# The Office of Air Quality Planning and Standards



# Consulting

With

Indian Tribal

Governments

April 10, 2009Disclaimer

This document is intended solely for guiding employees of the United States Environmental Protection Agency (EPA) Office of Air Qual ity Planning and Standa rds (OAQPS). This guidance is not a regulation and does not create any legal obligations or any right or trust responsibility. This document doe s not address the requirements of , or procedures called for by, Executive Order (EO) 13175, 65 Fed Reg. 67249 (November 9, 2000). Any EPA approach to implementing EO 13175 will be set forth in a separate document. This document refers to consultation with federally-re cognized Indian tribes that OAQPS undertakes generally, as a matter of policy. This document may be updated as appropriate without notice.

OAQPS Tribal Program Primary Contact

The OAQPS primary contact for all issues relating to tribes is the Community and Tribal Programs Group (CTPG) located in the Outreach a nd Information Division (OID). In addition, there is a cross-divisional OAQPS Tribal team comprised of representatives from the various divisions who can be a resource to you. This document provides OAQPS staff guidance on consulting with federally-recogniz ed tribes; however, it is impor tant that you contact CTPG, or your division tribal representative, early in the process of addressi ng issues relating to tribes for additional guidance and assistance.

2TABLE OF CONTENTS

Introduction .....page 4 Why develop guidance for OAQPS?

What is the difference between tribal co llaboration or outreach and consultation?

Background.....page 6

The Federal Government-Indi an Tribal Relationship

Protocol for EPA Interactions with Tribes

Section I – Screening.....page 7 What does “impacts or effects on tribes” really mean? How do I determine if there are impacts or effects on tribes?

Section II – Collaboration and Outreach.....page 11

Collaboration and Outreach

General Recommendations Steps for Effective Outreach or Collaboration

Section III – Consultation.....page 12 Formal (or Full) Consultation Recommendations for Developi ng Tribal Consultation Plans Steps to Effective Consultation

Appendix.....page 17 Key Terms and Concepts Tribal Organizations EPA Tribal Air Program Contacts OAQPS Tribal Representatives Sample OAQPS Impacts or Effects on Tribes Form Example Tribal Outreach/Collaboration Strategy Sample Consultation Letter

3

# Introduction

Why develop guidance for OAQPS? This guidance describes OAQPS’ views regardin g tribal consultation and will help assist OAQPS personnel in reviewing EPA actions for eff ects on tribes and consulting with tribes. Early and meaningful tribal involvement is consis tent with the federal tr ust responsibility to federally-recognized tribes and furthers the Agen cy’s overall goal of protecting human health

and the environment.

This document introduces OAQPS staff and mana gers to the basics of government-togovernment consultation with American Indian governments within the context of the work performed in OAQPS. It provides a roadmap fo r analyzing whether OAQPS actions may impact or affect tribes and if so, how to proceed. For the purpose of this document, the term “ action ” refers to any policy, guidance, or regulation developed by OAQPS. This can include actions such as the area source regulations, Nati onal Ambient Air Quality Standards (NAAQS) promulgations, program implementation, and guidance development.

This guidance is divided into three sections – screening, collaboration and outreach, and

consultation . The first section, screening , describes how to identify impacts or effects your action may have on tribes. The second section, collaboration and outreach , discusses how to provide information to tribes and, if appropr iate, how to get them involved in the action development process. The third section, consultation , discusses how to consult effectively with

tribes.

COLLABORATION

and
OUTREACH CONSULTATION SCREENING

What is the difference between tribal colla boration or outreach and consultation? It is important to not e the difference between “collaboration and outreach” and

“consultation.” Collaboration and outreach ar e generally conducted with tribal environmental professionals (although other tribal personnel or tribal officials may be involved) in advance of policy, guidance, or rulemaking in which we think tribes will have an interest. The purpose of collaboration and outreach is, among other thi ngs, to assist OAQPS in assessing whether a particular action may have effects on tribes, maki ng consultation with elec ted or duly appointed tribal leaders appropriate. For purposes of this Policy, consultation genera lly involves meetings or discussions with elected or duly appointed tribal leaders or some other, more formal opportunities for those leaders or th eir authorized repres entatives to interact with EPA decisionmakers about the action, potential e ffects on tribes, and options to take such effects into account.

While consultation occurs with tr ibal (elected or du ly appointed) leaders or their authorized representatives, EPA routinely cond ucts a wide variety of interactio ns with tribes (including with

4non-elected leaders, environmental professionals , etc.) in conjunction with the consultation process. Consultation should generally occur as early as possible and before an action is proposed. OAQPS generally sends a letter to tribal leaders with brief information in plain language describing the action and offering the tribal leaders the opportunity for consultation

. See Appendix for a sample consultation letter . The OAQPS Community and Tribal Programs Group (CTPG) is your primary contact, along w ith the OAQPS tribal team member(s) for your division, for helping to decide the most appropriate method fo r consulting with tribes and obtaining tribal views.



## Collabor ation

And
Outreach

Tribal

Environmen tal
Professionals or
Other Personnel

Gain perspective and input into overall tribal

interest and technical
information

Meetings
Conference calls

Newsletters

Website Tribal

Leaders or Authorized Representatives

Broad impacts, tribal impact s and/or

tribal interest

Offer opportunity
for consultat i on via letters (face-to-face meetings if appropriat e ) WITH WHOM

HOW FOR WHAT

WHEN Data gathering

starts early in process Start early and generally before proposal 

## Consultation

What is the relationship betw een t h is cons ultation document and Executive Order 13175? There is a separate process be ing undertaken within EPA to develop guidance im plem enting EO

13175 - “Consultation and Coordination with Indian Tribal Governm e nt s”. Staff should consult

any m a terials that result fro m this EPA pro cess or consult with the OAQP S CTPG staff for further guidance. Com p liance with EO 13175 may ra ise different issues than those covered in

this docum ent. As a result, if final Agency guida nce is released, we intend to consider if this OAQPS guidance docum ent should be revised. EPA’s Am e r ican I ndian Environm ental Office (AIEO) can provide additional inform ati on regarding com p liance with E O 13175.

5

# Background

The interactions between OAQPS and tribal governments are root ed in and guided by three key concepts: tribal sovereignty, the government-to-government rela tionship, and the federal trust responsibility to federa lly-recognized tribes.

Tribal Sovereignty Tribal sovereignty helps us understand with whom we are interacting. Indian tribes retain important sovereign powers over their members and th eir territory. In light of tribal sovereignty and other principles of federal Indian law, states and local gov ernments are generally precluded from exercising jurisdiction in Indian country. 1 This means that as a sovereign government, each tribal government generally sets its own priorities and goals for its membership and territory, including those for environmental pr otection. Thus, tribal sovereign governments generally have an interest in environmental protection issues, includ ing air quality issues, affecting their members a nd territory.

The Government-to-Government Relationship The government-to-government relationship helps us understand how we are to interact. The EPA recognizes the government-to-government relationship between the United States and federally-recognized Indian tribes and acknowledg es Indian tribes as sovereign governments retaining important inherent powers of self-governance. 2 This relationship provides a framework for interacting with tribes as partners to address issues of mutual concern. EPA has significant experience across the Agency working and consulting with tribes on a gove government basis. rnment-toThe Federal Trust Responsibility The trust responsibility helps us understand why we interact with tribes. The federal government has a trust responsibility to federa lly-recognized tribes. Like othe r federal agencies, EPA acts in accordance with that trust responsibility when taking actions that affect tribes.

This responsibility includes cons ulting with tribes and consider ing their interests when taking actions that may affect tribes or their resour ces. In EPA’s landmark 1984 Indian Policy, the Agency stated that the keynote of EPA’s efforts to protect human health and the environment on

Indian reservations “will be to give special considerat ion to tribal interests in making Agency policy, and to insure the close involvement of Tribal Governments in making decisions and managing environmental programs affecting reservation lands.” 3 Similarly, in a 1994

1 Indian country is defined at 18 U.S.C. § 1151 as: “(a) a ll 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-ofway running through the reservation, (b) all dependent I ndian 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.”

2 EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984

3 EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984

6memorandum, the President directed all federal ag encies to assess the impacts of their plans, projects, programs, and activities on tribal trust resources, assure that tribal government rights and concerns are considered during the developm ent of such plans, projects, programs, and activities, and, to the extent practicable and permitted by law, consult with federally-recognized tribal governments before taki ng actions that affect them. 4

Considerations for EPA Interactions with Tribes Each tribe is unique and differs in leadershi p, governmental and economic infrastructure, and culture. As a result, no single set of protocols will meet the needs of all tr ibes. Rather, there are general considerations and guideline s to help staff to approach all tribes with appropriate respect and sincerity. It is recommended that all st aff take the OAQPS training entitled, “Working Effectively with Tribal Governments” to gain a better understanding of relevant federal law, Indian programs and government, and Indian cult ure. An online course is available through the EPA American Indian Environmental Office (AIEO) at http://intranet.epa.gov/o ppts/training/tribal/EPA/mainmenu/launchPage.htm

.

Below are key considerations:

3⁄4 Every tribe is culturally unique. You should respect each tribe’s cultural concerns.
3⁄4 The perception of encroachment on tribal soverei gnty is one of the most significant issues for tribes today. Tribes should, as much as possibl e, be included early in the policy, guidance, or rule development process to help ensure their input is meaningful.
3⁄4 Tribes often have two tiers of government, (e.g., legal/political and traditional). The tribal head is not always the decision–maker. You s hould learn the system of government used by a specific tribe before initiating contact. The OAQPS CTPG and the appropriate Regional Office can assist you with this.
3⁄4 While environmental issues are a concern of most tribes, many tribes have limited familiarity with environmental issues. They have to focus on many issues such as poverty, unemployment, education, and health issues.
3⁄4 There may be only one or a few tribal environmental professionals working on all environmental issues for a tribe. Therefore, a ny apparent lack of inte rest in a particular matter may, in reality, result from limited time and resources.
3⁄4 One size does not fit all. Appropr iate consultation may be differe nt for each tribe; so it is important that the program lead consider different avenues for reaching out to the tribes.
3⁄4 Tribes may be skeptical of federal or state gove rnments so they may not be very receptive to you at first. By taking time to inform the tribes appropriately, you will have gone a long way toward building a fruitful, professional relationship. The OAQP S CTPG can help since they have already developed relati onships with many tribes.

4 Memorandum: Government-to-Government Relations with Native American Tribal Governments, April 29, 1994 (59 Fed. Reg. 22951)

7

# Section I – Screening

The screening phase is designed to help assess whether your action may have any impacts or effects on tribes. This section defines what “imp acts or effects on tribes” are; provides questions to help you assess if there are po tential impacts or effects; and then, if appropriate, recommends how to proceed into the “collaboration and out reach” and “formal consultation” phases.

What does “impacts or effe cts on tribes” really mean? Such effects may include ecological , cultural, human health, economic, or social impacts. This includes any actions that may have an impact on tribal natural resour ces and trust lands; an impact on treaty rights applicable to lands outside reservation boundaries; or an impact on the authority or resources of tribal governments.

How do I assess whether there are impacts or effects on tribes? To help assess whether there are impacts or e ffects on tribes there are a few questions you, the policy, guidance or rule writer, s hould answer. To assist you, these questions can be answered

on an Impacts or Effects on Tribes Form . If you can answer YES to any of the following questions, then your action likely has potential impacts or effect s on tribes and more analysis should be done to consider approp riate means to involve tribes in the process. In addition, if there are potential effect s or impacts on tribes a Tribal Consultation Plan should be developed. The OAQPS CTPG or your division tribal team representative can assist you with this form. (See example Impacts or Effects on Tribes Form and Tribal Consultati on Plan in Appendix.)

The Impacts or Effects on Tribes Form includes these questions:

o Are there effects on:

o tribal governments, communities, cultures and/or their ability to self-govern

o trust resources

o treaty or other tribal rights

o Does this action affect Indian country or is it close enough to poten tially affect Indian country (e.g., transport issues)?

o Does this action establish new federal standards or significant policy or guidance?

o Does this action establish a re gulation not required by statute that may affect tribes or their rights or resources orpropose a regulation which pre-empts tribal law?

If you cannot clearly answer NO to all of the questions lis ted above, then you should begin thinking about how to proceed with tribal out reach. You should contact the OAQPS CTPG, or your OAQPS division tribal team re presentative. Together, you will assess whether there are potential impacts or effects on tr ibes and if so, how to effectiv ely collaborate and consult with affected tribes. There also may be situations when a tribe requests an opportunity to consult even if there are no clear impacts or effects on tr ibes. In this case, you should have discussions with the tribe regarding the act ion. The OAQPS CTPG can provide supplemental information to assist you with the specific steps of the process and to initiate appropria te tribal contact.

8The following flow chart can be used to further assist you in determining if there are impacts or

effects on tribes:

If at least

one answer is YES 

## Incorporating Tribal Considerations into
OAQPS A ctions

Project lead should consider each question:

• Does your action have effects on: tribal governments and/or their ability to self govern, trust resources, and/or treaty or other rights?

• Does this action affect I ndian country or is it close enough to potentially affect Indian country (e.g., transport issues)?

• Does this action establish new federal standards or significant policy or guidance?

• Does this action establis h a regulation not required by statute that may affect tribes or their rights or resources or propose a regulation which preempts
tribal law?

Consult the OAQPS Community & Tribal Programs Group or your division tribal team representative for assistance with this screening.

Consultation may not be called for, however, some form of outreach may be recommended, based on other policies such as EPA’s 1984 Indian Policy. Consultation with tribal officials is necessary.

Consult OAQPS Community & Tribal Programs Group for assistance. If all

answers are NO

The chart on the next page is for those actions which have been designated as either Tier 1 or Tier 2 rules under the Agency’s Action Devel opment Process (ADP). There is a greater possibility that rules designated as Tier 1 or Tier 2 may have tribal impacts or effects. The chart depicts the Agency’s official action development process; howe ver, we have added boxes, designated in red , to show when tribal considerations s hould be incorporated into the Agency’s official process for OAQPS rules. This is not in tended to amend or alter the Agency’s official ADP. Rather, the additional information is de signed to provide separate guidance for OAQPS

staff to assist in the considera tion of effects on, and outreach to, tr ibes in the context of relevant OAQPS actions.

910

# Section II – Collaboration and Outreach

Collaboration and Outreach If an OAQPS policy, guidance, or rulemaking action ma y affect tribes or if tribes are interested in learning more, collaboration and outreach ar e important next steps. Collaboration and outreach provide an opportunity for EPA to inte ract with tribal envi ronmental professionals (TEP) and tribal personnel on the potential impacts or effects. Th is is an opportunity for EPA totalk with the TEPs to assist EPA in its assessment of whether to call for government-togovernment consultation. When an action is targ eted directly toward tribes, has impacts or effects on tribes or Indian country communities, or has broad tribal in terest, OAQPS staff should

consult with the tribes. Outreach activities can be tailored to the spec ific needs of your action, ranging from notification to the tr ibes via a listserve to estab lishing a formal work group. The OAQPS CTPG can help you design the appr opriate scope of interaction.

General Recommendations

o Identify Issues, Interests, and Impacts

o What are the issues?

o What are the critical time lines and events?

o Who is involved?

o Who has an interest?

o Who is potentially impacted?

o Involve Tribes Early in the Process

o The earlier the better.

o Carefully set up work groups 5 to ensure needed expertise.

o Outreach schedules should reflect critical and appropriate points for interaction.

o Allow for a full range of opinions and interactions.

o Plan Strategies and Mechanisms

o Consider strategies abou t appropriate audience, me thod of communication, and

content.

o Involve EPA Regional Offices

o Regional tribal and program offices should be actively involved in identifying and working with tribal officials and personnel from their Regions. One way to raise issues quickly is to work with the sub-lead Region for tribal air issues and schedule time on one of the monthly Tr ibal Air Coordinator (TAC) calls.

5 Meetings with outside organizations may be subject to the Federal Advisory Committee Act (FACA). Consult your Office of General attorney to determine whether FACA applies to your meeting.

11Steps for Effective Collaboration and Outreach

1. Identify which tribes may be affected.

a. Initiate discussions with OAQPS CTPG, di vision tribal team representative, and appropriate EPA Regi onal Office Tribal Air Coordinators.

b. Identify type of tribal governme nt and appropriate tribal contacts.

c. Identify special tribal considerations and protocols (e.g., subsistence seasons) for

those tribes.

2. Write a fact sheet in plain English. a. Describe the action being considered (i.e., policy, guidance, rulemaking). b. Describe how the action may imp act or affect tribal governments.

c. Include information on how to contac t you and receive additional information.

3. Notify tribal environmental professionals.

a. Work with the OAQPS CTPG and the EPA Regional Office where the tribe is located to develop an outreach/communication strategy.

b. Notify all affected tribal govern ments at an early stage by disseminating early

information to tribal officials on action de velopment. In addition to sending out the fact sheet described above, you can al so send out a listserv or Tribal Air Website message with EPA contact’s addre ss, participate in National Tribal Air Association (NTAA) monthly calls, work with National Tribal Environmental Council (NTEC) and EPA Regional tribal contacts, and send information to Regional Tribal Operations Committee (RTOC) contacts.

4. Consultation with tribal leaders where appropriate.

a. If consultation is called for, please proceed to Section III of this document, Consultation, for more information on how to proceed. If not, continue coordination through updates and consider ation of input from TEPs and other tribal personnel at an appropr iate degree of specificity.



# Section III - Consultation

Formal (or Full) Consultation Consultation is built upon the exchange of ideas, not simply providing information, and is generally not a one-time event, but an ongoing process. Consulta tion is called for, among other potential actions, any policy, guidance, or rule that is 1) targeted directly toward tribes; 2) has impacts or effects on tribes or Indian country communities; or 3) has broad tribal interest. Examples include the Tribal Authority Rule, New Source Review Rule for Indian Country, Mercury Maximum Achievable Control Techno logy Standards for Utilities, Landfill Maximum Achievable Control Technology Sta ndards, Tribal Implementation Pl an Guideline, and Rules for Implementing New National Ambient Air Quality Standards. While EPA Headquarters (i.e., OAQPS) consults on its actions, staff should work closely with the EPA Regional Offices. Formal consultations, including any letters sent to tribes, are initia ted by the OAQPS Division Director level or higher.

12Earlier it was stated that OAQPS staff should contact TEPs to assist in assessing whether consultation is called for in advance of any action for which we think tribes will have an interest. If after doing that, we find that a few TEPs ar e interested or concer ned about an action and OAQPS believes that tribes would be affected, OAQPS would generally send a letter to tribal leaders of those potentially affect ed tribes, providing an overview of the action and offering an opportunity for consultation. This action should be taken prior to proposing the rule. Early communication is important. The goal is to have a dialogue between informed tribal leaders, or their authorized representatives, and federal o fficials to help OAQPS appropriately consider tribal views in developing and finalizing the federal action.

Recommendations for Developing Tribal Consultation Plans The outreach/community strategy completed in Section II as part of the collaboration and outreach process, can now be used to develop a tribal consultation pl an. This plan serves as the road map for the formal consultation process. Below are issues to c onsider when developing your plan. AIEO is the principa l point of contact for coordinati ng the interaction of tribes and other EPA offices and officials; however, your first point of contact is the OAQPS CTPG and your division tribal representative.

Issues to Consider

o The Inter-governmental Stakeholders

o Who are the interested prin cipal tribal government stak eholders likely to be affected by this action?

o Are there tribal elected officials who ha ve expressed interest in the action under development?

o Which, if any, tribal environmental or technical agencies will administer the

action?

o What other tribal governmental entitie s will have to take action (e.g., pass legislation, raise funds, be s ubject to requirements)?

o Are there any other tribal government agencies (e.g., economic development, transportation, agriculture) likely to be affected or have an interest?

o Governmental Impacts

o What is known about costs and other implications of the action?

o Will the action impact different tribal enti ties to different degrees or in different ways?

o Unique Impacts

o Will the action have disproportionate impact s on any tribes in a particular region of the country?

o Will the action affect tribes in urban, rural, or other areas differently?

o How will outreach and consultation efforts be targeted and tailored in light of these unique or dispr oportionate impacts?

o Will tribes be affected or be presented with unique compliance issues?

o What steps will be taken to notify tribes of the planned action and to secure their participation?

13o Major Issues/Areas of Concern

o What information will tribal government officials need to help them understand the potential implications of the proposed action and why they should (or may) be

interested?

o What issues are likely to be major con cerns to the different tribal government

officials?

o What steps should be taken to identify additional issues?

o Tribal Participants

o Are tribal organizations such as NCAI, NTAA, NTEC, ITCA, ITCG (see appendix for acronyms), and other consortia involved?

o What EPA organizations provide /offer tribal perspectives?

o How can EPA solicit tribal government views?

o How can other individual tribal officials interested in the rule be identified?

o How can EPA regional offices assist in securing their participation?

o Outreach/Collaboration Activities

o What outreach and collaboration effo rts have already been undertaken?

o Are there tribes potentially in terested that have not yet been informed about the proposed action?

o What is the plan for dissemina ting information about the action?

o What kinds of information materials are needed?

o How can tribal government officials be i nvolved in resolving i ssues and areas of

concern?

o How and when are tribal o fficials informed about the results of cost and other impact analyses?

o Expertise Needed

o What kinds of expertise from tribal o fficials would be especially helpful in designing this action? Examples include:

 Experts in particular t echnologies, industries, or scientific disciplines;

 Economists, lawyers, or policy analysts specializing in particular areas;

and

 Managers with expertise administering comparable programs at another level of government.

o Schedule/Resources

o What is the schedule for key out reach and consultation activities?

o What resources – staff, extramural funds, or other resources – may be needed to carry out the consultation plan?

o What assistance is needed from othe r EPA offices (e.g., Regions, Office of General Counsel, Office of Policy, Economics, and Innovation, or the American Indian Environmental Office)?

14Steps to Effective Consultation

1. Develop a Tribal Consultation Plan which serv es as the road map for consulting with the

tribes.

a. Using the outreach/collaborat ion strategy developed in Section II, a consultation plan can now be developed fo r the consultation phase.

b. Develop and send out consulta tion letters to leaders of affected tribes providing them an opportunity to consult (see appendix for example consultation letter).

2. Continue discussions with OAQPS CTPG, O AQPS tribal division representative, and EPA Regional Office Trib al Air Coordinators.

3. Communicate with Tribes.

a. Consult with tribes early in the pr ocess of developing the action(s).

i. In some cases, you may be working w ith only one or two tribes, and you

should be able to communicate and cons ult with them directly. In other cases, where the action is less developed or there is greater tribal interest, you may need to communicate with a much larger group. In addition to one-on-one meetings, reaching a la rger tribal audience can be accomplished through national meetings and with the assistance of the National Congress of American I ndians and the National Tribal Operations Committee.

b. Consider any responses received from the c onsultation letters sent out to the tribal

letters.

c. Explain to tribes how you intend to respond to the concerns they raised in the consultation process and when you plan to get back to them.

4. Make available to the Office of Manageme nt and Budget (OMB), as appropriate, information submitted by tribes.

a. As you move closer to finalizing you r action, make available information submitted by the tribes through the consu ltation and, as appropriate, information submitted by TEPs or other tribal personnel through the outreach and collaboration process to OMB.

b. Once you have determined the status of your action under Executive Order 13175, you need to refer to Preamble Templates for Executive Order 13175:

Consultation and Coordination wi th Indian Tribal Governments at http://intranet.epa.gov/adplib rary/adp-templates/index.htm to determine the appropriate template to use in your action.

c. If there are potential impacts (refer to page 8), contact the EPA American Indian Environmental Office (AIEO), in th e final stage of the action.

i. A Tribal Impact Summary Statement may have to be developed and in return, a certification letter from th e Director of AIEO, may have to be

submitted with the final action.

155. Document the Consultation.

a. If consultation was conducted, briefly discu ss in the relevant section of your rule preamble or document background/summary: the consultation process, the tribal concerns, and how you addressed thes e concerns or why you did not.

b. Ensure that all information is submitted to the docket for proper recordkeeping.

16

# Appendix

KEY TERMS & CONCEPTS

Authorized Inter-Tribal Organization An “authorized inter-tribal organization” is an orga nization that has been officially designated by the elected or duly-appointed leader of a federally rec ognized tribal government to represent that tribe on a particular issue.

Consultation Consultation generally consists of meaningful and timely communication between EPA officials and elected or duly appointed tribal government officials or their authorized representatives in developing Agency actions that affect tribes. Consultation me ans open sharing of information, the full expression of tribal and EPA views, a commitment to consider tribal interests in decision-making, and respect for tribal self-government and sovereignty. Consultation is different from input and interaction or collaboration and outreach: consultation is govern ment-to-government, whereas input and interaction or collaboration and outreach can be with communities, environmental staff, and others.

Consultation versus Community Involvement It is important to distinguish between gove rnment-to-government consultation and community involvement activities. Community involvement typi cally involves members of the tribal community directly and is normally separate from consultation or discussions with the tribal government.

Consultation occurs in addition to th e public participation process.

Federal Indian Law “Federal Indian Law” refers to the body of law that defines the unique relationship between the United States and the Indian tribes, including federally-r ecognized Alaska Native entities. Federal Indian Law addresses, among other things, tribal sovereignty, tribal treaty rights, and jurisdiction in Indian country.

Federal Indian Trust Responsibility The federal government has a “trust responsibility” to federally recognized Indian tribes that arises from treaties, statutes, executive orders, and the historical relations between the United States and Indian tribes. Like other federal agencies, EPA acts in accordan ce with the trust responsibility – which generally includes consulting with and considering the interest s of tribes – when taking actions that may affect

tribes or their resources.

Government-to-Government Relationship The relationship between federally-recognized Indian tribal governments and the federal government is a unique one. Indian tribes possess an inherent sovere ignty over their members and territories. Because each Indian tribe is a sovereign government, EPA officials (and those from other federal agencies)

interact with tribal officials as representatives of their government. EPA consults – on a government-togovernment basis – with federally-recognized tribes.

Indian country This term is defined by federal statute at 18 U.S.C. § 1151 to include all land within federal Indian reservations, dependent Indian communities, and certain lands or allotments owne d by Indians. Indian country includes lands held in trust by the United States for the benefit of an Indian tribe that have not

17been formally designated as reservations. Tribal land issues can be quite complicated; therefore, you should talk to EPA Regional Indian Program represen tatives, Regional Counsel, or the Office of General Counsel for more in-depth information.

Indian Tribe A federally recognized “Indian tribe” is an entity that appears on the list of federally recognized tribes published by the U.S. Bureau of Indian Affairs (BIA) of the U.S. Department of the Interior (DOI). It is generally a community of Indians who are ethnologically similar, but who as a community also exist in a legal-political sense.

Indian tribal governments generally determine who is a member of an Indian tribe by ensuring that they meet specific tribal membership criteria. Each tribe has its own laws a nd methods of determining membership, but typically it is based on ancestry.

Multiple Tribes

More than one tribe could have interest in the same ar ea. In this type of situation, EPA should offer to consult with all affected tribes. In some cases, tr ibes may form a group to speak with one unified voice. If this does not happen, EPA should continue to consult with all affected tribes.

Native Americans (also referred to as Indi an, American Indian, and Alaska Native) The terms “Native American,” “American Indian,” “Indian” and “Alaska Native” can be used in a very broad sense to describe members of ethnically distinct groups of United States citizens who are indigenous to North America. All of these terms are generally accepted, but it is preferable to use individual tribal affiliation whenever possible.

Native Hawaiians

“Native Hawaiians” can be described as Native Amer ican because they are indigenous to their areas and they are not descendents of European colonizers. The Native Hawaiian community generally has a different relationship with the U.S. Government. Y ou should consult your tribal legal and policy experts for more information where issues regarding Native Hawaiians may be raised.

Reservations “Indian reservations” are a subset of Indian country (see 18 U.S.C. § 1151). Reservations may have been set aside from the public domain by an act of Congress, executive order, or treaty. The exterior boundaries of reservations may include lands not ow ned by the tribe, including, but not limited to,

allotments and nonmembe r-owned fee lands.

Sovereignty “Sovereignty” is the authority that a government draw s upon to govern. In the United States, tribes retain important aspects of sovereignty and authority over their members and territory.

Treaties Through treaties, Indian nations ceded certain lands and rights to the United States and reserved certain lands (“reservations”) and rights for themselves. In many treaties, tribal governments reserved hunting, fishing, and gathering rights in territories beyond the land that they reserved for occupation.

Tribal Air Coordinators (TAC) Each Regional Office has a tribal air coordinator that participates in monthly conference calls organized by the sub-lead EPA Region for Tribal Air Issues. These regional contacts (see Contacts List in appendix) are familiar with tribal issues specific to the tribes in their region and can serve as a good resource in early planning effort s and follow-up consultation.

18Tribal Area “Tribal area” is a generic term adapted from concepts used by the U.S. Census Bureau to discuss where

Native Americans live. It includes American Indi an reservations, Alaska Native Villages, and other special types of areas that represent ongoing centers of tribal culture.

Tribal Authority Rule The “Tribal Authority Rule” refers to the EPA regula tion that implements the provisions of the Clean Air Act that authorize eligible tribes to implement trib al air quality programs under the Clean Air Act in a

manner similar to states. The final Tribal Aut hority Rule was published at 63 Fed. Reg. 7254 (February 12, 1998).

Tribal Consultation

See definition of “Consultation.”

Tribal Environmental Professional (TEP ) “Tribal Environmental Professionals” are employed by the tribal government to work on environmental issues. They cannot make decisions on behalf of the tribal governments but they are knowledgeable of the day-to-day environmental concerns of the tribes and should be consulted with on a regular basis.

Tribal Governments Most tribes have their own governments, which are generally formed to suit the particular tribe’s practical, cultural, political, or religious needs. Many tribal government structures combine traditional

features with Western forms. More traditional tr ibal governments may select political officials by consensus with decisions based on family, clan, or religious law; while other tribal governments may use a more democratic process to elect officials.

Tribal Officials “Tribal officials” for the purpose of this policy means an elected or duly appointed official of Indian tribal governments or their authorized representatives or authorized inter-tribal organizations

. EPA generally recognizes an inter-tribal organization to be authorized to represent a tribal government after receiving confirmation from an elected or dul y-appointed tribal leader that the inter-tribal organization is authorized to consult with EPA on the tribe’s behalf. Such confirmation should be provided in writing.

Trust Responsibility See Federal Trust Responsibility.

19RELEVANT TRIBAL AND EPA ORGANIZATIONS (referenced in this document)

AIEO – The American Indi an Environmental Office AIEO is part of the U.S. EPA. The AIEO, working with its regional components, coordinates the Agency-wide effort to strengthen public health and environmental protection in Indian country. AIEO oversees development and implementation of the Agency’s Indian policy.

ITCA – Inter-Tribal Council of Arizona ITCA provides a united effort to promote Indian self-reliance through public policy development.

ITEC - Inter-Tribal Environ mental Council of Oklahoma The ITEC was formed in 1992 by the signing of a Memorandum of Understanding between 20 Oklahoma tribes and EPA Region 6. Since that time other tribes have joined and the current membership is 31.

NCAI – National Congress of American Indians NCAI is a representative national Indian organization, servin g more than three quarters of the American Indian and Alaska Native population.

NTAA – National Tribal Air Association NTAA's mission is to advance air quality management policies and programs, consistent with the needs, interests, and unique legal status of American Indian Tribes, Alaska Natives and Native Hawaiians.

NTEC – National Tribal Environmental Council NTEC was formed in 1992 and is a membership organizatio n dedicated to working with and assisting tribes in the protection and preservation of the reservation environment. NTEC is open to membership to federally-recognized Indian tribes and currently has 182 member tribes.

NTOC – National Trib al Operations Committee The NTOC was formed in February 1994 in order to improve communication and build stronger partnerships between the tribes and EPA. NTOC comprises 19 tribal leaders or their environmental program managers (the National Tribal Caucus) and EPA’s Senior Leadership Team, including the Administrator, the Deputy Administrator, and the Assistan t and Regional Administrators.

RTOC – Regional Tribal Operations Committee Federally-recognized tribes reside in nine of the Agency’s 10 regions (Region 3 is the exception). Each of these nine regions has appointed a Regional Indian Coordinator, and some of the regions have established an Indian program office. Some regions have a formal Regional Tribal Operations Committee comprised of tribes residing within that region.

TAMS - Tribal Air Monitoring Support Center The TAMS Center is a partnership between OAR offices, OAQPS, and ORIA with support from NAU’s Institute for Tribal Environmental Professionals (ITEP). The mission of the TAMS Center is to develop the tribal capacity to assess, understand, and prevent environmental im pacts that adversely affect health, culture, and natural

resources.

2021 EPA TRIBAL AIR PROGRAM CONTACTS

Office of Air and Radiation

Darrel Harmon

202-564-7416 harmon.darrel@epa.gov

Office of Air Quality Planning

and Standards Laura McKelvey

919-541-5497 mckelvey.laura@epa.gov

Office of Atmospheric Programs

Erika Wilson

202-343-9113 wilson.erika@epa.gov

Office of Transportation & Air Quality

Elizabeth Etchells

202-564-1686 etchells.elizabeth@epa.gov

Region 1

Ida McDonnell

617-918-1653 mcdonnell.ida@epa.gov

Region 2

Gavin Lau

212-637-3717 lau.gavin@epa.gov

Region 4

Brandi Jenkins

404-562-9124 jenkins.brandi@epa.gov

Gracy Danois

404-562-9119 danois.gracy@epa.gov Region 5 Benjamin Giwojna (MN)

312-886-0247 giwojna.benjamin@epa.gov

Stephanie Cheaney (MI)

312-886-3509 cheaney.stephanie@epa.gov

Sharleen Getschmann (WI)

312-353-3486 getschmann.sharleen@epa.gov

Region 6 Elizabeth Braziel (NM, TX)

214-665-6449 braziel.elizabeth@epa.gov

Aunjanee Gautreaux

214-665-7127 gautreaux.aunjanee@epa.gov

Region 7

Heather Hamilton

913-551-7039 hamilton.heather@epa.gov

Region 8 Alexis North (Lead)

303-312-7005 north.alexis@epa.gov

Claudia Smith

303-312-6520 smith.claudia@epa.gov

Kathleen Paser

303-312-6526 paser.kathleen@epa.gov Region 9

Sara Bartholomew

415-947-4100 bartholomew.sara@epa.gov

Maeve Foley

415-972-4105 foley.maeve@epa.gov

Stephanie Valentine

415-972-3014 valentine.stephanie@epa.gov

Asia Yeary

415-972-3831 yeary.asia@epa.gov

Region 10 Mary Manous (Lead)

206-553-1059 manous.mary@epa.gov

Angel McCormack

206-553-1498 mccormack.angel@epa.gov

Debra Suzuki

206-553-0985 suzuki.debra@epa.gov

Justin Spenillo

206-553-6125 spenillo.justin@epa.govOAQPS TRIBAL REPRESENTATIVES

Office of Air Quality Planning and Standards, Overall Representative Laura McKelvey

919-541-5497 mckelvey.laura@epa.gov

Air Quality Assessment Division Mike Papp

919-541- 2408 papp.michael @epa.gov

Air Quality Policy Division

Tom Link

919-541-5456

link.tom @epa.gov

Jessica Montanez

919-541-3407 montanez.jessica@epa.gov

Health and Environmental Impacts Division

Christine Davis

919-541-1565 davis.christine@epa.gov Outreach and Information Division Lena “Vickey” Epps-Price

919-541-5573 epps-price.lena@epa.gov

Yvonne W. Johnson

919-541-3921 johnson.yvonnew @epa.gov

Tami Laplante

919-541-1915 laplante.tami@epa.gov

Nancy Mayer

919-541-5390 mayer.nancy@epa.gov

Melissa McCullough

919-541-5646 mccullough.melissa@epa.gov

Sector Policies and Programs Division Charlene Spells

919-541-5255 spells.charlene @epa.gov

22SAMPLE

OAQPS IMPACTS OR EFFECTS ON TRIBES FORM (to be used for OAQPS actions – regulation, policy, or guidance)

Name of Action: ______________________________________________________________

Project Lead Name & Number: ___________________________________________________

Division & Group: _____________________________________________________________

Action Stage (e.g., data gathering, pre- proposal, proposal, final, other) ____________________

Estimated date of next major action (e.g., proposal or final) _____________________________

To determine if there are any potential 

### impacts or effects on tribes


### , please address the following questions: (If the answer is YES and more space is needed please explain on an attached sheet.)

o Number and location of sources____________________________________________

o Pollutants addressed_____________________________________________________

o Are there effects on:

o tribal governments, communities, cultures and/or their ability to self-govern

_______________________________
o trust resources____________________

o treaty or other tribal rights_______________

o Does this action affect Indian country oris it closes enough to pot entially affect Indian country (e.g., transport issues)? ____________________

o Does this action establish new federal st andards or significant policy or guidance?

___________________

o Does this action establish a regulation not required by stat ute that may affect tribes or their rights or resources or propose a regulation which pre-empts tribal law?

________________________

Refer to the OAQPS Consulting with Indian Tri bal Governments Guidance for more information. Please submit completed form to your di vision tribal team representative or OAQPS Outreach and Information Division , Community and Tribal Programs Group (MD-C-304-03).

23EXAMPLE TRIBAL OUTREACH/COLLABORATION STRATEGY

1) Early in Action Development Process

a. Contact sub-lead EPA Region and give brief overview of action on monthly TAC

call

b. Meet with Tribal Environmental Prof essionals (TEP) on monthly NTAA calls, RTOC and NTEC meetings or other tribal forum to pr esent key concepts of the action and get input on tribal impacts,

i. Work with OAQPS/CTPG to identify appropriate forum

ii. OAQPS/CTPG can help you communicate with the tribes and EPA Regional tribal contacts as well as de velop communication materials that are tribal friendly

2) Prior to Proposal of Action

a. Meet with tribal personnel to present th e key concepts in the proposal. (Note: Generally this is done with TEP staff, but if there are relevant tribal impacts or interest, a formal opportunity for consultation with elected tribal officials or their authorized representatives should take place.)

i. If consultation is called for, send letters to tribal leaders and key consortia to provide an opportunity for consultation

1. Consultation letters should come fr om the division director or a higher level

2. Copy TEP so they are aware of the letter

ii. Respond to tribal leaders as appropr iate (Note: they may defer to coordination with TEP.) If they re quest conference calls or face-to-face meetings, we should work with the trib e to set those up as appropriate.

1. Note: the Regional Office can help with face-to-face meetings

2. If all agree, consultation may take place at a joint meeting which includes Regional TOC.

3) After Proposal of Action

a. Outreach to explain the content of the proposal and encourage input from the tribes should be ongoing in the TAC calls, NTAA and NTEC calls, RTOC meetings and other forums. Additional consultation with tribal leaders or their authorized representatives shoul d be conducted as appropriate.

b. Mechanisms for highlighting the proposal:

i. Tribal Air Newsletter

ii. Tribal Air Website at http://www.epa.gov/air/tribal/

iii. Tribal List serve

4) After Final Action

a. Outreach to explain the c ontent of the final rule

b. Mechanisms for highlighting the final decision and identifying next steps:

i. Tribal Air Newsletter

ii. Tribal Air Website at http://www.epa.gov/air/tribal/

iii. Tribal List serve

24SAMPLE CONSULTATION LETTER 6

May 5, 2008

«FIRST» «LAST»

«TITLE» «TRIBE_NAME»

«ADDRESS» «CITY», «FULL_STATE» «ZIP»

«GreetingLine»:

On May 1, 2008, the U.S. Environmental Prot ection Agency proposed to strengthen the national ambient air quality standard s (NAAQS) for lead. The purpose of this letter is to invite you to consult on this proposal.

The proposed rule will establish new uniform na tional standards for lead in ambient air to protect public health. EPA proposes to revise the level of the primary (hea lth-based) standard to within the range of 0.10 to 0.30 micrograms pe r cubic meter (μg/m3), and to revise the secondary (welfare-based) standard to be identica l in all respects to the primary standard. The proposed standards will signifi cantly strengthen the standard s of 1.5 μg/m3 set in 1978.

In addition to proposing to change the leve l of the standard, EPA is also proposing to improve the monitoring network and outlining an approach and timeline for implementing the revisions to the lead standards. The proposed rule and accompanying materials, including maps relating to current air quality a nd emissions of lead from stati onary sources in the U.S., are

available on EPA’s website at http://www.epa.gov/air/lead

.

Though lead emissions have declined signifi cantly in the U.S. following the permanent phase-out of leaded gasoline, ther e are still a variety of lead sour ces in the U.S. and even small amounts of lead in the air may pose a public health ri sk. Lead in the air can be inhaled or, after it settles out of the air, can be i ngested. It causes a variety of e ffects at low levels of exposure including effects on the blood, central nervous system, cardiovascular system, kidneys, and immune system. Children are part icularly sensitive to the effect s of lead. Exposures to low levels of lead early in life are associated with effects on IQ, learning, memory, and behavior.

EPA does not believe the proposed rule will have adverse implications for Tribes because

it increases the level of environm ental protection nationwide. Howe ver, to ensure that your lands and interests are protected, we open the door to consultation and we lcome any additional information about the standards or pote ntial impacts you would like to share.

EPA will accept comment for 60 days after the proposed rule is published in the Federal Register. EPA will also hold publ ic hearings on June 12, 2008, in Baltimore, Maryland, and St.

6 While this sample was sent after proposal of the rule (which is a time when continuing tribal consultation may be appropriate), tribal consultation sh ould ideally begin earlier in the process and prior to proposal.

2526 Louis, Missouri. We will be available to discuss the proposed revisions in other settings as well, such as during the next National Tribal Air A ssociation/EPA joint conf erence call on air quality, at the 2008 National Tribal Forum on Air Quality in June, and with Regi onal Tribal Operations Committees. If you prefer to init iate a formal consultation with EPA on this rule, please contact Laura McKelvey at (919) 541-5497 orDeirdre Murphy at (919) 541-0729.

We want your input to assure that we devel op the best rules possibl e. We endeavor to conduct our efforts with sensitivity to the needs a nd culture of Tribes and with attention to the impact of our actions on Trib al sovereignty. We look forw ard to receiving your input.

Sincerely,

Lydia N. Wegman

Director Health and Environmental Impacts Division Office of Air Quality Planning and Standards

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