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 BART, 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.com
Sam 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 Assistant 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 presented on Regional Haze and status of rulemaking on 

NGS. Janet presented on the MATS rule and status of rulemaking. It was stated that the 

morning meeting was not consultation, but rather 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 Tribes on economic harm to balance against 

our CAA responsibility and to try and mitigate negative effect to Tribes. Jared 

offered to keep information confidential through either CBI or 

confidentiality agreement. EPA will accept data at any time including after 

proposal. 

 EPA would like to get information from the tribes directly instead of relying on 

information from the plant owners. 

 Regardless of the NREL study all data must 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 dialogue” with Tribes. 

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

 EPA clarified that EPA and DOI are separate agencies and DOI does not direct 

EPA. 

 MATS rule is national and sets equal standards for all subject facilities, and is 

long overdue. 

 EPA intends to be generous with compliance 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 facilities, 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 agency 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 being born by the Tribes through higher CAP 

water rates. 

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

retrofits. Want further information on how model works and inputs used for NGS 

case. Shutdown of NGS will have significant 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 are 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 and 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 Tribes on economic harm to balance against 

our CAA responsibility and to try and mitigate 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 evaluation 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 MATS and BART with Tribes, including 

individual consultation with tribes. EPA 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 complete for our purposes; BART decision is 

EPA’s and we need/want independent data from Tribes.
 BART proposal is a “starting point” for further consultation with Tribes.

 EPA encourages Tribes/attorneys’ to help EPA find statutory 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 previous 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 compliance 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 modeling data. Does this modeling which 

shows NGS shutting down pre-judge the outcome. 

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

being reviewed. 

Hopi: 

 Senator Kyl holding their water rights settlement 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 market value for their coal which supplies 

NGS. 

 Suggested that EPA look at how the electricity 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 conflict 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 and mercury impacts from all power 

plants.

Tohono O’odham 
 Requests that EPA delay publication of BART 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 EPA to consider how to replace NGS power 

for CAP. (Note: Really 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 impacts to CAP rates from NGS 

retrofits. 

 Requested formal individual consultation. 

San Carlos Apache, ITCA 

 Gave history of Tribal Water settlement agreements and purpose of NGS in 

fulfilling US Government Tribal Trust Responsibility 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 currently just at or above 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.