April 24, 2019  -  WA HHC Reconsideration
Tribal Informational Call #1

Tribal Attendees: 
Yakama Nation
Tulalip 
CRITFC
Puyallup
Makah
Stillaguamish
Cowlitz
Colville
Lower Elwha
NW Indian Fisheries Commission
RTOC
Nez Perce
Umatilla
Shoshone-Bannock
Jamestown S'Klallam 
Quileute
Suquamish
Squaxin Island
Kalispel
Snoqualmie
Skokomish

EPA Attendees: Chris Hladick, Angela Chung, Wenona Wilson, Hanh Shaw, Matt Szelag and Felicia Wright

Questions and Comments from Tribal Attendees

 The decision will be made by HQ water staff? No one from HQ on this call, correct? Will there be an opportunity to talk with the folks at HQ?
 Is it possible to discuss or describe what was put out in the federal register  -  the memo put forward a public comment period; with this decision that's looming to approve or deny the petition, what is the consideration re: implementation of the 2016 standards  -  CWA and ARARs/CERCLA  -  big change and disruption to ongoing efforts to protect the Columbia River; fully implemented on the cleanup side; is EPA going to take into consideration the potential implications of the cleanup values; sites in the feasibility study and cleanup action plan phase?
 Discuss the rationale for the decision  -  is it cost based or toxics (health based)? Did EPA take into account the ARARs  -  WA requires not to exceed 10[-6] for protection of human health; seems like tribal fish consumption is at risk and what other subpopulations are not protected?
 Would the process be same as a petition to reconsider previous decision? If a new petition was issued would it have equal consideration?
 You are experiencing lots of quietness on the phone because tribes are unfamiliar with the process; in no way does this mean consultation with tribes; why is the petition given so much weight; the process started with the tribes and the state 20 years ago; the same people who petitioned were at the same process that concluded the process that is in place; through another process, they get to come back and make a petition; the decision was made  -  find it confusing that EPA is purporting to lessen the stringency of the standards; increase the cancer rate; WA state even said they are not interested in doing this  -  where does this come into the reconsideration? Are you just going through the process and a decision has been made? Throughout the process, best available science has been used; it is confounding that we are lessening the protections
 If decision is based on petition being submitted  -  there are a lot of inaccuracies, including representation of treaties; EPA has obligations to tribes and this was done without any consultation; would EPA consult with tribes prior to the rulemaking? Will there be consultation prior to making a decision to reverse disapproval?
 Confirm there will not be consultation prior to making the decision to reconsider? The federal rulemaking process would follow, but isn't that just the pro-forma process to instill the decision? Have you granted the decision to reconsider? In 2016, EPA adopted a government-to-government consultation policy and policy on tribal treaty rights  -  treaty rights are affected by the decision; next steps involve conducting legal and policy analysis to assess/determine how rights are protected as part of reconsideration?
 Clarify when will the decision occur? In the next month or so?
 What exactly is the purpose of this call? Just to report out that this is occurring or is EPA accepting feedback? How much consideration would EPA give to tribal input? It's hard to understand how this complies with the APA; there was a huge process that went into the partial approval/disapproval; there does not seem to be the same openness  -  feels closed off; trying to understand how to be open or engaged.
 What type of analysis is to be done to understand that the disapproved WQS are now less damaging; what is the justification for reversing; what's the analysis/what new information? If we cannot talk about the details, what are we doing today then? I feel that the decision has already been made and hope and feel that's not the case
 Thank you for taking the call; it's a big deal in Indian Country; acknowledge this is not consultation; taken aback  -  appreciate the explanation; thought we would have a chance to express concerns; will write letter to demand a consultation and ask EPA to deny petition. Any decision should be science based and not politics based; there was a lot of time put into developing the rule, and the reconsideration due to a petition took almost no time; how does EPA fulfill its trust obligation associated with this decision?
 Interested in hearing about EPA's process with WA state regarding reconsideration. On July 10, 2017 NWIFC sent EPA a lengthy response to the petition; no response from EPA; what is the timeframe and opportunities for engagement?
 How long are the state submittals held and make alive again (i.e. is Washington's 2016 submittal still alive for EPA to act on again)? How long are they viable?
 Assuming a decision to approve the criteria is in the next month, do you have a timeline for the next steps? Tribal consultation?
 If a decision is made to grant petition  -  is it possible to end up with the exact same record the first time around, or would it change? The admin record that went into the first decision (federal rulemaking)  -  would it stand or would it be washed clean? If a new decision is based on a new record, then that's concerning because a lot of time and information went into the previous decision.
 If EPA moves forward with the reversal then withdraws the federal rule, what would remain in effect?
 Our only option seems to be entirely legal to delay and constrain EPA from taking this action; I have worked on these standards for 30 years during the process; seems like the strategy is to litigate and delay the effectiveness of the state's standards (to keep the federal standards that we have fought so hard to put in place)
 What is the EPA process for the 2017 petition?  -  sounds pretty clear from the intro statements, EPA does not intend to have a public process prior to making the decision on the reconsideration; concerned about the administrative record  -  would there be a public process? Why won't you have a public process to build the record?
 Please explain what the scope of the record would be for step 1 of the decision process? When can we expect the decision to reconsider? And when is the decision finalized?
 If there is or is not an opportunity to weigh in, how do we have direct communication with those who will make the decision?
 EPA acknowledged that this is not consultation, you acknowledge in your letter this is late notice; you're not willing to discuss the details of the decision in this call; you said the decision will be based on Ecology's 2016 submittal, which acknowledges treaty rights. We asked for input on step 1  -  help us understand why you are not consulting?
 What consultation did EPA do with the petitioners; could we have the same opportunity with HQ?
 The tribe opposes reconsideration  -  please take back to DC; please summarize why we are reconsidering, what were the substance of their arguments, what's wrong with the criteria and what new information has been provided? Have you also looked at how the ID and WA decisions are same/different than OR's?
 EPA committed to working with tribes and the RTOC on subsistence issues, how do you reconcile the issue of the tribes eating fish that are less safe?






