1 

MEMORANDUM TO DOCKET REGARDING TRIBAL IMPACT 

CONSULTATION PER EO 13175

This memorandum outlines the tribal consultation and coordination activities that took 

place related to the Greenhouse Gas Reporting Program (GHG RP) and associated 

rulemakings by OAR’s Climate Change Division (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 approximately 85% of 

U.S. emissions. The rule does not require control of greenhouse gases, rather it requires 

only that GHG emissions be reported based on methods prescribed in the rule1. 

In order to ensure EPA complied with E.O. 13175 and appropriately evaluated and 

documented its analysis on the tribal impacts 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 coordination with tribes. We determined that 

CCD would first conduct specific analysis to determine the tribal impacts of the GHG 

reporting rule. That analysis did not indicate that Tribal governments owned or operated 

any of the likely affected facilities (i.e., entities that supply fuel or chemicals or large 

facilities that directly emit GHGs). As a result, AIEO recommended that formal 

consultations with tribal representatives were not necessary for this rule2

. 

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

conducted numerous outreach and coordination activities in consultation with AIEO to 

inform and solicit feedback from tribal representatives during the rulemaking process and 

to encourage meaningful dialogue between the 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 conference calls that were organized by the 

National Tribal Air Association, National Indian Work Group, National Tribal Caucus, 

and Tribal Air Coordinators. During the calls, EPA received few questions from 

participants. Any questions asked tended to focus on applicability -- that is, would tribal 

facilities (in particular casinos) be covered by the rule? Given the threshold for reporting 

is 25,000 mtCO2e (equivalent to approximately 131 railcars of coal), the rule was not 

expected to include tribal facilities. Overall, there was very limited interest expressed by 

 

1

 For more information about the program or the 2009 final rule, please see 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.html 2

 Given this rule was proposed and finalized in 2009, CCD’s interactions with AIEO to determine the extent and 

breadth of consultation with Indian 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 recently issued guidance includes specified guidelines for 

implementing consultation and coordination with Indian Tribal Governments under E.O. 13175. 
2 

the participants during the conference calls. After the proposed rule was signed in March 

2009, we participated in another conference call organized by the tribal air coordinators 

and reviewed the proposed rule. Again, there were very few questions about the rule. 

EPA called two Tribal board members of The 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 Conference on Environmental Management 

on June 24-26, 2008. Furthermore, EPA distributed copies of a short information sheet 

(available on our website, please see Attachment 1: Guide for Tribal Governments) at a 

meeting of the National Tribal Caucus. 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 Lac 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 were technical in nature 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 Systems Rule (Subpart W) 

Since the 2009 final rule was published, EPA has 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 initially proposed along with the other 31 

subparts of the GHG reporting rule in April 2009 (74 FR 16448) and therefore was 

included in the broader tribal impact analysis and outreach as detailed above. We 

received extensive comments on the 2009 Subpart W proposal, carefully considered the 

comments including those from the tribal groups, 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 there would be any tribal impacts4

. 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 Reporting 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 investment entity, Southern Ute Indian Tribe Growth 

Fund (SUGF), is comprised of enterprises that produce, gather, process, and distribute 

natural gas primarily in the southwestern region 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 under 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 Reporting Rule at EPA-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: Injection 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) rule 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 that emit 25,000 metric tons or more of carbon 

dioxide equivalent (CO2e) per year. The GHG emissions that must be reported are carbon dioxide (CO2), 

methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur 

hexafluoride (SF6), and other fluorinated compounds. 

Purpose of the Rule 

The FY 2008 Consolidated Appropriations Act instructed 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 combustion equipment (except for 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 facility emits 25,000 metric tons or more of CO2e per year 

from all stationary fuel combustion sources. 

The rule applies to municipal solid waste landfills that generate CH4 in amounts equal to 25,000 metric 

tons or more of CO2e per year. It also applies to power generation plants that report to the EPA Acid Rain 

Program or emit 25,000 metric tons or more of CO2e per year. 

This rule is not expected to have a significant impact 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 must 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/emissions/ghgrulemaking.html) as 

40 CFR 98 1 EPA-430-F-09-060R 

September 2009 
well as fact sheets, Frequently Asked Questions, and 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 create, 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 2009 
Attachment 2: Outreach on the GHG Reporting Program for Tribal Governments 

This is a brief memo to outline the interactions 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 Greenhouse Gases (40 CFR 98). 

During the early development of the GHG RP, initiated following the Congressional 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 Tribal 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, National Tribal Air Association; Mary Munn, 

Fond du Lac Band of Lake Superior Chippewa) during public comment period. Comments 

addressed coordination with other national efforts such as The Climate Registry; third party 

verification, avoiding double counting; 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 rule 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 Government Response to Comments 

Documents for the Proposed GHG Reporting Rule 

Summary: Comments submitted by tribal governments or tribal organizations 

addressed general technical issues of the proposed GHG Reporting Rule. None of 

the comments were directed at subpart W. Each of the comments and the 

responses are listed below. 

Commenter Name: Mary Munn 

Commenter Affiliation: Fond du Lac Band 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 bit troubling. Requiring onerous reporting 

requirements on imports would aid in reducing these imports from countries that are not working 

on reductions. The only exemption should be given to imports whose point of manufacture has 

regulations equal US rules. The ease of reporting for the importer of the product is irrelevant. 

These types of loopholes must be eliminated. “We are not proposing to require that importers of 

products containing N2O or fluorinated GHGs report their imports. In general, we are concerned 

that it would be difficult for importers to identify 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 preamble 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 designed to serve as a central repository of 

GHG data for companies operating in North America. By developing one comprehensive high 

quality corporate-wide GHG inventory through the Registry, the goal is for corporations and 

organizations to be able to use that inventory 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 voluntary GHG reporting. This application is known as the Climate 

Registry Information System (CRIS). The Registry 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” reporting approach. This helps avoid duplication of 

reporting efforts and emphasizes reporter convenience while still supporting comprehensive 

GHG reporting. 

Response: See the preamble, Section II.O on the role of States and relationship of this rule to 

other programs, and preamble Section V.B.5. on Data Dissemination. EPA intends to involve 

stakeholders as we develop the database. See the response in the preamble, 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, and given the needs of states, Indian tribes and companies for 

comprehensive high quality GHG data to inform their decision-making, the NTAA believes that 

it is critical that the final rule works in concert with existing GHG programs as well as TCR’s 

voluntary program to continue to acknowledge, encourage and reinforce the activities outside the 

federal government which complement and enhance a mandatory national GHG reporting 

program. Our organization therefore recommends that the EPA: 1. Support state and tribal 

initiatives to adopt GHG reporting requirements that exceed federal requirements, and provide 

states and tribes with information to craft innovative programs to address GHG emissions within 

their respective jurisdictions; 2. Give states and tribes 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 TCR to develop information technology solutions 

that will ensure consistency in GHG accounting and reporting across jurisdictions and ease the 

burden on companies facing different reporting requirements at the tribal, state, provincial, 

regional, and federal levels. 

Response: See the preamble for responses on the relationship of this rule to other programs and 

responses on data collection, management and dissemination. 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 facilitate 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-party verification is the 
systematic, independent, and documented process for the evaluation of a GHG emission report 

against agreed upon verification criteria. This process is similar to an audit of financial 

statements—it is an external attestation to the quality and accuracy of the reported emissions. 

Contrary to the Registry, the proposed GHG reporting rule relies on self-certification from 

affected facilities with the EPA conducting verification, an approach which the NTAA considers 

problematic as the data will be entered in a registry that will one day interface with a federal capand-trade program and possibly international programs as well. 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-day responsibilities, and to add to these responsibilities the 

verification of emissions from the more than 13,000 facilities covered under the rule, it’s 

unlikely that the verification process will be very rigorous or of high quality. The NTAA 

therefore recommends that the EPA require third-party verification 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 the nation’s Indian tribes and Alaska Native villages. 

Response: The final rule retains self-certification with EPA verification. For the response to the 

comment regarding the burden verification places on the Agency, see response to comment EPAHQ-OAR-2008-0508-0212r, excerpt 5. For the response to the comment questioning whether 

EPA’s verification approach will provide high quality 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 the potential impacts of the Greenhouse Gas 

Reporting Rule for petroleum and natural gas systems (subpart W) on the petroleum and 

gas industry including tribal producers and operators. As part of this analysis, EPA did a 

thorough review and assessment to identify tribal producers and operators that may be 

impacted by this rule and estimate their potential 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 CO2-equivalent (tCO2e) reporting threshold. 

EPA’s analysis confirmed that other tribal producers and operators were well below the 

reporting threshold. During the public comment period, EPA received comments from 

the SUGF, which were entirely technical in nature. In addition, EPA determined that the 

average burden to onshore production companies is estimated to only be $0.06 per metric 

ton CO2 in the first year of and $0.03 per metric ton CO2e in subsequent years (Subpart 

W Environmental Impact Analysis, Section 5). A summary of our analysis 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 impact to tribal producers and operators from 

this reporting rule will not be substantial and direct. The SUGFs comments can be found 

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

1297. 

Summary of Analysis:

EPA conducted a two step analyses to determine the impact of this reporting rule on 

tribal producers and operators 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 CO2-equivalent (tCO2e) reporting threshold. EPA used a database, 

provided by HPDI, LLC containing actual, historical operator data by property (e.g. gas 

and petroleum throughput and well count) collected directly from state and local 

governments. The HPDI property data was aggregated by American Association of 

Petroleum Geologists (AAPG) basins1

 and operators. The resulting basin, operator 

combinations meet the definition of an onshore production reporting facility in Subpart 

W. EPA searched all the facilities for the Native 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 tribal 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 several properties reported in the HPDI 

database. However, the largest NNOGC facility has been estimated to only emit 1,376 

tCO2e; well below the reporting threshold. In addition, the Choctaw Gas Company has 

an estimated 9,167 tCO2e 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 described above, EPA conducted further research 

using other data sources to determine which tribal entities may own or operate petroleum 

and natural gas systems that could be impacted by this rule. Through this research, the 

SUGF was identified as the only major producer 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 tribal operator to provide comments 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 

Show Details 

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 per 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"

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