### September 16, 2011

MEMORANDUM

From: William H. Maxwell EPA/SPPD/ESG (D243-01)

To: Docket Number EPA-HQ-OAR-2009-0234

Subject: Tribal Consultation MATS and BA RT, Navajo Generating Station

Attendees :

See attached.

Discussion :

See attached.

## List of Attendees

US EPA Tribal Consultation Meeting

MATS rule and Navajo Generating Station

September 16, 2011; 2 to 5pm; ITCA Offices at 2214 North Central Avenue,

Phoenix, AZ

Representing EPA:

Janet McCabe, Deputy Assistant Administrator, OAR

Jared Blumenfeld, Regional Administrator, Region 9

Colleen McKaughan, Associate Director Air, Region 9

Cheryl Nelson, NGS Project Lead Air, Region 9

Name Affiliation Contact Information

Steve Weatherspoon Tohono O’odham Nation sw@weatherspoonlaw.com

520

‐ 618

‐ 2531

Kerry Christensen Hualapai Tribe KerryChristensen@ctaz.com

928

‐ 769

‐ 2254

428

‐ 469

‐ 2254

Jerry Gloshay, Jr. White Mountain Apache jgloshay@wmat.nsn.us

Robert Lyttle For Hopi robertlyttle@yahoo.com

480

‐ 488

‐ 5027

Rea Cisneros For Hopi Rea_cisneros@hotmail.com

Robert Palmquist Strickland & Strickland for

Ak

‐ Chin Indian Community RPalmquist@stricklandlaw.net

Kimberly Craven NREL Kimberly.craven@nrel.gov

Randy Chandler Reclamation rchandler@usbr.gov

William Bettenberg For Hopi bbettenberg@homerlaw.com

Leroy Shingoitewa Chairman

‐ Hopi lshingoitewa@hopi.nsn.us

Manuel M. Savali Chair Kaibab msavala@kaibabpaiute

‐ nsn.gov

David Kwait Chairman, Yavapai Apache

Nation dkwait@yan

‐ tribe.org

Joe P. Sparks For ITCA, San Carlos Apache,

Tonto Apache Tribes 7503 First Street, Scottsdale, AZ

85251

Hilarion Campus Tohono O’odham Nation Hilarion.campus@tonation

‐

nsn.gov

Tanayia White San Carlos Apache Tribe Twhite@chair.scat

‐ nsn.gov

Gil Arviso NNWRC 928

‐ 551

‐ 0711 gil_arviso@yahoo.comSam Woods OPVP

‐ Navajo 928

‐ 871

‐ 9707 swoods@navajo

‐ nsn.gov

Michele Morris PPVP

‐ Navajo Nation 928

‐ 871

‐ 6028 Mmorris_opvp@gmail.com

Ray Benally Navajo Water Resources 928

‐ 229

‐ 4003 rbenally@frontiernet.net

Anoop Sukumaran Navajo EPA asukumaran@navajo

‐ nsn.gov

928

‐ 729

‐ 4094

Jenny Nakai Navajo EPA jnakai@navajo

‐ nsn.gov

928

‐ 729

‐ 4249

Jason Hauter Gila River Indian Community jhauter@akingump.com

Linus Everling Gila River Indian Community linus.everling@gric.nsn.us

Ronald Rosier Gila River Indian Community ronald.rosier@gric.nsn.us

520

‐ 562

‐ 9768

Eldred Enas Colorado River IndianTribes 928

‐ 699

‐ 1280

Kate Hoover Navajo Nation, Department of

Justice khoover@nndoj.org

928

‐ 871

‐ 6938

John Wesley San Carlos Apache 520

‐ 475

‐ 2218

Maureen Perkins ITCA Maureen.perkins@itcaonline.com

Tyler Walls ITCA

‐ EQP’s Tyler.Walls@itcaonline.com

Elaine Wilson ITCA Elaine.wilson@itcaonline.com

Brenda Ball Ak

‐ Chin Indian Community bball@ak

‐ chin.nsn.us

520

‐ 568

‐ 1158

Sharon Pinto NRO sharonpinto@bia.gov

Loretta Stone San Carlos Apache Tribe scatepa@scatcom.net

928

‐ 475

‐ 2218, #1

Dennis Welsh Colorado River Indian Tribes Dennis.welsh@crit

‐ nsn.gov

Edward K. Yava Sr. Colorado River Indian Tribes

Tribal Council 928

‐ 669

‐ 1287

Jonathan Jantzen Tohono O’odham Nation Jonathan.jantzen@tonation

‐

nsn.gov

520

‐ 383

‐ 3410

Harrison Tsosie Navajo Nation Department of

Justice harrisontsosie@navajo

‐ nsn.gov

928

‐ 871

‐ 6345
Eugenia Quintana Air & Toxics, Navajo EPA eugeniaquintana@navajo

‐

nsn.gov

928

‐ 871

‐ 7800

### Summary Notes from Tribal Consultation MATS and BART, Navajo Generating Station Phoenix; September 16, 2011

EPA attendees : Janet McCabe, Deputy Assist ant Administrator, OAR Jared Blumenfeld, Regional Administrator, Region 9 Colleen McKaughan, Associate Director Air, Region 9 Cheryl Nelson, NGS Project Lead Air, Region 9

Tribes attending : [See attached attendance list]

Morning Session : Regular monthly meeting of the Inter Tribal Council of Arizona (see attached meeting agenda). Jared presente d on Regional Haze and status of rulemaking on NGS. Janet presented on the MATS rule and st atus of rulemaking. It was stated that the morning meeting was not consultation, but ra ther an informational meeting to set the stage for consultation.

Key points raised by Jared/Janet :

 These are two separate rulemakings that both affect NGS; MATS rule is national and BART rule is site-specific.

 EPA needs detailed information from Trib es on economic harm to balance against our CAA responsibility and to try and mitigate negative effect to Tribes. Jared offered to keep information conf idential through either CBI or confidentiality agreement. EPA will acce pt data at any time including after proposal

.

 EPA would like to get information from th e tribes directly in stead of relying on information from the plant owners.

 Regardless of the NREL study all data mu st come to EPA for complete BART analysis; encourages tribes to send data directly to EPA.

 Invites all Tribes to afternoon session for consultation; can have further consultations if necessary even beyond the proposal stage for BART.

 EPA goal is to propose BART in spring and “start the dial ogue” with Tribes.

 EPA looking for a solution to “hold Tribes harmless”.

 EPA clarified that EPA and DOI are sepa rate agencies and DOI does not direct

EPA.

 MATS rule is national and sets equal sta ndards for all subject facilities, and is long overdue.

 EPA intends to be generous with co mpliance schedule for MATS and offer

maximum extensions allowed under the rule

.

 EPA does not believe or expect NGS to shutdown; MATS model was specific to MATS requirements for individual faciliti es, and did not account for uniqueness

of NGS or all the factors that might exist in the real world.

Key Issues raised by Tribes :

###  Confusion about EPA being separate ag ency from DOI. Some misunderstanding that EPA is being directed by DOI.

 Push back on EPA’s December schedule for NREL study; need more time for a proper study. Asked what weight the NREL study has with EPA, and what

influence DOI has on EPA.

 Push back on EPA’s schedules for MATS and BART to account for thorough analysis of NREL study.

 Concern about cost of retrofits bei ng born by the Tribes through higher CAP

water rates.

 Concern about model in MATS rule pr edicting shutdown of NGS even without

retrofits. Want further information on how model works and inputs used for NGS case. Shutdown of NGS will have signi ficant impacts on NN and Hopi (jobs, coal and lease revenues) and all other Arizona Tribes (higher CAP water rates will make farming untenable).

 Tribes were not aware of MATS rule until recently and they realize that the costs of controls for complying with MATS ar e even more significant than for BART.

Afternoon Session : Formal Government-to-Government Tribal Consultation on NGS

BART and MATS.

Key points raised by Jared/Janet :

 EPA considers meeting formal Government -to-Government Consultation because

we invited Tribal Elected Officials an d have EPA decision-makers at meeting.

 EPA looking for a solution to “hold Tribes harmless” and one that’s “equitable”.

 EPA needs detailed information from Trib es on economic harm to balance against our CAA responsibility and to try and m itigate negative effect to Tribes.

 EPA understands sensitive nature of information we are requesting and offers to keep information confidential.

 The NREL study will come to EPA for evalua tion as part of our BART analysis; encourages tribes to send data directly to EPA.

 EPA does not want to delay BART proposal beyond Spring 2012.

 EPA offers further consultation on MA TS and BART with Tribes, including

individual consultation with tribes. EP A has a consent decree deadline on the MATS Rule of Nov. 16, 2011 but will try to work with tribes to meet their expectations within that time frame.

 EPA offers to share MATS NGS modeling data and make technical staff

available to Tribes to discuss in a conference call.

 EPA is not presuming a specific outcome on NGS despite the modeling results; models represent scenarios for possible outcomes but the owners will make the

decision on NGS.

 EPA doesn’t view NREL study as comple te for our purposes; BART decision is EPA’s and we need/want independent data from Tribes.

###  BART proposal is a “sta rting point” for further consultation with Tribes.

 EPA encourages Tribes/attorn eys’ to help EPA find stat utory support for the idea of treating NGS differently for purposes of MATS, particularly with respect to the compliance timeframe.

 Both rules will be litigated.

 EPA will check on what legal authorities exist for flexibility with respect to compliance time frames.

Key Issues raised by Tribes :

Gila River:

 Doesn’t consider this meeting or previ ous meetings formal consultation; EPA

must come to reservation and meet with Tribal Council to be considered formal consultation. Have requested formal consultation on MATS and BART rules and haven’t had it yet.

 Asked for specifics on effective date of MATS rule. Asked for EPA to delay MATS rule for NGS and/or delay complia nce schedule for MATS rule for NGS. If that not possible, then treat NGS as unique with separate rule to delay implementation.

 Asks for EPA to share MATS NGS mode ling data. Does this modeling which shows NGS shutting down pr e-judge the outcome.

 Asked whether EPA is considering just SCR or whether other technologies are being reviewed.

Hopi:

 Senator Kyl holding their water rights se ttlement agreement hostage until Hopi agrees to support LNB and not SCR at NGS. Hopi said no; they are officially neutral regarding air emission controls.

 Tying NGS to water rights settlements pits tribe against tribe; need to look at

costs for individual tribes.

 Concerned they are not getting fair mark et value for their coal which supplies

NGS.

 Suggested that EPA look at how the el ectricity and water costs from NGS compared to market value.

 Asks for EPA to share MATS NGS modeling data.

 Distrusts BOR and NREL study- it’s not an “independent ” study; cautions EPA to review motivation behind study and conflic t of interest of BOR as owner and

government agency.

 Offers to work with EPA on providing data needed to complete BART analysis.

 Requested mercury impacts of NGS a nd mercury impacts from all power plants.

Tohono O’odham

###  Requests that EPA delay publication of BA RT until July 2012 to allow adequate time for EPA to review NREL study and take findings into consideration.

 Concerned that NREL time frame does not allow adequate time for review by tribes before it goes to Executive Committee.

 Cautions that EPA can’t adopt BART rule that scares off owners of NGS and not consider impacts to Tribes. Urges EP A to consider how to replace NGS power for CAP. (Note: Rea lly BOR’s responsibility)

 NGS not run-of-the mill power plant – provides substitute water for the groundwater rights that tribes have given up.

 Asks that EPA not impose SCR on NGS or only impose on one unit at a time at 10-year intervals, and measure results.

Navajo Nation

 Requests formal consultation on MATS rule. Sent in detailed comments on MATS rule. Expecting individual written responses from EPA.

Ak-Chin

 Asked to see EPA’s NGS BART economic study.

 Gets all its water through CAP; concern about im pacts to CAP rates from NGS

retrofits.

 Requested formal individual consultation.

San Carlos Apache, ITCA

 Gave history of Tribal Water settleme nt agreements and purpose of NGS in fulfilling US Government Tribal Trust Respons ibility to Tribes. Tribes have paid dearly for water delivery that hasn’t happened yet; only non-Indian CAP water

users have benefited.

 Stresses that cost of CAP water is current ly just at or abov e break-even point for

Tribes to be able to afford to use for farming of cotton and other crops, and water costs are expected to go up.

 Requests that EPA figure out how to “fix” broken water settlement agreements to

roll back cost to Tribes. Under current system Tribes pay for water they use and CAP gets to keep and sell at profit any water Tribes don’ t use from their

allocation.

 Suggests a congressional appropriation to pay for retrofits and/or electricity replacement for NGS to benefit Tribes.

 Makes the point that whether it is EPA or CAP tribes are being bled to death.