We apologize for not having the previous memo stamped with adate, this second copy is dated.

### gEN SHEL.LY 

## THE 

## NAVAJO NATION REX LEE 

## J1 "\it



## P 14201

Gina McCarthy Assistant Administrator Of'1ice ofAir and Radiation

- Mail Code 610IA U.S. Environmental Protection Agency Ariel Rios Building

J200 Pennsylvania Avenue, N.W. Washington, DC 20460



### RE: Request for Government-to-GovernmentConsultation in the Matterofthe USEPA Proposed National Emission Standardsfor Hazardous Air Pollutants from Coal-and Oil-Fired Electric Utility Steam Generating Units, Docket ID No. EPA-HQ-OAR2009-0234

Dear Assistant AdministratorMcCarthy:

As President ofthe Navajo Nation, Iwould like to take this opportunity to request government-to-government consultation in accordance with Executive Order 13175. Consultation amI Coordination with Tribal Governments dated November G, 2000, the IWU EPA Policy.f{)r theAdministration o/EnvironmentalPrograms onIndian Reservatio!1s, and the EPA Policy on Consultation one! Coordination with Im/ian Tribes dC1ted May 4, 20II to discuss aspects ofthe U.S. Environmental Protection Agency ("EPA") proposed rule for "Nationd Emissions Standords/;)rHazardousAirPollutants/i-om Coal-and Oil-FiredElee/ric Utility Steam Generating Units ("NESHAP Rule") published in the federal Registcron May 3, 20 III, with the comment period extended to August4, 2011 2

. In an August 4, 201 I letter that encompassed the Navajo Nation's ("Nation") comments on the proposed NESI-IAP Rule, noticc

was also provided to 

### brAthat the Nation expected EPA to regularly consult with the Nation at'ter the August 4, 2011 comment deadline and throughout the rulemaking process.
My expectations for the government-to-government consultation arc for EPA to become informed about the aspects ofthe proposed NESHAP Rule that will have direct tribal implications (for the Navajo Nation), and for EPA to better understand that the Nation has critical economic interests in this and other future rulemakings that nonetheless have a potential for direct tribal implications. As was expressed in the Nation'scomments on the proposed

1 76 Fed. Reg. 24976

2 76 Fed. Reg. 38590NESI-IAP Rule, the Nation was astonished to read in the May 3,2011**I~ederal** Register notice publishing the proposed NESHAP Rule that with regard to consultation with Indian tribes:

The EPA has concluded Ihat this action may have tribal implications. llowcvcr, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. This proposed rule would impose requirements on owners and operators ofEGU

..\

EPA must recognize the inequities in unilaterally imposing rules Ihat rely principally upon dnta g8thered from groups nnd locations thnt are unrepresentntivc ofthe Nation's conditions as relnled 10 henlth and local economy, and failing to menningfully consult with the Nation as a tribal government to comprehend the extentofpotentin! impairment 10 oureconomy in the face ofthis and future rulemakings.

The Nation acknowledges that airpollutants should be reduced and the Nation is supportive ofmensures that wiII be protective ofhuman health and environment. However, it is disheartening to me that EPA has circumvented nn essential consultation lenet in place lor the purpose ofconferringwith a tribal government to discuss Ihc Nation's intcrests and concerns regarding the proposed NESHAP Rule, and 10 use information from mcaningful consultation discussions in framing a rule Ihat achieves a balancc belween meaningful pollution reduction and a healthy economy for Ihe Nation.

The N8tion appreciates the efforts ofthe Region 9 staffin maintnining awareness or'the Nation's interests in this matter. However, becnuse many aspects ofthe NESHAP Rule rely upon standnrdized national inputs, rather than hom regionnl or tribal attributes, I feel it is necessary to request consultntion dialogue with EPA liendquarters stnft'.

I look forward to yourreply and in working with you in scheduling consultation meetings in this mntter ofimportance to the Nation. Mr. Stephen 8. Etsitty, Executive Director, N8vajo N8tion Environmental Protection Agency, telephone number 928-871­ 7692, is my primnry contnct person in this matter.
Sincerely, 

# a 0; // 

# k?l.-
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# ~-:t**Be~** Shelly,

### Pl~ider~_ _ TI-IE 

### N/\VAJO NA

### Tl N

Cc Deborah Jordan. USEPA Air Division J:lrcd I3lulllcntCld, Regional Adlllinistration, USEPA Region 9 Kimberly Tcehee, Senior Policy Advisor for Nntive American Al'tairs,

White Iiouse DOlllestic Policy Council

3 76 Fed. Reg. 25089Honorable Larry Echohawk, Assistant Secretary for Indian Affairs, Department ofthe Interior SenatorJon Kyl SenatorJohn McCain Representative Paul A. Gos<lr Senator Daniel Akaka, Chairman, Senate Committee on Indian Affairs SenatorJohn Barasso, Ranking Member, Senate Committee on Indian Affairs SenatorJeffBingaman, Chairman, Senate Committee on Energy and Natural Resources Senator Lisa Murkowski, Ranking Member, Senate Committee on Energy and Natural Resources Committee Representative Doc Hasting, Chairman, House Committee on Natural Resources Representative Ed Markey, Ranking Member, House Committee on Natural Resources Representative Don Young, Chairman, 1··louse COlllmittee on Natural Resources Subcommittee on Indian and Alaska Affairs Representative Don Boren, Ranking Member, Iiouse Committee on Natural Resources SubcOl11mittee on Indian and Alaska Affairs