Navajo Nation Consultation on the Mercury Air Toxics Rule

US EPA Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, DC 20004

(Wednesday, 10/12/11)

Participants

EPA: Janet McCabe, Laura McKelvey, Darrel Harmon, Colleen McKaughan, Jeb Stenhouse, 

Gregory Green

Navajo Nation Participants: Anoop Sukumaran, Charlene Nelson, Eugenia Quintana, Greg 

Kelly, Stephen Etsitty, Michelle Morris, Simon Boyce, and President Ben Shelley

Introductions

Janet McCabe welcomed the Navajo Nation and reinforced our thanks for their input and that 

EPA takes our consultation obligation seriously. 

President Shelley expressed unhappiness about the proposed mercury rule and its potential 

impacts on the economic, social, and sovereign rights of the tribe. He encouraged EPA to 

consider the social costs of our rules in our decision making processes. He expressed that they 

have similar concerns about the BART rule. He expressed concern that the Navajo Nation has 

300,000 people but is one of the poorest communities in the United States with high 

unemployment, with a large percentage of the population that doesn’t have indoor plumbing, 

electricity, natural gas heat, and phones. He remarked that the revenue generated by NGS helps 

to contribute to tribal scholarships that have helped train the Navajo air staff and others to come 

back to support the tribe.

He expressed concern that the rule will have an impact on the Navajo Generating Station and the 

supporting coal mining operations; both of which contribute significantly to jobs for the Navajo 

Nation and other tribes as well as being significant sources of revenue for the tribe. In addition, 

the potential shutdown of NGS or even cost increases can have significant impact on the water 

supply and cost to the tribe and other tribes in the area and potentially impact their treaty rights 

and further revenue sources for some tribes. He reminded EPA that many members of the tribe 

use coal as a heating source provided by the coal mining operations which may be in jeopardy of 

the NGS shutdowns and makes the mining operations no longer viable.
He expressed frustration that the government encouraged the development of coal energy and the 

NGS and now through this and other rulemakings are undermining that development and may be 

seen as a “taking” or disestablishment of that development. 

He expressed frustration that the level of consultation on this rule was not adequate and 

reinforced that a “one size all” approach does not work when consulting with tribes. He 

expressed concern that the Agency wasn’t taking seriously President Obama’s Executive Order 

13175 (Consultation and Coordination with Indian Tribal Governments) to consider impact on 

the economy and jobs in our rulemaking. He said his people have always had to struggle to 

survive and they are continuing that struggle through trying to balance their economic 

development with sustainable protection of their sacred sites.

He remarked that the Navajo Nation is developing their own energy strategy to explore other 

energy options in addition to the NGS and coal plants. They are interested in clean coal but are 

at green energy. He has a mandate to move forward with the Desert Rock Power Plant and has 

support from the Governor of New Mexico to move forward with the permit demonstrating new 

state-of-the- art (non-coal) options for generating power. He would like to see Desert Rock 

become a blueprint for green energy for other sources across the country. He would like EPA to 

work with his people to make Desert Rock happen. At the same time, he wants to see 

negotiations on clean coal and how it can be used in the future. 

He also discussed a new gridline that would open energy generated on the Navajo reservation to 

a broader market. He also expressed dismay that Texas was exempt from one of the rules -

Cross-State Air Pollution Rule (CSAPR).

Janet thanked him for his comments and clarified that the MATS was a national rule, that the 

BART was local and applied individually to NGS, and the Cross State rule only applied in the 

Eastern part of the country. She expressed interest in working with them on their energy 

advisory committee.

Stephen Etsitty then expressed concern about the application of the Agency’s consultation policy 

with regard to this rule. He acknowledges they were able to consult with the RAs and key 

leadership for both Regions 6 and 9 on the BART issues. However, he expressed concern that 

the accountability aspects of the consultation haven’t been address; he expects to see a written 

letter explaining how we responded to the issues brought out in the consultation. He reiterated 

the consultation activities of the Agency could be improved and reiterated the “one size fits all”

approach does not work for consultation. He recognized that there are constraints on the Agency 

for travel and other activities needed for good consultation. 

He stated that he felt that more consultation on rules impacting energy development was 

important. He noted the Navajo Nation has been working with EPA for 35 years and 10 years in 

grants and $50 million invested in building his staff’s capacity to address air quality issues. He 

encouraged EPA to involve his staff and their expertise as we develop rules affecting the power 
industry in the future. As an example, he pointed out that the power plants current leases are up 

for renewal. With the uncertainty generated by these rules and the uncoordinated compliance 

schedule, the lease renewal processes was being complicated. 

Janet McCabe agreed that a “one size all” approach for consultation doesn’t work and that one of 

the challenges on national rulemaking is balancing the needs and different directions for 

individual tribes. 

Laura McKelvey offered that OAR/OAQPS is starting a process to update our consultation 

policy and would like to involve the Navajo Nation in that process.

Stephen then continued with concern that national rulemakings often overlook western concerns 

and particularly the concerns and needs of the tribes. He asked what discretion EPA might have 

in considering the needs of tribes in addressing the sources in Indian country.

Janet explained that the CAA required the EPA to identify the industries that emit the HAPs and 

then regulate them based on the top performing sources. So that new sources will operate with 

the best technology and existing sources have to improve to a set emissions level. The flexibility 

the CAA provides is how EPA “slices and dices” the source category to set emissions levels that 

make sense, factors we can consider are class, size and type. There is also flexibility on how 

each individual source chooses to meet those emissions limits. In considering additional 

flexibility we have to be consistent with the law. The CAA also requires compliance within 3 

years with potential for another year. 

President Shelley expressed concerns about the compliance schedule; he felt there had been 

progress in negotiating with EPA on compliance options for BART and understood the 

compliance timeframe to be 10 years. Now, MATS seems to have over-ridden these agreements. 

He suggested that EPA find a compromise and potential match for some of the compliance costs 

for the sources to ensure they don’t shut down. He expressed concern that the US was spending 

lots of money in nation building overseas and we should consider supporting similar building in 

our own backyards.

Michelle Morris expressed a desire to understand how health information was used in 

establishing the MATS rule. Janet responded that these standards are technology standards, we 

don’t consider health in setting these standards until we reach the residual risk stage. However, 

in the preamble, we have extensive information in the “necessary and appropriate” finding on the 

health implications of the HAPs covered in this rule particularly for mercury and fish 

consumption for Native Americans and other communities. She also reiterated that BART is a 

rule to address Regional Haze and the CAA has very specific visibility requirements that must be 

addressed. She acknowledged we would like to see more health data in the future but these 

studies are expensive to conduct. 
Greg Kelly asked for more information on what flexibilities we have in the rulemaking for subcategorization and how we justified the cutoff between the small and large sources. He offered 

that fuel type would be one approach. Janet responded that she didn’t believe we could use fuel 

type and we would need to follow up with the engineers to get them this information. 

Greg expressed that we stated that we set the limits but it is up to the source to determine the best 

approach to complying with that limit. He brought up the model prediction that showed NGS 

would shut down which implied to Navajo that these would be the requirements that the source 

would need to meet. He also raised concerns that the proposed rule seems to imply fabric filters 

would be required. We assured him that the modeling was a national projection to help us 

estimate actions of the power sector as a whole, but did not look at local issues and priorities nor 

did it impose an outcome for the individual source. We promised to look at the language in the 

proposal to better understand their concern.

Greg brought up the compliance timeframe and noted with requests from various parties to delay 

the rule, with the lease status and trying to coordinate with the imposition of all the new rules,

they would be interested in any flexibility or ways to coordinate these timeframes. Janet 

acknowledged this compliance issue was an issue for other sources as well and we are currently 

exploring the options that might be available to us.