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Consolidated Comments from Feb ruary Consultation Calls and National Tribal Air Association (NTAA) Webinars: Clarify ing Tribal Participation in the TRI Program

February 7, 2011 Consultation Call ( P articipant list contained in separate file ) February 28, 2011 Consultation Call ( P articipant list contained in separate file )
March 17, 2011 NTAA webinar ( P articipant list contained in separate file) (Over 40 participants, 25 logged in to GoTo Meeting, others followed slides due to exceeded capacity. P articipant list provided by NTAA.
March 30, 2011 NTAA Webinar ( P articipant list contained in separate file) (NTAA requested a second webinar due to the overwhelming interest in the first webinar. Ten tribes expressed interest in a second webinar. T hree tribal representatives actually participated
, representing the following tribes : Ft Belknap Indian Reservati on (Gros Ventre and Assiniboine Tribes) , Northern Cheyenne Tribe (Montana), and Southern Ute Tribe

. Blog Comments: Blog open for comment through March 31, 2011

General Comments
One of the participants asked what is meant by “Indian country” and “tribal lands?” EPA explained that “Indian country” was being used as defined in the US Code ( 18USC1151). The commenter explained that tribal lands and Indian country are not interchange able and asked how
ceded lands or checker boarded areas would be treated (3.17.11 NTAA webinar).

One commenter from the Alaska Big Village Network explained that the Red Dog mine has a lot of impact on Alaska native people, even though it is not within Ind ian country. Another

commenter also representing Alaska Big Village Network and a member of the Yupik Tribe , commented on the situation for TRI reporting in Alaska and expressed concern over the amount of toxics in people’s food, fish and wildlife from bioaccumulation of these chemicals. One
commenter from the Cherokee Nation of Oklahoma stated that w hat is of interest to tribes and would be of interest would be those facilities NOT covered by the TRI Program (3.17.11 NTAA webinar).2

A commenter from the Oneida Tribe of Wisconsin asked the following question: What about the Exchange Network? Isn’t it aimed at t wo

- way data flows? TRI is a one

- way data flow. How would tribes participate in the EN? EPA staff mentioned that the TRI Program is the lead on the TRI Data Exchange and would be better able to answer those questions, but noted that there will
soon be th e ability to choose either a more streamlined, initial method of electronic reporting (without full EN infrastructure) or the traditional EN development for those interested in flowing other media data and receiving TRI data. EPA mentioned that the TRI Pr ogram would be working with EPA Regions and Tribes, if the rule is finalized, to discuss options available to tribes for electronic receipt of data from facilities (3.17.11 NTAA webinar).
A representative of the Seminole Trib e asked if EPA had worked with some of the tribal consortia to present this information. EPA has briefed the National Con gress of American
Indians and worked with Regional Indian program coordinators. EPA mentioned that I nstitute
for T ribal E nvironmental P rofessionals is another group to contact

. The commenter from the
Seminole Tribe mentioned that the United South and Eastern Tribes (USET) is a good group to work with. ( There is curr ently a USET meeting in Arlington, VA)

. EPA did e

- mail the consultation package to U SET and discussed the upcoming consultation with a , USET representative , in late January 2011.

Tribal Government’s Responsibility to Receive TRI Facility Information (Facility Reporting)

One commenter from , Fond du Lac Band of Lake Superior Chippewa , commented that “facilities that may affect the tribe,” should also be required to report to the tribe, not just those facilities in Indian country (3.17.11 NTAA webinar).

Two commenters (from Northern Cheyenne Tribe and Ft Belknap Indian Reservation (Gr os Ventre and Assiniboine Tribes) mentioned that it would be preferable if TRI reports could be
submitted to the t ribal leader (chairperson or equivalent) with a copy to the Tribal Environmental Director. There were questions as to the feasibility of two contacts for report submittals and (internally) as to how this would work with electronic reporting (3.30.11 NTAA webinar)3

EPA Region 5 inquired as to whether facilities located in ceded territories would be required to report to the tribe. EPA responded by stating t he facility would be required to report to the tribe
and EPA if t he facility is located on land that meets the definition of Ind ian c ountry, as stated in
US Code ( 18USC1151 )

. Using TRI tools, Tribes can search for or locate facilities outside of Indian country, but of tribal interest (e.g., within their known ced ed territories and/or areas for which they have retained treaty rights )

. (2.7.11 Consultation Call)

One commenter from the Winnebago Tribe of Nebraska, inquired as to whether only facilities
lo cated in Indian country would be required to report to the Tribe and EPA

. EPA’s current proposal for facility reporting would only impact those facilities located in Indian country. Yes. Approx. 51 facilities operating in Indian count ry right now (2.28.11 Consultation Call).

One commenter from the Winnebago Tribe also stated that each tribe is a little bit different. The
l evel of tribal council involvement is different, so it’s difficult to know which organization each tribe will designate to receive TRI information. ( 2.28.11 Consultation Call )

The Leech Lake Band of Ojibwe supports this addition of a Tribal point of contac t for both facilities and EPA for report submissions. The Tribal Emergency Response Committee potentially will appoint Leech Lake’s point of contact. (Posted on blog by Brandy Toft, Leech Lake Band of Ojibwe, March 30, 2011 at 8:20 pm)

It was good that EP A held a call for Tribal personnel that missed the 2 calls previously in Feb. It is good that you are going to include tribes in this, but I believe that until they find/get a point of contact, that they send the information to the President of our Tribe a nd also the Environmental Director until said person is appointed. (Posted on blog by Kermit Snow, Ft Belknap Indian Reservation (Gros Ventre and Assiniboine Tribes), March 31, 2011 at 9:44 pm),

Opportunities for tribal leaders to Request EPA Administrator add a Facility to the TRI

One commenter from the Santee Sioux Nation stated that this was not really a consultation call as elected officials were not participating. EPA explained that tribal leaders were notified by4

mail of two scheduled consultation calls held in February 2011. This webinar was held at the request of NTAA, and in the interest of providing information to tribal representatives who were interested in learning more about EPA’s current considerations with respect to this proposal and having an opportunity to provide feedback (3.17.11 NTAA webinar)

.

One commenter from the Santee Sioux Nation asked if the tribal chair could designate another individual to petition the Administrato r in place of him/her. A commenter from the Southern Ute Tribe asked who would determine thresholds for facility reporting

. EPA explained that the reporting thresholds have already been determined and are in the regulation (3.17.11 NTAA webinar)

.

A comm enter from the Ft Belknap Indian Reservation (Gros Ventre and Assiniboine Tribes) agreed with EPA’s current proposal and felt that tribes should be treated equally to states in the TRI Program. A commenter from the Southern Ute Tribe also agr eed with EPA’s current proposal (3.30.11 NTAA webinar)

.
One commenter asked whether the opportunity to petition would apply to a facility that is in close proximity but not on tribal land. (2.7.11 Consultation Call)

A commenter from the Winnebago Tribe o f Nebraska, inquired as to whether EPA would consider a recommendation from a tribe that has a concern about a facility located outside Indian country boundaries, even if it has direct impacts on tribal lands . EPA indicated that this comment
would be consi dered in development of the proposed rule and added that currently, anyone has the right as a citizen to contact EPA and express concern about a facility. (2.28.11 Consultation Call).

One commenter from the Red Cliff Band of Lake Superior Chippewa agree s with being able to add chemicals, and being able to add facilities. The commenter also agreed with the previous

commenter s regarding the importance of the ability to express concerns about facilities located outside Indian country

. The same commen ter stated that it is i mportant to have an opportunity to5

voice concerns and add facilities/chemicals, but also t hought it was important to be able to express concern about facilities that are more than 10 miles away, especially if they’re upstream
from tr ibal lands. This commenter stated that it i s good that we can add chemicals regar dless of location, but wanted EPA to al so keep in mind that in addition to land within tribal boundaries, many tribes also have ceded territories (2.28.11 Consultation Call)

. Also cross

- referenced under “Opportunities for Leader to Petition to Add Chemical(s) to the TRI”

The Leech Lake Band of Ojibwe supports the provision for the Tribal Chairperson, as equivelent to State Governors, to apply TRI reporting requirments to a fa cility (ies) located in Indian Country. (Posted on blog by Brandy Toft, Leech Lake Band of Ojibwe , arch 30, 2011 at 5:22 pm)

Opportunities for leaders to Petition EPA’s Administrator to add/delete a chemical from
the TRI

A commenter from the Southern Ute Tribe asked whether the chemical had to be released on the reservation for a tribe to request it be added to TRI. EPA explained that a tribal leader could petition to add any chemical of concern, regardless of its release location. A commenter from the Northern Cheyenne Tribe explained that coal bed methane is of concern because the extraction process often has detrimental impacts to streams and other water sources. Is coal bed methane (extraction process) covered under the TRI Program? EPA explained that there are sectors, such as coal bed methane, that are not covered under the TRI Program, however a tribe’s concerns /questions could always be relayed to EPA (3.30.11 NTAA webinar).

One commenter from the Southern Ute Tribe asked whether all chemicals had the same reporting
threshold. EPA explained that there are different thresholds depending on whether the facility is manufacturing, processing or otherwise using the chemical. There are also much lower
thresholds for persistent, bioaccumulative toxic chemicals (PBTs). The same commenter also asked what occurred if a facility released more than the required thresholds. EPA explain ed that6

the thresholds aren’t a maximum, but rather a minimum threshold to require reporting for facilities releasing these toxic chemicals (3.30.11 NTAA webinar).

A commenter from the Ft Belknap Indian Reservation (Gros Ventre and Assiniboine Tribes) asked how the thresholds applied to Oil and Gas Exploration. EPA explained that oil a nd gas exploration are not currently covered under the TRI Program. One commenter explained that
there are coal

- fired power plants north of the Northern Cheyenne reservation. The tribe has started wet deposition monitoring on the reservation because the power plants release mercury.
The same commenter asked whether there was a way to find out about off reservation facilities
of interest. EPA explained that the TRI.NET tool provides the ability for tribes to see which
facilities are specific distances fr om a point location even if it is not actually on the reservation (3.30.11 NTAA webinar).

A commenter from the Red Cliff Band of Lake Superior Chippewa, agree d with being able to add chemicals, and being able to add facilities. The commenter also believed that the comment [regarding expressing concerns about facilities located outside Indian country] is important. The
commenter stated that it is important to have an opportunity to voice concerns and add facilities/chemicals, but also believes it’s importa nt to be able to express concern about facilities that are more than 10 miles away, especially if they’re upstream from tribal lands. The

commenter also stated that it is good that we can add chemicals regardless of location, but wanted EPA to also keep in mind that in addition to land within our tribal boundaries, many tribes also have ceded territories (2.28.11 Consultation Call). Also cross

- referenced under “Opportunities for Leaders to Request to Add a Facility to the TRI”

The Leech Lake Band of Ojibwe does support Option #1 setting the Tribal Chairperson to officially petition EPA, in the same manner as State Govenors, to add a chemical(s) to the list of chemicals covered by the TRI. (Posted on blog by Brandy Toft , Leech L ake Band of Ojibwe , March 30, 2011: 5:22 pm)7

Electronic Submittal of TRI facility reports to tribes

One commenter from the Cherokee Nation noted that there are several M emoranda of Agreement (MO As ) between different states and departments and inquired as to whether EPA would do something similar with Tribes if this rule goes through. EPA explained that that is one of the things that will be addressed in the proposed rule. EPA is currently consider ing if we bring tribes into this reporting, how we might adjust the TRI state data exchange network so that tribes can participate in the same way that states do. (2.7.11 Consultation Call)

Tribal Coordination with the TRI Program

A commenter from the Wi nnebago Tribe liked the idea of the tribal environmental department being on the TRI bimonthly call. (2.28.11 Consultation Call)
A commenter from the Ft Belknap Indian Reservation (Gros Ventre and Assiniboine Tribes), stated that he thought this was a goo d idea. In some cases, he has attended calls/meetings if delegated by the current representative (3.30.11 NTAA webinar)

.

The Leech Lake Band of Ojibwe supports the provision for the Tribal Chairperson to appoint a designee to participate on the TRI Coord inators Calls and to receive the TRI reports. This will be beneficial information for the Tribe’s Emergency Response Committee. (Posted on blog by Brandy Toft , Leech Lake Band of Ojibwe, March 30, 2011 at 8:11 pm).

State Access to TRI Reports for Facilities Located in Indian country

The Leech Lake Band of Ojibwe wholly supports the notification and receipt TRI Data Exchange report(s) in Indian Country. (Posted on blog by Brandy Toft, Leech Lake Band of Ojibwe, March 30, 2011 at 8:31 pm)