NOTE—NTAA recommends that you begin your Tribe’s comment letter with introductory
remarks regarding the signatory’s position with the Tribe and include somewhere in the letter a
description of the Tribe’s physical environment and any particular concerns the Tribe has with
respect to this proposed rule. The more individualized the letter, the greater its potential impact.
Feel free to add you own arguments, objections, or support for various aspects of the proposal.
Comments are due February 1st, 2016. You can submit comments via email to A-and-RDocket@epa.gov and include docket ID No. EPA-HQ-OAR-2015-0500 in the subject line of the
message.
U.S. Environmental Protection Agency
EPA Docket Center (EPA/DC)
Mail code 28221T
Attention Docket ID No. EPA-HQ-OAR-2015-0500
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Subject:
Proposed Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS
Introduction
The [NAME OF TRIBE] is pleased to submit these comments and recommendations
regarding the U.S. Environmental Protection Agency’s (EPA)’s proposed Cross-State Air
Pollution Rule Update for the 2008 Ozone NAAQS, 80 Fed. Reg. 75706 (December 3, 2015)
(Proposed Rule).
The [NAME OF TRIBE] approves generally of the Proposed Rule that will help reduce the
interstate transport of ozone emissions that contribute significantly to nonattainment, or interfere
with maintenance, of the 2008 ozone national ambient air quality standards (NAAQS).
Nevertheless, the [NAME OF TRIBE] provides its comments and recommendations concerning
the Proposed Rule with respect to Tribal consultation, the technical analysis for the Proposed Rule,
the Indian Country new source set-aside, and environmental justice and hot spots. However, the
[NAME OF TRIBE] prefaces its comments about the health and environmental impacts of ozone
on Indian Tribes.
Health and Environmental Impacts
Exposure to ground-level ozone can harm the human respiratory system (the upper airways
and lungs), aggravate asthma and other lung diseases, and cause premature death from respiratory
and cardiovascular causes.1 Such effects can lead to increased visits to doctors, hospital
1
Proposed Rule at 75707.
admissions, school absences; and may increase the risk of premature death from heart or lung
disease.2
Indian Tribes and their members are disproportionately susceptible to the health effects of
ground-level ozone. Exposure to ground-level ozone can adversely affect Tribal community
members including children, Tribal elders, members with asthma, and others who gather and use
plants of cultural significance. Several studies show that Native Americans and Alaska Natives
have a disproportionate incidence of asthma and are at risk from exposure to ozone. Specifically,
American Indian and Alaska Native children are 80 percent more likely to have asthma as nonHispanic white children.3
Ground-level ozone has also been shown to adversely impact the environment, which
includes impacts to vegetation, ecosystems, and their associated services. Ground-level ozone
causes visible foliar injury to plants and trees, decreased photosynthesis, changes in reproduction,
and loss in forest growth and in the biomass of trees.4 Further, ground-level ozone can make
sensitive species more susceptible to certain diseases, insects, competition, harsh weather, and
other pollutants, which, in turn, can have adverse impacts to ecosystems such as changes to habit
quality and water and nutrient cycles, and loss of species diversity.5 Some of these species can
also include those on which Indian Tribes depend for subsistence, medicine, or other traditional
practices that have existed since time immemorial. Many of these practices take place during the
summer months, also the time period during which ground-level ozone is most prominent.
The [NAME OF TRIBE] supports the Proposed Rule for the health and environmental
benefits that it will provide based on an expected reduction in ground-level ozone.
Tribal Consultation
EPA finds that the Proposed Rule has Tribal implications, but that such implications do not
extend to imposition of compliance costs for Tribal governments or preemption of Tribal law.6
Nevertheless, EPA has failed to consult with Indian Tribes regarding the Proposed Rule in
accordance with Executive Order (EO) 13175.7 EO 13175 requires EPA to develop an
accountability process to ensure “meaningful and timely input by development of regulatory
policies that have Tribal implications.”8 (emphasis added). This necessitates that EPA consult
with Tribes and their leaders on a government-to-government basis.
2
“Ground-Level Ozone: Health Effects” at http://www3.epa.gov/ozonepollution/health.html (last visited January 1,
2016).
3
“Asthma and American Indians/Alaska Native: Asthma” at
http://www.minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlID=30 (last visited January 1, 2016).
4
“Ground-Level Ozone: Ecosystem Effects” at http://www3.epa.gov/ozonepollution/ecosystem.html (last visited
January 1, 2016). Visible foliar injury is a visible bioindicator of ozone exposure in plant species, with the injury
affecting the physical appearance of the plant.
5
Id.
6
Id. at 75762.
7
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (November 9, 2000), at
https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf (last visited on January 2, 2016).
8
Id.
The Proposed Rule provides that, in developing the Cross-State Air Pollution Rule
(CSAPR) to address interstate transport of ozone under the 1997 ozone NAAQS, EPA consulted
with Indian Tribes in accordance with EO 13175. For the Proposed Rule, however, EPA only
informed Tribes about the rule through a January 29, 2015 [NAME OF TRIBE]-EPA air policy
conference call and plans to consult further with Tribal officials in accordance with EO 13175.
How can EPA consult further with such officials or how can the EPA Tribal Consultation Office
certify that EPA has met the requirements of EO 13175 in a meaningful and timely manner9 when
there hasn’t been any government-to-government consultation in the first place? If EPA knew in
January 2015 that it was proceeding with development of the Proposed Rule, it should have
initiated consultation with Tribes at that time. Instead, EPA avoided its responsibilities under EO
13175 and now makes a statement that it plans to consult with Tribes moving forward, after release
of the Proposed Rule. The [NAME OF TRIBE] finds this completely unacceptable.
The [NAME OF TRIBE] recommends that EPA develop and implement a comprehensive
Tribal consultation plan regarding the Proposed Rule. While Indian Tribes consider governmentto-government consultation to be very important, EPA must understand that such Tribes have
limited resources and time to expend on such consultation. EPA must make a genuine effort to
provide Tribes with any additional resources and assistance that they might require to engage in
effective government-to-government consultation. As such, the TPPC recommends some of the
following actions to EPA to help it conduct effective government-to-government consultation with
Tribes regarding the Proposed Rule:
9
1.
Develop guidance on how EPA intends to ensure that government-togovernment consultation meetings with Indian Tribes result in meaningful
dialogue rather than simply pro forma consultation;
2.
Assign a Tribal liaison to the Proposed Rule who has extensively worked
with Indian Tribes on similar issues;
3.
Send a letter to each Tribal chairperson with copies provided to appropriate
staff (e.g., Tribal administrator, environmental manager) that asks each
Indian Tribe how it would like to be consulted on the Proposed Rule.
Providing copies to different individuals of authority within the Tribe will
provide better assurances that the Tribe is clearly made aware of the
Proposed Rule. Asking each Tribe about how it would like to be consulted
respects its individual sovereignty and Tribal cultures, and helps to insure
that true government-to-government consultation occurs.
4.
Provide assurances to Indian Tribes that the most senior-level EPA officials
will be engaged in government-to-government consultation since they will
likely be represented by their highest-level officials such as Tribal
chairpersons and/or council members.
5.
Provide adequate time to Indian Tribes to review and provide comments
concerning the Proposed Rule.
Proposed Rule at 75762.
The [NAME OF TRIBE] is available to provide additional recommendations and help EPA
coordinate its government-to-government consultation process with Indian Tribes.
Technical Analysis for the Proposed Rule
Section 110(a)(2)(D)(i)(I) of the Clean Air Act (CAA), also known as the “good neighbor
provision,” prohibits emissions activities within a state that contribute significantly to
nonattainment, or interfere with the maintenance of, another state’s primary or secondary NAAQS
for any criteria pollutant. The [NAME OF TRIBE] finds that Proposed Rule is applied illogically
and too narrowly to Indian Tribes.
EPA used CAMx photochemical source apportionment modeling to quantify the impacts
of upwind state ozone contributions to downwind nonattainment and maintenance receptors for
the 2008 8-hour ozone NAAQS.10 However, the modeling runs tracked ozone emissions formed
by a number of contribution categories including those formed on Tribal lands for which EPA has
point sources inventory data in the 2011 National Emissions Inventory.11 The [NAME OF TRIBE]
must ask EPA why ozone emissions from Tribal lands are included in the modeling run when the
focus of the Proposed Rule is on ozone emissions from upwind states that contribute significantly
to nonattainment, or interfere with the maintenance of, a downwind state’s efforts to meet the 2008
ozone NAAQS? The [NAME OF TRIBE] finds this to be illogical.
The Proposed Rule is also silent on how upwind state ozone contributions impact
downwind Indian Tribes. A number of Tribes are located in nonattainment or maintenance areas
for the 1997 8-hour ozone NAAQS, areas that will also likely be in nonattainment or maintenance
areas for the 2008 standards. These Tribes include:
Tribe
Mashantucket Pequot Indian Tribe
Mashpee Wampanoag Tribe
Mohegan Tribe of Connecticut
Narragansett Indian Tribe
Wampanoag Tribe of Gay Head
Seneca Nation of Indians
Towanda Band of Seneca
Tuscarora Nation
Catawba Indian Nation
Eastern Band of Cherokee Indians
Nonattainment Area
Greater Connecticut
Boston-Lawrence-Worcester
Greater Connecticut
Providence
Boston-Lawrence-Worcester
Buffalo-Niagara
Rochester
Buffalo-Niagara
Charlotte-Gastonia-Rock Hill
Haywood
and
Swain
Counties
Match-e-be-nash-she-wish Band of
Pottawatomi Indians of Michigan
Detroit-Ann Arbor
Nottawaseppi Huron Band of the
Potawatomi, Michigan
Kalamazoo-Battle Creek
10
11
Id. at 75726.
Id. at 75726-27.
Nonattainment Status
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Maintenance
Maintenance
Maintenance
Maintenance
Pokagon
Indians
Band
of
Potawatomi Cass County
Maintenance
The [NAME OF TRIBE] finds that EPA must consider and mitigate the impacts of upwind
state ozone contributions to these Indian Tribes. EPA might argue that, unlike downwind states
required to attain and maintain air quality standards for the ozone NAAQS and other criteria
pollutants, Tribes are not under a similar obligation. As such, until a Tribe adopts an
implementation plan to regulate the ozone NAAQS, or EPA promulgates its own plan for the Tribe,
EPA need not consider nor mitigate the impacts of upwind state ozone contributions on such a
Tribe since the Proposed Rule’s purpose is to reduce interstate emissions transport that
significantly contribute to nonattainment, or interfere with maintenance, of the 2008 ozone
NAAQS.12 The [NAME OF TRIBE] would disagree strongly with this argument. EPA has a trust
responsibility to these Indian Tribes by which it is held responsible for the protection of Tribal
lands and resources. It matters not if a Tribe has an implementation plan to regulate the ozone
NAAQS. It only matters whether Tribes and their lands and resources are being protected or
adversely impacted by upwind states, i.e., are such states causing Tribal areas to exceed the 2008
ozone NAAQS.
The [NAME OF TRIBE] recommends that EPA revise its technical analysis to ascertain
the impacts of upwind state ozone contributions to Indian Tribes located in the Proposed Rule’s
geographical area. The revised technical analysis should include new source apportionment
modeling runs that take into account the impacts of upwind state ozone contributions to Tribes,
not only those Tribes located in areas classified as nonattainment or maintenance, but all Tribes.
Further, the revised technical analysis should consider any emissions and monitoring data for
Tribal lands that might be pertinent in obtaining a better picture about the amount of ozone
emissions being emitted on and near such lands, and how this might be impacted further by upwind
state ozone contributions.
Indian Country New Source Set-Aside
The CSAPR provides for a NOx ozone-season trading program involving electric
generating units (EGUs).13 An Indian Country new unit set-aside is established for each state
under the CSAPR that provides allowances for future new units locating in Indian Country.14 EPA
reserves 0.1 % of the total state NOx ozone-season emissions budget for new units in Indian
Country within that state,15 which, if unused, are returned to the state’s new unit set-aside and
allocated accordingly.16 The Proposed Rule does not provide that this practice shall change.
Federally-recognized Indian Tribes are sovereign nations with inherent rights ensured by
the U.S. Constitution, treaties and legal precedent. These rights are separate from those enjoyed
by U.S. states and should never be muddied by the federal government. However, the [NAME OF
TRIBE] finds that this has happened under the CSAPR with EPA carving out Indian Country new
source set-asides from state NOx ozone-season emissions budgets, and then allowing these set12
Id. at 75707.
Id. at 75706.
14
See 40 C.F.R. §§ 97.511(b)(2) and 97.512(b).
15
Proposed Rule at 75744.
16
See 40 C.F.R. § 97.512(b)(10).
13
asides to revert back to states if they go unused. There is no logical separation between state and
Tribal jurisdictions under the CSAPR and, in fact, state jurisdictions take precedence since it is
their NOx ozone-season emissions budgets on which Tribes depend if they want to establish a new
EGU within their borders of Indian Country. The [NAME OF TRIBE] disagrees with this
approach.
The [NAME OF TRIBE] recommends that EPA establish a single new source set-aside
for Indian Country (Indian Country Set-Aside) that would assume control over the existing Indian
Country new source set-asides established for each state. This would provide a clear separation
between state and Tribal jurisdictions under the CSAPR and would prevent these set-asides from
reverting back to any state’s new set-aside if they go unused. The [NAME OF TRIBE]
recommends further that EPA either retire any unused set-asides contained in the Indian Country
Set-Aside or, in government-to-government consultation with Indian Tribes, design a sale and
distribution mechanism that would involve selling the unused set-asides to EGUs and distributing
the sale proceeds through grants to Tribes for such purposes as assessing and/or mitigating the
impacts of upwind state ozone contributions to such Tribes.
If EPA does not change the CSAPR to succinctly separate the Indian Country new source
set-asides from states, which the [NAME OF TRIBE] feels strongly about, the Proposed Rule must
provide for new source Indian Country set-asides for each state in which Indian Country is
allegedly located. The [NAME OF TRIBE] finds such set-asides have been advertently omitted
for two states. Specifically, the Poarch Band of Creek Indians is located in Alabama, and the
Pamunkey Indian Tribe is located in Virginia. The [NAME OF TRIBE] recommends that EPA
establish Indian Country new source set-asides for these two states.
Environmental Justice and Hot Spots
EO 12898 establishes federal executive policy on environmental justice. 17 Its main
provision directs federal agencies, to the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income populations in the U.S.18 The
Proposed Rule must fulfill the intent of EO 12898 whose Section 6-606 provides that the EO also
applies to Native American programs.19
EPA acknowledges that many environmental justice communities have voiced concerns
about hot spots caused by emission trading programs, but believes that the CSAPR minimizes
these concerns by reducing ambient concentrations of ozone where they are most needed by
sensitive and vulnerable populations.20 Specifically, the CSAPR sets strict state NOx ozone17
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations (February 11, 1994), at
http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/EXO12898 (last
visited on January 2, 2016).
18
Id.
19
Id.
20
Proposed Rule at 75763.
season emissions budgets to reduce significant contributions to ozone nonattainment and
maintenance areas; implements air quality-assured trading; requires any emissions above the level
of the allocations to be offset by emissions decreases; and imposes strict penalties for EGUs that
contribute to a state’s exceedance of its budget plus variability limit. 21 Yes, the [NAME OF
TRIBE] agrees that the Proposed Rule will cause overall EGU ozone emissions to decrease.
However, the [NAME OF TRIBE] finds that EPA engages in “word speak” when it indicates that
the aforementioned actions, and other actions mentioned in the Proposed Rule, address the issue
of potential hot spots. As noted earlier, EPA has not done its due diligence in conducting a full
technical analysis for the Proposed Rule that considers the impacts of upwind state ozone
contributions to downwind Indian Tribes. Absent such an analysis, how can EPA claim that hot
spots will not exist under the Proposed Rule, particularly in close proximity to Tribal lands? The
[NAME OF TRIBE] finds that such a claim to be unsubstantiated.
The [NAME OF TRIBE] recommends that EPA conduct a thorough environmental justice
analysis of the Proposed Rule that assesses the impacts of upwind state ozone contributions to
downwind Indian Tribes and makes it a required part of the planning process for state
implementation plans. Further, the [NAME OF TRIBE] recommends that EPA conduct a risk
assessment that considers the cultural and subsistence lifestyles of such Tribes that could be
impacted by upwind state ozone contributions.
Conclusion
In summary, the [NAME OF TRIBE] is pleased to provide the aforementioned comments
and recommendations concerning the Proposed Rule.
NOTE—if appropriate, provide a staff contact whom EPA may contact if it has questions.
21
Id.