PSD Increment Modeling Consultation 

Salt Lake City, Utah

2/22/08

Consultation with Forest County Potawatomi Community

Background 

On June 6, 2007 EPA proposed the PSD Refinements to Increment Modeling
Procedures rule.  This rule clarifies issues surrounding increment
calculations and modeling that have been inconsistently applied by
States.  The comment period for the rule closed on August 29, 2007, but
was reopened and extended to September 28, 2007.  At that time, EPA
failed to adequately consult with the tribes on this rule.  To address
this problem, we sent letters to tribal leaders (inviting them to
consult with us on this proposal), held a series of conference calls
with interested tribal environmental staff, and followed with one day of
training on PSD and this rule.  The following are notes from
Consultation with three tribes on the rule.  

In agreement with 2 of the 3 consulting tribes, other tribes were
allowed to listen to the consultation to help better inform them for
developing their own comments on the rule.  EPA requested written
comments be submitted to the Agency by August 4, 2008.  

Attendees

Al Milham – Forest County Potawatomi, Vice Chair

Natalene Cummings – Forest County Potawatomi, Air Specialist

Art Harrington – Forest County Potawatomi, Lawyer for the Tribe

John Clancy – Forest County Potawatomi, Lawyer for the Tribe

Duncan Moss – Forest County Potawatomi, Lawyer for the Tribe

Alexis North – EPA

Bill Harnett – EPA

Janet McDonald – EPA

Jessica Montanez – EPA

Laura McKelvey – EPA

Kevin Greenleaf – Kootenai Tribe of Idaho

Joy Wiecks – Fond Du Lac Band

Mary Munn – Fond Du Lac Band

Brandy Toft – Leech Lake Band of the Ojibwe

Lisa Riener – Quinault Indian Nation

Chris Lee – Southern Ute Tribe

Randy Ashley – Confederated Salish and Kootenai Tribes

Michel Kenmille – Confederated Salish and Kootenai Tribes

Deb Madison – Fort Peck

Summary 

At the outset of the consultation session, Art Harrington wanted to make
a statement for the record that the fact that Forest County Potawatomi
Community (“FCPC”) was participating in this consultation should not
be viewed as a waiver of FCPC’s legal position that such consultation
should have occurred before EPA published this rule proposal. 

Art also commenced his remarks by expressing appreciation and
compliments for the training the day before.  He also expressed
appreciation for the ability to have sovereign government to sovereign
government dialogue and that the Agency is taking seriously its trust
responsibility to the tribes, particularly on issues of this importance.
 He recognized concerns about urban sprawl, other growth demands, and
the resulting continued growth in the energy demand, and thus he
appreciates and understands the significant factors that the Agency
needs to balance with the interests of the tribes in this complex
rule-making proceeding.  As we look forward, Art mentioned that we need
to predict what will happen 20 years from now, and thus the Agency will
need to periodically revisit the current approach.

FCPC did not want to repeat the Consultation conversation that
previously occurred with Fond du Lac, but they mentioned that they will
include some of that discussion in their written comments.  Beyond that
there were other areas that Art wanted to touch on in his discussion:

Legal issues related to the variance procedures 

Clarification regarding  the elements of the proposal that are changes
in policy versus changes in rule and when these changes take effect

The use of Significant Impact Levels (SILs) in the preliminary analysis

Practical issues for tribes regarding their participation in permit
review for Tribal Class I areas during the 30-day public comment period

Legal issues related to the variance procedures

The variance issue is very important in Class I areas.  One of the key
issues raised is who the FLM is for the Tribal Class I areas.  The
Agency says we want the tribes to be the land managers in their tribal
Class I areas, and FCPC agrees with this position.  However, FCPC raised
the question that even if the tribe is the FLM and a source is not
granted a variance, will that decision be subject to litigation?

In addition, it is unclear if the variance is only for federally owned
Class I areas or if it also includes the Tribal Class I areas.  Because
the variance procedures are under section 165(d) of the Act, Art reads
this section as applying to the Federal areas only.  Tribal Class I
areas are included in section 164(e) where different procedures are
discussed.  In fact, in a 1996 FR notice EPA discusses the differences. 
Thus, Art mentioned that Bill Harnett, EPA/Office or Air Quality
Planning and Standards/Air Quality Policy Division Director, said in the
past that the tribe, or EPA as its surrogate, will act as the FLM, but
it is unclear if the tribes under section 165(d) have the authority to
act in this capacity because it has not come up in the past.  Art
mentioned that there could be an argument that since no tribes had Class
I areas before the language existed, the language could be read as the
“person who controls the Class I areas.”  However, this is new
ground and has not been tested.  The language of section 165(d) could
also be read that variances cannot be granted for Tribal Class I areas.

Bill Harnett agreed this is new ground that has not been tested and that
we need to think about both: whether or not the recommendation is that
the tribes do not have the authority to act as the FLM or that variances
cannot be issued because it might act against the tribe.  For instance,
if the state wants to issue a permit that is beyond the increment and it
impacts the AQRV for a Tribal Class I area could that argument keep the
tribe from preventing the permit from being issued?  This section
creates the authority for both.  We also need to think if the tribes
might lose something by “walling themselves off” from this section.

Clarification regarding the elements of the proposal that are changes in
policy versus changes in rule and when these changes take effect

Art thinks that the purpose of the proposal is to provide clarifying
guidance and discretion for past practices and that these
guidance/policy statements went forward after the proposal was final and
that changes in rule language will not take effect until the rule is
final. 

Bill responded that he is not aware of any of the new guidance or policy
statements addressed in the rule currently being implemented by the
States and that any rule changes will not be in effect until the rule
goes final.  

For example, in the case of the PSD program, we drafted a training
manual in 1990, commonly known as the NSR Workshop Manual, but never
finalized it because of differing opinions on how to deal with the
issues addressed in the manual.  However, since this was the only
document of this kind published by the Agency, it was used and
implemented as final Agency policy by our stakeholders despite the fact
that no formal guidance, for example, on increment modeling was ever
made.  As a result, inconsistent approaches to increment consumption
have resulted.  Nevertheless, there is now new federal policy that
requires significant policy and guidance changes to go through notice
and comment just like a rule would.  

Art said he was still unclear about what parts of the proposal are
policies and what are regulatory.  

Bill felt that everything in the proposal was a change in policy but not
a change in rule.  However, we will have to resolve this and may have to
make regulatory changes.  

Art continued to mention that in order to provide adequate comments he
would like to know how the tribe determines what a change in policy is.

Thus, Bill added that he felt the entire proposal is a clarification. 

Janet McDonald, EPA/Office of Air and Radiation, added that if any
disputes arise in the future, the courts will see that this document
went through notice and comment and will give it more weight than old
policy that did not go through notice and comment.

Art continued to express his concern that if all the rule language is a
change in policy not a change in rule, this impacted the ability of the
tribes to have meaningful consultation.  

Bill answered that this is not the case because we are still allowing as
much discretion as before.  For that reason, to the extent that the
practices were used before then, they are already taking place.  However
these practices are not widespread.

The use of Significant Impact Levels (SILs) in the preliminary analysis

Art asked for clarification on the SILs, which are used to decide if a
source has to conduct a cumulative impact analysis and not just a
preliminary increment analysis.

Bill said the SILs have been proposed but not finalized.  Many of the
FLMs have accepted them, but in some parks were there is more pollution
impacts the FLMs are not accepting them.  In these cases, the sources
must do the more complex cumulative impact analysis.

Art mentioned that they felt they needed to reflect and comment on how
the SILs work and if they were stringent enough. 

Bill noted that if the tribe or EPA objected to the SILs, the tribe
could force the source to do the more complex cumulative impact
analysis. 

Practical issues for tribes regarding their participation on permit
review for Tribal Class I areas during the 30-day public comment period

Art stated this raises a practical issue of the ability of the tribe to
review and comment on all of the information in the 30-day public
comment period.  Thus he asks: How can the tribes be engaged earlier
given the staffing constraints, complexity, and the use of best
professional judgment by the sources and permit authorities being
proposed? 

Bill responded that from his perspective there should be an agreement
between the tribes and the Regional Offices on how to get the tribes
involved early in the permitting process for any source impacting tribal
lands.  The Regional Offices should also help the tribes understand the
issues if needed.  The Regions have the expertise and knowledge, and can
help facilitate the interaction with their respective State(s).

Art suggested that the National Environmental Policy Act (NEPA) has a
cooperative agency status where the pattern can be borrowed for this
purpose.

Bill said he would like to see a continued discussion with the Regions
and tribal experts on how we can address this issue.

Art made a final observation that he appreciated the consultation and
the level of interaction on this proposal.  However, where disputes with
Class I areas occur down the road, the Agency needs to be clear and
resolve to be protective of the Tribal Class I areas for the future.

John Clancy also pointed out that this proposal provides more
flexibility for the permitting authorities and there is a general
concern that the permitting authorities could be more closely aligned
with the sources rather than the tribes.

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