From: Stoneman, Chris

Sent: Thursday, November 12, 2015 10:29 AM

To: RWilson@ndnlaw.com

Cc: Childers, Pat; Mckelvey, Laura; Green, Gregory Subject: RE: Revised Definition of Indian Country

Hi Rollie

--

I am writing in response to your email below asking about why we are proposing to change the definition of Indian country in the same action in which we are proposing a FIP for oil and natural gas sources in Indian country (80 FR 6554, September 18, 2015).

We have proposed to revise the defi nition of Indian country to comport
with the court decision that addressed EPA’s jurisdiction to implement the Federal Indian Country Minor NSR rule: Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). The court
decision also affects the definition of Indian country under the Federal Major New Source Review Program in Indian Country so we are proposing to change the definition of Indian country under the Federal Indian Country Major NSR

rule as well.

Specifically, th e Federal Indian Country Minor NSR rule and Federal Indian Country Major NSR rule currently define "Indian country" to include three categories of lands consistent with 18 U.S.C. 1151, i.e., Indian reservations, dependent Indian communities, and Indian allotments. The U.S. Court of Appeals for the District of Columbia Circuit vacated the rule with respect to

non

- reservation areas of Indian country (i.e., dependent Indian communities and Indian allotments) (Oklahoma Dept. of Environmental Quality v . EPA, 740 F.3d 185 (D.C. Cir. 2014)). The court held that the states, not tribes or the EPA, have initial primary responsibility for implementation plans under CAA section
110 in non

- reservation areas of Indian country in the absence of a demonstratio n of tribal jurisdiction by the EPA or a tribe. We are proposing to revise the definition of Indian country in §§49.152(d) and 49.167 to add a clause indicating that, for purposes of the Federal Indian Country Minor NSR rule and the
Federal Indian Coun try Major NSR rule, references to Indian country include all Indian reservation

lands where no EPA

- approved program is in place and all other areas of Indian country where no EPA

approved program is in place and over which an Indian tribe, or the EPA , has demonstrated that a tribe has jurisdiction.I hope that this answers your questions. Please let me know if we can

clarify anything further.

Thanks.

Chris Stoneman

USEPA 919/541

- 0823 Stoneman.chris@epa.gov

From: Rollie W ilson [mailto:RWilson@ndnlaw.com] Sent: Monday, November 09, 2015 6:41 PM To: Childers, Pat <Childers.Pat@epa.gov> Subject: Revised Definition of Indian Country

Hi Pat,

During our meeting last week we had a brief conversation about EPA’s

prop osed FIP for oil and gas minor sources in Indian Country

- I hope I said all that right. The

Tribe is concerned about a change in the definition to Indian Country, although I did not do a good job recalling the issue for the meeting participants. I t appeared at the meeting that the EPA folks present said that there would be no change to the definition and/or they supported the Tribe’s view. But, when I’ve pulled up the language again, it seems to me that there is a potential change. I have not figured out yet whether the Tribe thinks it is good or bad. But, with a better
recollection of the information below, can EPA tell us a little more about what’s going on here and why this is being proposed to be added to the definition. Thanks, Rol lie

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The revised definition of Indian Country adds a new subpart 4 to

its recitation of the Indian criminal jurisdiction definition of Indian country. New subpart 4 in 40

CFR Sections 49.152; 49.167 provides that: Indian country, as defined in 18 U.S.C. 1151, means the following as applied to this

program:

(4) For purposes of this rule, references to Indian country include all
Indian reservation

lands where no EPA

- approved program is in place and all other areas of Indian country

where no EPA

- approved program is in place and over which an Indian tribe,

or the EPA, has demonstrated that a tribe has jurisdiction. 80 Fed. Reg. 56575.++++++++++++++++++++++++++++ ++++++++++++++++

Rollie Wilson Fredericks Peebles & Morgan LLP 401 9th Street NW, Suite 700 Washington, DC 20004 Telephone: (202) 450

- 4887 Cell: (202) 340

- 8232 Fax: (202) 450

- 5106

www.ndnlaw.com

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