before

the end of 2010. 3

Following the model established with the 2009 rulemaking, in 2010 we again analyzed Subpart W to determine if ther e would be any tribal impacts 4 . We discovered that one

3 For more information about this rulemaking please see http://www.epa.gov/climatechange/emissions/subpart/w.html

4 We also analyzed our other three rulemakings and determined there are no tribal impacts. For more information about those rulemaking please see: 1) Mandatory Repo rting of Greenhouse Gases From Magnesium Production, Underground Coal Mines, Industrial Wastewater Treatment, Industrial Waste Landfills, Final Rule (75 FR 39736), Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated Gases, Proposed Rule (75 FR 18652),3 tribe, the Southern Ute Indian Tribe, will likely have to report under Subpart W. The Southern Ute Indian Tribe’s private investme nt entity, Southern Ute Indian Tribe Growth Fund (SUGF), is comprised of enterprises that produce, gather, proc ess, and distribute natural gas primarily in the southwestern re gion of the United States. These enterprises may emit over 25,000 mtCO2e (please see Attachment 4: EPA Analysis of the Impact of the Petroleum and Natural Gas Systems Rulemaking on Tribal Lands ).

Based on this analysis, EPA examined the impact of this rule on the tribe and determined that while one tribal producer will likely be required to report unde r the rule, the overall impact to tribal producers and operators that would result from adhering to the requirements of the Subpart W rulemaking will not impose substantial direct compliance costs on tribal governments nor preempt tribal law. EPA has concluded that it has complied with EO 13175. (please see Attachment 5: Concurrence on Consultation

Activities Per EO 13175 ) For a full copy of the SUGFs comments can be found in the Docket for the Greenhouse Gas Repor ting Rule at EP A-HQ-OAR-2009-0923-1297.

Attachments:

1. Guide for Tribal Governments

2. Outreach on the GHG Reporting Program for Tribal Governments

3. Excerpt of Tribal Governments Response to Comments for the Proposed GHG Reporting

Rule

4. EPA Analysis of Impact of the Petroleum and Natural Gas Systems Rulemaking on

Tribal Lands

5. Concurrence on Consultation Activities Per EO 13175

and Mandatory Reporting of Greenhouse Gases: Injecti on and Geologic Sequestration of Carbon Dioxide (75 FR 188575).

# Guide for Tribal Governments

Final Mandatory Reporting of Greenhouse Gases Rule

The Mandatory Reporting of Greenhouse Gases (GHGs) ru le in general requires annual reporting to the

U.S Environmental Protection Agency (EPA) by suppliers of fossil fuels and industrial gases, manufacturers of vehicles and engines, and facilities t hat emit 25,000 metric t ons or more of carbon dioxide equivalent (CO 2 e) per year. The GHG emissions that must be reported are carbon dioxide (CO 2 ), methane (CH 4 ), nitrous oxide (N 2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF 6 ), and other fluorinated compounds.



### Purpose of the Rule

The FY 2008 Consolidated Appropriations Act instruct ed EPA to develop a mandatory reporting program for GHG emissions above appropriate thresholds in all sectors of the U.S. economy. The goal of the reporting program is to provide accurate data to inform future climate change policies.



### How does the rule affect tribes?

Tribal governments are required to submit an annual GHG report if they own or operate a facility that is subject to the rule. For example, a tribe that owns or operates a large industrial emission source such as a cement plant would be required to report emissions under this rulemaking because it is in the “all-in” category (see Table 1 in the General Provisions information sheet). Also, the owner or operator of any privately owned facility that meets the applicability requirements of the rule is required to report.

The rule applies to all types of stationary com bustion equipment (except fo r emergency generators, emergency equipment, agricultural irrigation pumps, and portable equipment) if the aggregate maximumrated heat-input capacity of all stationary fuel combustion units at a facility is 30 million British thermal units or greater per hour (mmBtu/hr) and the fac ility emits 25,000 metric tons or more of CO 2 e per year from all stationary fuel combustion sources.

The rule applies to municipal solid waste landfills that generate CH 4 in amounts equal to 25,000 metric

tons or more of CO 2 e per year. It also applies to power generati on plants that report to the EPA Acid Rain Program or emit 25,000 metric tons or more of CO 2 e per year.

This rule is not expected to have a significant imp act on tribal governments because the affected facilities are not expected to be owned by tribal governments.



### How is the rule being implemented?

Facilities and suppliers that are subject to the rule mu st submit the emission data reports directly to EPA in an electronic format. EPA will verify the data (e.g., perform the quality assurance/quality control checks) by conducting automated checks for data completeness, quality, and consistency and by other means. EPA plans to provide public access to the data by posting electronic data on a Web site in a timely manner after the reporting deadline.

To facilitate implementation and compliance, EPA will conduct an active outreach and technical assistance program, including consultation with tribal governments, as needed or as requested. Outreach efforts include training webinars (see www.epa.gov/climatechange/emi ssions/ghgrulemaking.html ) as

40 CFR 98 1 EPA-430-F-09-060R September 2009well as fact sheets, Frequently Asked Questions, a nd an Applicability Tool to help reporters assess whether they are required to report.



### For More Information

This document is provided solely for informational purposes. It does not provide legal advice, have legally binding effect, or expressly or implicitly creat e, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits in regard to any person. The series of information sheets is intended to assist reporting facilities/owners in understanding key provisions of the final rule.

Visit EPA’s Web site ( www.epa.gov/climatechange/emissions/ghgrulemaking.html ) for more information, including the final preamble and rule , additional information sheets on specific industries, the schedule for training sessions, and other documents and tools. For questions that cannot be answered through the Web site, please contact us at: ghgmrr@epa.gov

.

40 CFR 98 2 EPA-430-F-09-060R September 2009Attachment 2: Outreach on the GHG Reporting Program for Tribal Governments

This is a brief memo to outline the interactio ns and outreach efforts with tribal governments during the development and implementation of the Greenhouse Gas Reporting Program (GHG RP) established by the final Mandatory Reporting of Gree nhouse Gases (40 CFR 98).

During the early development of the GHG RP, initi ated following the Congre ssional directive to EPA in the 2008 Consolidated Appropriations Act to develop an economy wide reporting program, EPA staff took the following actions:

 Consulted with AIEO (Jose Aguto), OAR Tr ibal Liaison (Darrel Harmon), OAP Tribal Liaison (Erika Wilson)

 Prepared a tribal outreach plan

 Participated in 10 conference calls or meetings with tribal representatives:

March 4, 2008 National Tribal Air Association March 6, 2008 National Indian Work Group March 11, 2008 National Tribal Caucus March 13, 2008 Tribal Air Coordinators April 10, 2008 National Tribal Air Association April 23, 2008 Campo Kumeyaay Nation April 25, 2008 Pueblo-Acoma Nation May 7, 2008 Region 2 Indian Nations June 23, 2008 National Tribal Conference on Environmental Management April 9, 2009 Tribal Air Coordinators

 Developed a “Guide for Tribal Governments” Information Sheet posted on the web site

 Received comments from Bill Thompson, Nationa l Tribal Air Association; Mary Munn, Fond du Lac Band of Lake Superior Chippe wa) during public comment period. Comments

addressed coordination with othe r national efforts such as The Climate Registry; third party verification, avoiding double c ounting; anticipating new GHGs ; coordinating with existing state regulations; minimizing reporting burden so as not to increase emissions from nonreporting countries; and minimizing the impact of climate change on tribal lands. We responded to all comments received from tribal representatives in the final rule (October 30, 2009, 74 FR 56260, EPA-HQ-OAR-2008-0508).

 Published a short article on the GHG reporting ru le on the front page of a Tribal newsletter—

Tribal Air News—that was distributed through EPA/OAQPS’s network of Tribal organizations

### Attachment 3: Excerpt of Tribal G overnment Response to Comments Documents for the Proposed GHG Reporting Rule

Summary: Comments submitted by tribal governme nts or tribal organizations addressed general technical issues of the proposed GHG Repor ting Rule. None of

the comments were direct ed at subpart W. Each of the comments and the responses are listed below.

Commenter Name: Mary Munn

Commenter Affiliation: Fond du Lac Ba nd of Lake Superior Chippewa

Document Control Number: EPA-HQ-OAR-2008-0508-0596

Comment: The rule should acknowledge that new or unrecognized GHGs may need to be added to

the list. Response: See the preamble section on Subpart OO, suppliers of industrial GHGs, for the response on fluorinated GHGs to report. EPA retains the ability, through notice and comment rulemaking, to add to the set of GHGs that must be reported.

Comment: Care should be taken to evaluate many of the processes covered in terms of lifecycle GHG emissions and to avoid double counting of emissions Response: For the response reporting of upstream and downstream emissions, see the response to EPA-HQ-OAR-2008-0508-0979.1, excerpt 3. While we are not requiring evaluation or reporting of life-cycle emissions under this rule, EPA recognizes that life cycle analyses can be useful for many purposes such as determining a facility's or product' s overall carbon footprint. Further, availability of upstream and downstream data collected under this rule can help inform and improve life cycle and other analyses.

Comment: The exclusion noted below is a b it troubling. Requiring onerous reporting requirements on imports would aid in reducing thes e imports from countries that are not working on reductions. The only exemption should be give n to imports whose point of manufacture has regulations equal US rules. The ease of reporting for the importer of th e product is irrelevant. These types of loopholes must be eliminated. “We are not proposing to requi re that importers of products containing N 2 O or fluorinated GHGs report their impor ts. In general, we are concerned that it would be difficult for importers to id entify and quantify the GHGs contained in these products and that the number of importers would be high.” (pg 135) Response: Please see Section OO of the preambl e for a response to this comment.

Comment: The Band supports the EPA’s efforts to develop mandatory reporting. Greenhouse gases (GHGs) must be tracked so mitigation efforts will be effective. Mitigating the effects of GHG will be a very complicated challenge but inaction is not an option. Response: EPA thanks the commenter for their input.

Comment: Consistency with existing state regulations must be accommodated. Response: See the preamble summary of comments and responses on the relationship of this rule with other programs for the response regarding consistency.

### Commenter Name: Bill Thompson

Commenter Affiliation: National Tribal Air Association (NTAA)

Document Control Number: EPA-HQ-OAR-2008-0508-1144.1

Comment: The Registry was specifically created and desi gned to serve as a central repository of GHG data for companies operating in North America. By developing one comprehensive high quality corporate-wide GHG inve ntory through the Registry, the goal is for corporations and organizations to be able to use that inventor y to satisfy all of their mandatory GHG reporting requirements throughout North America, as well as support their own efforts to manage, reduce and publicly disclose their GHG emissions. The Registry developed a web-based database application to support voluntar y GHG reporting. This applicati on is known as the Climate Registry Information System (CRIS). The Regist ry is now working with states, tribes and provinces to develop additional functionality by supporting voluntary and mandatory reporting programs thereby creating a “one-stop shop” repor ting approach. This help s avoid duplication of reporting efforts and emphasizes reporter convenience while s till supporting comprehensive GHG reporting. Response: See the preamble, Section II.O on the role of States and relationshi p of this rule to other programs, and preamble S ection V.B.5. on Data Dissemina tion. EPA intends to involve stakeholders as we develop the database. See the response in the pream ble, Section V.B.3 on

Data Collection Methods.

Comment: Given that the proposed reporting rule will establish the foundation for future federal greenhouse gas (GHG) initiatives, an d given the needs of states, I ndian tribes and companies for comprehensive high quality GHG data to inform their decision-making, the NTAA believes that

it is critical that the final ru le works in concert with exis ting GHG programs as well as TCR’s voluntary program to continue to acknowledge, enc ourage and reinforce the activities outside the federal government which complement and enhance a mandatory national GHG reporting program. Our organization theref ore recommends that the EPA: 1. Support state and tribal initiatives to adopt GHG reporti ng requirements that exceed fede ral requirements, and provide

states and tribes with information to craft i nnovative programs to address GHG emissions within their respective jurisdictions; 2. Give states and tr ibes the option to collect the federal mandatory GHG data on behalf of the EPA, if desired; and 3. Support reporting solutions that allow organizations to easily participate in valuable voluntary reporting programs as well as comply with state, tribal and federal mandatory reporting requirements. The NTAA recognizes the opportunity for the EPA to partner with the T CR to develop information technology solutions that will ensure consistency in GHG accounting and reporting across juri sdictions and ease the burden on companies facing differe nt reporting requirements at th e tribal, state, provincial, regional, and federal levels. Response: See the preamble for responses on the relations hip of this rule to other programs and responses on data collection, management and di ssemination. As stated in the preamble, this reporting rule does not replace State or Tribal GHG reporting rules and programs and they are free to collect additional data. EPA is continuing to work with TCR, States, and other programs to develop systems that facilita te efficient data exchange.

Comment: One of the most important aspects of TCR’s voluntary reporting program is its requirement of annual third-party verification of GHG data. Third-part y verification is thesystematic, independent, and documented proces s for the evaluation of a GHG emission report against agreed upon verification criteria. This pr ocess is similar to an audit of financial

statements—it is an external attestation to th e quality and accuracy of the reported emissions. Contrary to the Registry, the proposed GHG repo rting rule relies on se lf-certification from affected facilities with the EPA conducting verifi cation, an approach which the NTAA considers problematic as the data will be entered in a regist ry that will one day interface with a federal capand-trade program and possibly international programs as we ll. For these programs to be effective, they will require data that is fully vetted and accurate. Unfortunately, the Agency is already overtaxed by its day-to-d ay responsibilities, and to ad d to these responsibilities the

verification of emissions from the more than 13,000 facilities covere d under the rule, it’s unlikely that the verification process will be very rigorous or of high quality. The NTAA

therefore recommends that the EP A require third-party verificati on of these emissions, much like TCR, thereby providing better assurances that the registry data will be accurate and also freeing up the Agency to perform its current and very important day-to-day duties, many which impact

the health and welfare of th e nation’s Indian tribes a nd Alaska Native villages. Response: The final rule retains self-certification w ith EPA verification. Fo r the response to the comment regarding the burden ve rification places on the Agency, see response to comment EPAHQ-OAR-2008-0508-0212r, excerpt 5. For the respons e to the comment questioning whether EPA’s verification approach will provide high qu ality data, see the response to comment EPAHQ-OAR-2008-0508-0228q, excerpt 5.

### Attachment 4: EPA Analysis of the Impact of the Petroleum and Natural Gas Systems Rulemaking on Tribal Lands September, 2010

EPA conducted a detailed analysis of th e potential impacts of the Greenhouse Gas Reporting Rule for petroleum and natural gas systems (subpart W) on the petroleum and gas industry including tribal pr oducers and operators. As part of this analysis, EPA did a thorough review and assessment to identify tr ibal producers and operators that may be impacted by this rule and estimate their pote ntial emissions. As a result, EPA determined that based on estimated production capacity, emissions from only one tribal operator, Southern Ute Growth Fund (SUGF), formerly known as Ute Energy LLC, may potentially be above the 25,000 metric ton CO 2 -equivalent (tCO 2 e) reporting threshold. EPA’s analysis confirmed that other tribal producers and operators were well below the reporting threshold. During the public comm ent period, EPA received comments from the SUGF, which were entirely technical in na ture. In addition, EPA determined that the average burden to onshore pr oduction companies is estimated to only be $0.06 per metric

ton CO 2 in the first year of and $0.03 per metric ton CO 2 e in subsequent years (Subpart W Environmental Impact Analysis, Section 5) . A summary of our an alysis is included

below.

Based on this analysis, EPA determined that while one tribal producer will likely be required to report under the rule, the overall im pact to tribal producer s and operators from this reporting rule will not be substantial and direct. The SUGFs comments can be found

in the Docket for the Greenhouse Ga s Reporting Rule at EPA-HQ-OAR-2009-0923-

1297.

Summary of Analysis: EPA conducted a two step analyses to determ ine the impact of this reporting rule on tribal producers and op erators as follows:

1) EPA conducted a threshold analysis to identify potential reporters.

EPA performed an extensive threshold analysis to determine what facilities would cross the 25,000 metric ton CO 2 -equivalent (tCO 2 e) reporting threshold. EPA used a database, provided by HPDI, LLC containi ng actual, historical operato r data by property (e.g. gas and petroleum throughput and well count) colle cted directly from state and local governments. The HPDI property data was aggregated by American Association of Petroleum Geologists (AAPG) basins 1 and operators. The resulting basin, operator

combinations meet the definition of an ons hore production reporting facility in Subpart

W. EPA searched all the facilities for the Na tive American tribes with the top ten highest populations in the U.S. provided by the United States Census Bureau. 2 Of the 981 reporters from onshore production none are tr ibal producers or operators. The Navajo

1 AAPG-CSD Geologic Provinces Code Map: AAPG Bulletin, Prepared by Richard F. Meyer, Laure G. Wallace, and Fred J. Wagner, Jr., Volume 75 , Number 10 (October 1991), pages 1644-1651

2 U.S. Census Bureau (2006) We the People: American Indians and Alaska Natives in the United States

. Retrieved 10 Aug. 2010 at <http://www.census.gov/population/ www/socdemo/race/censr-28.pdf>Nation Oil & Gas Company (NNOGC) has se veral properties reported in the HPDI database. However, the largest NNOGC f acility has been estimated to only emit 1,376

tCO 2 e; well below the reporting threshold. In addition, th e Choctaw Gas Company has an estimated 9,167 tCO 2 e emissions from its facility, and hence would not be required to
report.

2) EPA conducted additional research and found one additional tribal company SUGF likely affected by the rule.

In addition to the threshold analysis desc ribed above, EPA conducted further research using other data sources to de termine which tribal entities may own or operate petroleum and natural gas systems that could be impact ed by this rule. Through this research, the SUGF was identified as the only major produc er of petroleum and natural gas on tribal

lands that could have emissions above the reporting threshold. Further, the Southern Ute Growth Fund was the only trib al operator to provide comm ents on the proposed reporting

rule.Fw: Concurrence on Consultation Activities per EO 13175 for the Greenhouse Gas Reporting Rule Cate Hight

to: kocchi.susanne, imegwu.akachi
10/29/2010 07:17 AM
Cc:
srivastava.amit
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History: This message has been forwarded.

Michelle's concurrence.

______________________________ Cate Hight Special Assistant
Office of Air and Radiation U.S. Environmental Protection Agency
ARN Room 5406 E (202) 564-3277 http://www.epa.gov/air/

Gina, Thanks you for forwarding the memo. I have read the outline for tribal consultation and coordination activities that took place for the Greenhouse Reporting Rule. I concur that we have complied with EO 13175. Thank you,
Michelle Concurrence on Consultation Activities p er EO 13175 for the Greenhouse Gas Reporting Rule

Michelle

DePass to: Gina McCarthy 10/29/2010
02:29 AM

Cc: "Amit Srivastava", "Cate Hight", "Elle Beard", Lakita Stewart, "Mike Stahl" Page 1 of 1

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