NFT/NTAA Meeting Las Vegas, NV June 2008

1. NFT/NTAA MeetingLas Vegas, NVJune 2008 Laura McKelvey, Manager Community and Tribal Programs Group Office of Air Quality Planning and Standards (OAQPS) USEPA

2. OAQPS Highlights • NAAQS • Lead NAAQS • Ozone NAAQS Implementation • PM2.5 NAAQS Implementation • Regional Haze • New Source Review • Brick and Boiler MACT • Clean Air Mercury Rule • NSPS for Petroleum Refineries • NSPS for Portland Cement • Area Source Standards • Residual Risk and Technology Review • Voluntary Programs • GHG—Stationary Sources • OAQPS Consultation Policy

3. Ongoing NAAQS Reviews: Schedulesas of 5/14/08 Note: Underlined dates indicate court-ordered or settlement agreement deadlines.

4. 1997 Ozone NAAQS Implementation • Reviewing submitted attainment demonstrations • Response to 2006 D.C. Circuit Court partial vacatur • Classification scheme and contingency measures (Subpart 1 vs. Subpart 2) • Section 185 fees • NSR • Proposed rulemakings in fall 2008 • Remand on Reasonable Further Progress (RFP) emissions credit for reductions outside nonattainment areas • Credit allowed if all emissions from the outside area are accounted for in baseline • Proposed rulemaking in summer 2008

5. 2008 Ozone NAAQS Implementation • EPA reviewing 1997 designations guidance; anticipate new guidance in summer 2008 if necessary • Proposed rulemaking in fall 2008 • Classification scheme (Subpart 1 vs. Subpart 2) • Transition from 1997 Ozone NAAQS to 2008 Ozone NAAQS

6. PM2.5 NAAQS Implementation • Reviewing petitions for reconsideration of PM2.5 implementation rule issued April 2007 • Nonattainment SIPs due April 2008 (1997 PM2.5 standard) • 58 SIPs were due • Agency considering timing for findings of failure to submit

7. Lead NAAQS • On May 1, 2008, EPA proposed to: • Tighten the NAAQS for lead within a range of 0.10 to 0.30 micrograms of lead per cubic meter of air as measured in total suspended particles (TSP) • Seek comment on alternative levels of the standard from levels below 0.10 to 0.50 micrograms per meter • Improve the lead monitoring network to better assess national compliance with the proposed revisions to the lead standards

8. Regional Haze • States were required to submit SIPs by December 17, 2007 • 52 SIPs were due • Agency may submit findings of failure to submit in the next 4-6 weeks

9. New Source Review (NSR) • NSR Implementation Rule for PM2.5 – Final • Includes NSR program requirements for sources that emit PM2.5 and other pollutants that contribute to PM2.5 • NSR Applicability Test for Electric Generating Units (EGUs) – Final • Adds an hourly-based emissions increase test for major modifications at EGUs

10. Brick & Boiler MACT Standards—Implications of Vacaturs • March 2007, the DC Circuit Court vacated the Brick MACT, finding EPA had failed to set floors “at the emission levels actually achieved by the best-performing sources.” June 2007, the DC Circuit Court vacated and remanded the CISWI definitions rule • Scope of the Court decisions will require new information for MACT floors, including process, feedstock, and controls • May require testing • Classification of sources as “boilers” or “incinerators” • Establish bases for subcategories and variability • EPA has interpreted 112(j) case-by-case MACT to apply in cases of complete vacatur • Information collection request pursuant to Paperwork Reduction Act must be renewed prior to implementation of 112(j) regulations • ICR published in FR 4/17/08, for 30-day public comment period and 60-day concurrent OMB review

11. Clean Air Mercury Rule • February 2008, the DC Circuit Court vacated both the 112(n) Rule and subsequently CAMR • On March 24, 2008, EPA and UARG (intervenors) filed for rehearing en banc the request was denied • EGUs remain subject to section 112 requirements as a listed source category • Sources must have a 112(g) MACT determination before beginning actual construction or reconstruction • Must be no less stringent than the emission control achieved in practice by the best controlled similar source as determined by the permitting authority based on available information • Next possible step is to appeal to the Supreme Court

12. NSPS for Petroleum Refineries • April 30, 2008, the Agency amended existing standards to reflect demonstrated improvements in emission control technologies and work practices since the previous standards for petroleum refineries • Included emissions limits for numerous refinery operations and options for control through work practices • Will reduce emissions of PM, SO2, VOC and NOx from 30 petroleum refineries by 31,000 tons per year over next 5 years

13. NSPS for Portland Cement, Industrial Boilers • Under consent decree with Sierra Club to conduct review of cement NSPS and propose findings by May 31, 2008, with final rules by May 31, 2009 • Obtained voluntary remand of boiler NSPS following Mass v. EPA, with schedule discussions underway

14. Area Source Standards • 70 area source categories • Standards promulgated for 40 categories • 30 categories remain to be addressed under March 2006 Court Order • 10 source categories by June 15, 2008 • 10 source categories by December 15, 2008 • 10 source categories by June 15, 2009

15. Residual Risk and Technology Review Phase II • Group 1 • Published NPRM and proposed no additional standards for 8 low-risk source categories in December 2007 • Group 2 • Published Group 2 ANPRM in March 2007 • Plan to propose 5 MACTs (Group 2A) summer 2008 • Plan to propose 3 MACTs (Group 2B) summer 2008 • Plan to propose 3 MACTs (Group 2C) spring 2009 • Published NPRM for Petroleum Refineries in September 2007; consent decree for promulgation in August 2008 • Group 3 • Plan to publish the Group 3 ANPRM in the Federal Register in early 2009

16. Voluntary Programs • Sustainable Skylines • Integrates land use, transportation, energy and air quality planning • Pilots ongoing in Dallas and Kansas City • Wood Smoke • Outdoor Wood Fired Hydronic Heaters • Labeling program for new units—70%+ cleaner • Wood Stove Changeout Campaigns • $28M in health benefits, costs less than $2000/ton PM2.5 reduced, more than 25 locations in US to date

17. Green House Gases—Stationary Sources • Potentially affected stationary source programs: • New Source Performance Standards • Maximum Achievable Control Technology Standards • New source permitting – Prevention of Significant Deterioration, Nonattainment New Source Review • National Ambient Air Quality Standards • Administrator’s ANPRM on Climate • Completed by June 2008

18. OAQPS Consultation Policy - Purpose of Guidance • Introduce to OAQPS staff and managers the basics of government-to-government consultation with American Indian Tribes • Provide steps to determine if there are potential implications or effects on Tribes • Provide advice on how to collaborate and provide outreach to the Tribes • Help determine if a formal Tribal consultation is necessary and, if so, how to proceed

19. Collaboration And Outreach Consultation Tribal Environmental Professionals WITH WHOM Tribal Leaders Gain Tribal perspective and input into overall Tribal interest FOR WHAT Broad impacts, Tribal implications and/or Tribal interest Meetings Conference calls Newsletters Website HOW Offer opportunity for consultation via letters (face-to-face meetings if appropriate) Data gathering starts early in process WHEN Start early but generally no later than proposal Collaboration and Outreach versus Consultation

20. Guidance Consists of 3 Sections • Screening • How to identify potential impacts or effects on Tribes • Collaboration and Outreach • How to provide information to Tribes on actions with potential impacts or effects on Tribes and how to get them involved in the development process • Consultation • How to conduct full consultation with Tribes that may be affected or Tribes that ask to be involved in actions

21. Screening: How to determine if there are impacts or effects on Tribes? • Form to be completed by project lead with initial questions • Are there substantial effects on: • Tribal governments and/or their ability to self-govern? • Trust resources? • Treaty or other rights? • Does this action affect Indian lands or is it close enough to potentially affect Indian lands (e.g., transport issues)? • Does this action establish new federal standards or significant policy or guidance? • Does this action establish a regulation not required by statute or propose a regulation that preempts Tribal law?

22. Collaboration and Outreach • Provides the opportunity for EPA to interact with Tribal environmental professionals (TEP) and other Tribal officials on potential impacts or effects • Determine if govt-to-govt interaction is necessary • Opportunity to inform Tribes of actions • Opportunity to gather info about Tribes from Tribes • Opportunity to determine if Tribes are interested in being involved in action development process • Different than consultation which occurs with Tribal leaders • Steps for conducting effective Collaboration and Outreach included in guidance

23. Screening: How to determine if there are impacts or effects on Tribes? (con’t) • If YES is answered to any of the questions then action has potential implications • More analysis will have to be conducted to determine if actual implications occur • Tribal Consultation Plan is developed • If NO is clearly answered for all of the questions then lead should begin thinking about Tribal outreach efforts • Outreach/Communication Strategy is developed

24. Consultation (full or formal) • Meetings or discussions with Elected Tribal offical leaders or some other formal opportunity • Needed for any action that is targeted directly towards Tribes, has impacts or effects on Tribes or has broad Tribal interest • Examples include Tribal Authority Rule, NSR for Indian Country, Mercury MACT for utilities, Rules for Implementing NAAQS • Consultation with Tribal leaders should occur no later than proposal, however, interaction should have already been initiated with Tribal environmental professionals

25. Consultation Process • A consultation letter is generally sent to all Tribal Leaders asking if they are interested in consulting • Project lead will develop a Tribal consultation plan which serves as a roadmap • Communicate with Tribes • Make available to OMB information submitted by Tribes • Develop a Tribal Summary Impact Statement to be sent to EPA American Indian Environmental Office • Document consultation in preamble

26. Guidance Includes Appendix • Key terms and concepts • Tribal organizations referenced in document • EPA Tribal Air Program Contacts • OAQPS Tribal Representatives • Sample forms and letters

27. Who have we talked too? • Some RTOCs • NTAA • NTOC and Tribal Caucus • TACs • Other EPA office (OGC, AIEO, OAR etc.)

28. Next Steps • Comments by the end of June • OAQPS will “finalize” • Revisit when Agency moves forward with it’s policy • Revisit overtime if we find problems or ways to improve