&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9375.5-02A
TITLE: Revised Interim Final Guidance on Indian
Involvement in the Superfund Program
Directive 9375.5-02A
APPROVAL DATE: November 28, 1989
EFFECTIVE DATE: November 28, 1989
ORIGINATING OFFICE: Superfund
S FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
'E DIRECTIVE DIRECTIVE Di
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United SUteatnviroflmwita^rotectio'nTSScjr"^'^
Washington. DC 20460
QSWER Directive Initiation Request
1. Directive Number
9375.5-02A
2. Originator Information
Name o< Contact Parson
Betti VanEppa, SDC
Mail Coda
OS-240
Office
OERR/OPM/MSDS
Telephone Coda
475-8864
3. Titla
Revised Interim Final Guidance on Indian Involvement in the Superfund Program
Directive 9375.5-2A
4. Suitvna/y of Directive-(include trie! statemeni of purpose) ~~~~~~"~~~"~~~"~~~~~~~
On October 18/ 1989 this directive was issued to provide guidance on the involvement
of federally recognized Indian Tribe/ which are treated substantially the same as
States in the Superfun program. Since that time/ numerous questions have arisen
which necessitated the reissuance of this guidance with minor clarifying changes.
5. Keywords
6a. Does This Directive Supersede Previous Oirecuve(s)?
b. Does It Supplement Previous Direcitve(s)?
I I No [ [ Yea What directive (number, title)
Yes What directive (number. (Me)
I No
7. Drift Level
[ [ A-SignedbyAArt)AA [x | B - Signed by Office Director [ [ C - For Review & Comment I I D - Hi Development
8. Document to be distributed to States by Headquarters?
Yea
No
Thla Raquast Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Betti VanEpps/ Super fund Document Coordinator
10. Name and Title of Approving Official
Henry L. Longest II / Director
Office of Emergency and Remedial Response
Date
November 28,
Date
November 28 /
1989
1989
EPA Form 1315-17 (Rev. 5-47) Previous editions are obsolete.
OSWER OSWER OSWER 0
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MOV ?. 8 '
OFFICE OF
SOLIO WASTE AND EMERGENCY RESPONSE
OSWER Directive 9375.5-02A
MEMORANDUM
SUBJECT:
FROM:
TO:
Revised Interim Final Guidance on Indian Involvement in
the Superfund Program Directive 97T5.5-02A
Henry L. Longest II, Director
Office of Emergency and Reinedia
nse
Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
I. PURPOSE
On October 18, 1989 this directive was issued to provide
guidance on the involvement of federally recognized Indian
Tribes, which are treated substantially the same as States in the
Superfund program. Since that time, numerous questions have
arisen which necessitated the reissuance of this guidance with
minor clarifying changes.
II.
BACKGROUND
The Comprehensive Environmental Response, Compensation, and
Liability Act, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (hereafter referred to simply as
CERCLA) requires the Environmental Protection Agency (EPA) to
afford Indian Tribes substantially the same treatment as it does
to states in the implementation of the Superfund program (CERCLA,
Section 126). Since opportunities for involvement of the
governing bodies of Indian Tribes are substantially the same as
'for State involvement, this guidance is intended to supplement
and reference what is in existence for EPA Regional personnel and
to highlight issues specific to Indian Tribal involvement in the
Frined on
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OSWER Directive No. 9375.5-OPA
Superfund program. In addition, the guidance reflects the
Agency's growing experience with States, Indian Tribes, and
political subdivisions in CERCLA implementation.
This guidance is being issued as Interim Final consistent
with the issuance of the Agency's regulation 40 CFR 35 Subpart O,
"Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions," (54 Federal Register 4132,
January 27, 1989). EPA' s regulation at 4-0 CFR 35 Subpart O and
this guidance replace and supercede the "Revised Draft Guidance
on Indian Involvement in the Superfund Program," OSWER Directive
9375.1-10, August 4, 1988. Comments to 40 CFR 35 Subpart O will
be considered in any revisions to this guidance, as final
guidance is d-eveloped.
This Interim Final guidance is one in a series of Directives
to carry the number 9375.5, which is guidance relating to State,
political subdivision, and federally recognized Indian Tribal
involvement in the Superfund program. We recommend setting aside
a special binder for the Directives in this 9375.5 series.
Indexing and keywording will be done under the Office of Solid
Waste and Emergency Response (OSWER) Directives System.
III. OVERVIEW OF INDIAN TRIBAL GOVERNMENT INVOLVEMENT IN
SUPERFUND
Under CERCLA, EPA has the authority to spend Superfund money
to clean up hazardous waste sites or to take enforcement action
against responsible parties to compel the-, to achieve privately
financed cleanups. The official inventory of potential hazardous
waste sites is found in the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS). CERCLIS
is the data base that is used by EPA Headquarters and Regional
personnel for Superfund site, program, and project management.
EPA may expend funds to respond to immediate threats to human
health or the environment at any hazardous waste site under
CERCLA removal authority. EPA may also expend funds to rank
sites for inclusion on the National Priorities List (NPL), a list
of the nation's most hazardous waste sites. This is called
pre^-remedial response. Once a site is on the NPL, EPA may expend
funds to conduct response, which includes analysis and planning
prior to the selection of an appropriate long-term remedy.
The EPA Regional Administrator determines on a case-by-case
basis whether the proposed cleanup of a site or release should be
conducted under laws or funding sources other than Superfund, the
Fund of last resort. Examples of other laws under which cleanup
may be conducted include: the Urinium Mill Tailings
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OSWER Directive No. 9375.5-02A
Radiation Control Act of 1977, the Surface Mining Control and
Reclamation Act of 1977, and the Resource Conservation and
Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984.
A. Statutory Requirements
Section 121(f)(l) of CERCLA, and Section 300.500 of the
National Oil and Hazardous Substances Pollution Contingency Plan
(NCP) proposed rule (53 Federal Register 51509, December 21,
1988) require EPA to ensure "substantial and meaningful involve-
ment" of States in Superfund response actions. Section 126 of
CERCLA contains specific provisions for the general treatment of
Indian Tribes as States. Together these requirements dictate
that EPA interact directly with Indian Tribes and provide the
governing bodies of Indian Tribes the opportunity to be involved
in the Superfund program.
Section 104(d)(l) of CERCLA, authorizes EPA to enter into
Cooperative Agreements with States or Indian Tribal governments
to carry out response actions authorized in Section 104, if the
State or governing body of the Tribe is deemed capable.
Therefore, under Section 104, EPA may provide the necessary funds
to States or the governing bodies of Indian Tribes either to
conduct response actions as the lead agency (40 CFR 35.6100 and
35.6110), or to defray the cost of their involvement as a support
agency during an EPA-lead response. (See support agency
Cooperative Agreement requirements in 40 CFR 35.6900 through
35.6920.)
To be afforded substantially the same treatment as States
under Section 104 of CERCLA, the governing body of the Indian
Tribe must:
Be federally recognized; and
Have a tribal governing body that is currently
performing governmental functions to promote the
health, safety, and welfare of the affected population
or to protect the environment within a defined
geographic area; and
Have jurisdiction over a site listed in CERCLIS or a
site that is proposed or listed on the NPL at which a
Fund-financed response is contemplated.
B. Regulatory Requirements
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OSWER Directive No. 9375.5-02A
States and federally recognized Indian Tribes that wish to
assume a lead or support agency role during Superfund response
may seek Superfund money to do so pursuant to the requirements
set forth in 40 CFR 35 Subpart O. This regulation specifies that
the governing body of a federally recognized Indian Tribe must
comply with applicable Superfund assistance requirements except
those concerning intergovernmental review (40 CFR 35.6060 and
35.6110) and certain criteria regarding the development of
response-related health and safety plans (40 CFR 35.6055 and
35.6105(a) (4)). In addition, the requirements set forth in 40
CFR 35.6800 are applicable to EPA-lead responses under Indian
jurisdiction.
Copies of the Interim Final regulation 40 CFR 35 Subpart O
are available in each EPA Regional grants office and the Grants
Administration Division in EPA Headquarters.
C. Federally Recognized Indian Tribes
Section 101(36) of CERCLA defines the term Indian Tribe to
mean "any Indian Tribe, band, nation, or other organised group or
community, including any Alaska Native village but not including
any Alaska Native regional or village corporation, which is
recognized as eligible for the special programs and services
provided by the United States to Indians because of their status
as Indians."
The Bureau of Indian Affairs (BIA) publishes a. list of
federally recognized Tribes in the Federal Register on an annual
basis. The BIA list is composed of two parts:
Indian Tribal entities recognized and eligible to
receive services from the United States Bureau of
Indian Affairs, and
Alaskan native entities recognized and eligible to
receive services from the United States Bureau of
Indian Affairs.
In some instances, a Tribe that has been federally recognized may
not have been added to the BIA list since the last revision. In
these cases, verification of status can be made through documen-
tation provided by the Tribe or through the Branch of Acknowledg-
ment and Research, BIA Headquarters, in Washington, D.C.
D, Jurisdictional Authorities
EPA must determine Tribal, State, or Regional jurisdiction
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OSWER Directive No. 9375.5-02A
for sites or releases on, or adjacent to, an Indian reservation
when enforcement, removal, pre-remedial, or remedial response is
to be taken.. The considerations for each jurisdictional
determination are discussed below.
1. Indian Tribes
A determination of whether a Tribe has jurisdiction over a
site should be made by the Office of Regional Counsel based on
documentation submitted by the governing body of the Indian
Tribe. Regional Counsels may confer with Headquarters and other
Regional Offices in making jurisdictional determinations since
expertise in Indian law may vary from Region to Region.
Assistance in determining Tribal jurisdiction also is available
from BIA.
EPA is not granting, endorsing, or revoking any
jurisdictional claims in making the determination that an Indian
Tribal government has jurisdiction over an area adequate to meet
CERCLA's requirements to be treated essentially as a State. The
courts usually have held that Tribes retain jurisdiction over
non-Indian lands within the boundaries of their reservations, if
activities on such lands affect the health and safety of the
Tribes; CERCLA waives the 104(c)(3) assurances for all lands
"within the borders of an Indian reservation."
2. States
States generally lack regulatory jurisdiction on reservation
lands. When a release is contained exclusively within the
boundaries of an Indian reservation, States may be included in a
cleanup, if appropriate. When a hazardous waste release affects
lands both within and beyond the boundaries of lands within the
jurisdiction of an Indian Tribal government, State participation
is necessary.
EPA will encourage coordination between States and Indian
Tribes when releases originate in the jurisdiction of one and
affect the other. The Region will evaluate requests for lead
agency designation to undertake response at such sites on a
case-by-case basis in consultation with the affected governing
body of the Tribe and State. Federal lead may be appropriate for
responding to releases that impact both the State and the Indian
Tribe. In these instances, support from both the State and
governing body of the Indian Tribe is desirable, and both
entities may request assistance to defray the cost of involvement
as support agencies. (See "Requirements for Support Agency
Activities Under Cooperative Agreements," 40 CFR 35.6900 through
35.6920.) A three-party agreement among EPA, the State, and the
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OSWER Directive No. 9375.5-02A
governing body of the Indian Tribe is recommended to define and
coordinate roles, and ensure compliance with the requirements of
Section 121 of CERCLA, for response activities prior to remedial
action (see Section VI.B of this directive). For the remedial
action phase of a Superfund response, a Superfund State Contract
(SS-C) may be required (see 40 CFR 35.6800).
3. EPA Regions
Although the Office of Management and Budget (OMB), in
Circular No. A-105 "Standard Federal Regions" designates a single
EPA Ragion to be responsible for each Indian reservation or for
those lands within a Tribe's jurisdiction that cross Regional
boundaries, OMB has agreed that federally recognized
Indian Tribes may deal directly with a Region other than the one
officially designated. However, this arrangement should be
temporary and for a particular project, and should be documented
in writing.
Lead agency designation for responding to releases that
impact both the Indian Tribe and State in another Region may
require a Federal-lead. In these instances, an agreement among
the -governing body of the Indian Tribe and the impacted States
and EPA Regions should be developed to define and coordinate
roles, and to ensure compliance with the requirements of Section
121 of CERCLA.
IV. THE ROLE OF INDIAN TRIBAL GOVERNMENTS DURING RESPONSE
A. Pre-Remedial Response
The objective of the pre-remedial program is to examine
every site that is on EPA's inventory of i_otential hazardous
waste sites in CERCLIS and to determine if the site requires
further response under CERCLA. The pre-remedial process begins
with a preliminary assessment (PA), which involves a site visit
and an evaluation of existing data, followed by a site inspection
(SI), if warranted, to gather and analyze samples of potentially
impacted air, water, and soil as well as to gather additional
information required to identify potential priority sites.
EPA policy requires that all PAs must be completed within
one year of site entry into CERCLIS. This is true for all sites
in CERCLIS, including those on lands under the jurisdiction of
Indian Tribal governments. Indian Tribes can participate in
identifying sites to be added to CERCLIS by reporting releases
within their jurisdiction to the National Response Center (NRC).
Indian Tribal governments should call EPA Regions directly in
non-emergency situations. To assist Tribal governments in
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OSWER Directive No. 9375.5-02A
identifying potential hazardous waste sites, EPA has developed a
handbook detailing Superfund's site discovery program specifical-
ly, and the Superfund program in general. EPA is distributing
this handbook, which tells what to do if a potential site is
discovered, to all Indian Tribes. Additional copies will be
available through EPA Regional Offices.
Whenever a site within the jurisdiction of an Indian Tribal
government is in CERCLIS, EPA Regions will consult [as specified
in the proposed NCP [40 CFR 300.505(b)(2)] with the Tribal
government during the Superfund process to establish priorities
for Fund-financed response activities. These priorities result
in the Agency's Superfund Comprehensive Accomplishments Plan
(SCAP), which lists all sites and activities to be funded in each
fiscal year. Inclusion of a site in the SCAP is necessary for
any remedial funds to be expended on a site, although
pre-remedial funding does not require listing of specific sites
on the SCAP.
For Indian Tribal-lead activities, requirements and
procedures for funding through Cooperative Agreements with EPA
are substantially the same as those for States. PAs and Sis are
conducted in the same manner for sites within Tribal jurisdiction
as for all other sites in CERCLIS. PAs and Sis may be conducted
as either Federal-lead or Indian Tribal-lead via a Cooperative
Agreement consistent with the pre-remedial Cooperative Agreement
requirements in 40 CFR 35.6060. During Federal-lead pre-remedial
response at sites within the jurisdiction of a federally recog-
nized Indian Tribe, EPA will consult with the governing body of
an Indian Tribe on PA/SI data gathering and analyses.
Data collected during PAs and Sis are used to evaluate
whether sites qualify for CERCLA remedial response. These data
are used to calculate Hazard Ranking System (HRS) scores that
reflect the relative risks from actual or potential migration of
substances through ground water, surface water, and air. One set
of criteria is used to rank all sites regardless of location.
Sites that have an HRS score above 28.5 and meet the
criteria^established by the NCP are eligible for inclusion on the
list of candidate sites on the NPL for Fund-financed remedial
response. Sites that do not score 28.5 or above and are not
proposed for the NPL are not eligible for Fund-financed remedial
response under CERCLA. However, if the situation warrants, a
removal may be undertaken to mitigate an immediate threat.
Removal actions are discussed later in this section of the
guidance.
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OSWER Directive No. 9375.5-0;:A
EPA will ensure that the governing body of a federally
recognized Indian Tribe is given substantially the same
opportunities as a State for involvement in pre-remedial
activities, which are required -nder CERCLA:
Consultation on the information to be used in develop-
ing the HRS scores for sites within Indian jurisdiction
before EPA performs the quality control review of the
HRS package for each site.
Review of sites proposed by EPA for listing on the NPL.
Note however, that under CERCLA Section 126 (a), a tribe
is not assured of at least one site on the NPL.
Regional Offices will ensure that the governing bodies of
Indian Tribes are provided these oj/portunities for involvement in
pre-remedial actions taking placo on lands within their jurisdic-
tion to ensure that the intent of Section 121 of CERCLA
and the NCP (4O CFR 300.515(c)) is carried out.
B. Remedial Response at NPL Sites
Remedial response is conducted in the same manner for NPL
sites whether the sites are located on, or directly impact Indian
land under Tribal jurisdiction. All existing program
regulations, requirements, policies, and procedures for remedial
response are applicable. Remedial response consists of remedial
investigation (RI), feasibility study (FS), remedial design (RD)
and remedial action (RA). Regardless of lead-agency designation,
Indian Tribes will be afforded substantially the same opportunity
as States to become involved in the response. Consistent with
CERCLA Section 126(a) and as provided in the proposed NCP, that
involvement may include:
Identification and attainment of Indian Tribal
applicable or relevant and appropriate requirements
(ARARs), standards or other criteria, guidance and
advisories, including cultural requirements or
standards. Indian Tribal ARARs are promulgated Tribal
laws or regulations and are recognized similarly to
State ARARs.
Participation in the development of the remedial action
plan and identification of alternative responses.
Opportunity to concur on remedy selection.
Opportunity for joint inspection of the remedy by EPA
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OSWER Directive No. 9375.5-02A
and the Tribal government, which should take place at
conclusion of construction of the remedy prior to the
operational and functional phase of the remedial
action.
Consultation with and concurrence of the Tribe on
deletions from the NPL.
If the Indian Tribal government does not concur with the
remedy, the Region should follow a dispute resolution process
similar to that used for State nonconcurrence or resolution of
differences between agencies, as described in the preamble to
Subpart F of the proposed NCP.
EPA's regulation at 40 CFR 35.6800(a)(1) requires a
Superfund State Contract (SSC) with a federally recognized Indian
Tribe before EPA initiates a Federal-lead remedial action at a
site under Indian jurisdiction. Federally recognized Indian
Tribes are exempt by law from providing the CERCLA Section
104(c)(3) assurances. EPA will provide for off-site disposal and
be responsible for operation and maintenance (O&M) of the remedy,
although another Federal Agency may manage the O&M of the site.
A case-by-case determination may be made as to who will oversee
the responsibility for O&M. O&M may be managed by the Tribe if
EPA and the Tribe find this acceptable. Pursuant to 40 CFR
35.6810(e) and Section 104(j) of CERCLA, however, the federally
recognized Indian Tribe must assure EPA that it will accept
transfer of any interest in real property acquired by EPA. An SSC
with the federally recognized Indian Tribe is the required
mechanism for obtaining this assurance prior to initiation of an
EPA-lead remedial action.
C. Removal Actions
Removal actions are a mechanism for conducting quick
response to protect public health and the environment from
releases or threats of releases of hazardous substances.
Fund-financed removal actions can be conducted at NPL or non-NPL
sites when the criteria established in the proposed NCP (40 CFR
300.410 and 300.525) are met. All removals on Indian lands must
have (concurrence by EPA Headquarters, because they are considered
nationally significant or priority-setting sites.
Removal actions may be taken to respond immediately to an
emergency such as a chemical spill or explosion; other time-crit-
ical situations that, while not emergencies, require action
within six months to protect public health and the environment;
or non-time-critical situations that, while posing a near-term
threat, allow for a planning period of at least six months before
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OSWER Directive No. 9375.5-02A
action must be taken. Specific activities frequently conducted
using removal authority include: installing security fencing,
controlling the release or spread of hazardous substances,
providing alternative water supplies, and removing drums
containing hazardous substances. CERCLA limits the scope of
removal projects to 12 months or $2 million, although the statute
provides for exemptions in certain circumstances.
Indian Tribal governments, like States, may take the lead on
non-time-critical removals. Regions must seek approval on
Indian-lead removals from EPA Headquarters. EPA will also
consult with federally recognized Indian Tribes, just as it does
with States, prior to conducting EPA-lead removal actions at
sites on or affecting a reservation. This consultation includes
discussions on what, if any, post-removal site control may be
needed; how it will be conducted; and who will conduct the
post-removal activities. In addition to contributing to the
planning process, Indian Tribes may participate in National
Response Center (NRC) and Regional Response Team (RRT) response
c.nd removal activities as they pertain to lands within the
jurisdiction cf an Indian Tribal government. In this manner EPA
ensures that Indian Tribes have an opportunity to be involved in
emergency response planning.
D. Enforcement Actions
Under CERCLA Sections 106 and 107, EPA has the authority to
take enforcement actions against responsible parties to compel
privately financed cleanups or to pursue recovery of response
costs. When hazardous substance releases occur on lands within
the jurisdiction of an Indian Tribal government, the governing
body of the Indian Tribes may pursue independent enforcement
actions against responsible parties. Indian Tribes are not
eligible to receive enforcement-lead cooperative agreements. EPA
retains primary enforcement authority under CERCLA.
Indian Tribal governments may be afforded the opportunity to
participate in EPA negotiations with responsible parties for
actions on land under the jurisdiction of the Tribal government,
or which directly impact such land. The Regional Office will
notify the governing body of the Tribe of such negotiations. If
the Tribal government participates in the negotiations, it may
become a signatory to any settlement document, in the same way
States may pursuant to Section 121(f)(2) of CERCLA.
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OSWER Directive No. 9375.5-02A
V. COOPERATIVE AGREEMENTS WITH INDIAN TRIBAL GOVERNMENTS
The governing body of a federally recognized Indian Tribe
that has jurisdictional authority over a CERCLIS or NPL site may
act as the lead agency to conduct Fund-financed response (40 CFR
300.515(b)). Alternatively, an Indian Tribal government may
receive funding to defray the cost of its involvement in the
Superfund program when acting as the support agency. The
requirements for lead and support agency Cooperative Agreements
with Indian Tribal governments are set forth in 40 CFR 35
Subpart 0. Funds for lead/support agency activities may be
provided in a Superfund Cooperative Agreement when:
The Tribal governing body is willing to designate an
agency/office as a single point of contact to interact
with EPA on Superfund matters. In most cases, this
office should be performing essential governmental
functions to promote the health and safety of the
affected population within a defined geographic area
(analogous to a State agency single point of contact
designated by a governor). If the applicant seeks to
take the lead in a response action, it must have in
place an acceptable procurement procedure that meets
EPA requirements on procurement under Cooperative
Agreements (40 CFR 35.6550 through 35.6610).
The applicant for Superfund assistance can demonstrate
in the narrative or attachments to its Cooperative
Agreement application that the functions to be
performed for Fund-financed response at CERCLIS or NPL
sites are within the scope of its jurisdiction
(analogous to States having jurisdiction only over
lands within State borders).
The applicant for Superfund assistance can demonstrate
in the Statement of Work to the Cooperative Agreement
that it has the ability to carry out or oversee "any or
all" response actions that it seeks to perform.
However, Indian Tribes are not eligible to receive
enforcement-lead Cooperative Agreements. (See Section
IV.D. of this guidance.)
The applicant for Superfund assistance has in place an
acceptable accounting system to receive and track
Superfund monies (as required for all recipients of
Federal funds).
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OSWER Directive No. 9375.5-02A
A. Pre-Application Assistance
Cooperative Agreement applications from the governing bodies
of Indian Tribes are acted upon in the same manner as those from
States. Applications for Fund-financed response rnu^t include a
statement of the activities to be undertaken at the site and an
itemized budget for each activity. Regional offices, at their
discretion, may assist the governing bodies of federally recog-
nized Tribes in developing draft Cooperative Agreement applica-
tion packages and may provide other technical assistance to
Tribal governments to enable them to enter into Cooperative
Agreements for Superfund response. The Regional grant and
program offices should explain the application requirements in
detail to the Tribal government, to avoid confusion regarding
general versus Superfund-specific regulatory requirements (40 CFR
31 - Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments vs. 40 CFR
35 Subpart O).
B. Award Procedures
EPA will notify an Indian Tribe of a Cooperative Agreement
award, and establish a Letter of Credit, as addressed in
40 CFR 35 Subpart O. A Letter of Credit (LOG) is a financial
document, certified by an authorized official of a Federal
program agency and specifying a dollar limit available to a
designated payee (the Indian Tribe). The LOC enables the
recipient to withdraw cash from the U.S. Treasury concurrently
with disbursements. Tribal governments must draw down their
reimbursements on the LOC by site and activity (Guidance on
Letter of Credit is available from the EPA Office of the
Comptroller). The Indian Tribal governing bodies will report,
just as States are required to report, on expenditures of Federal
funds. Once EPA awards a Cooperative Agreement, Indian Tribes
are subject to the same Federal assistance requirements as States
in implementing the terms of the agreement and complying with the
regulatory requirements of 40 CFR 35 Subpart -O.
VI. ADDITIONAL OPPORTUNITIES FOR INDIAN TRIBAL INVOLVEMENT
A. Core Program Cooperative Agreements
^
Dependent upon the number of sites in CERCLIS and on the
NPL, the governing bodies of Indian Tribes, like States, may also
enter into Cooperative Agreements for non-site-specific activi-
ties to support their involvement in the implementation of the
Superfund program in their jurisdictions. Regions should consult
with Headquarters to determine whether a Core Program Cooperative
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OSWER Directive No. 9375.5-02A
Agreement is appropriate for a specific Tribal government (see
also 40 CFR 35.6850 through 35.6875).
B. Superfund Memorandum of Agreement
EPA is proposing in its revisions to the NCP that States
enter into a general agreement with EPA to clarify the roles and
responsibilities of each agency during interaction on CERCLA
implementation. This agreement is called an EPA/State Superfund
Memorandum of Agreement (SMOA). A detailed explanation of this
agreement can be found in the "Interim Final Guidance on
Preparation of a Superfund Memorandum of Agreement," (OSWER
Directive #9375.0-01, May 8, 1989). EPA Regional Offices and the
governing bodies of Indian Tribes may want to enter into a SMOA
when Superfund response is expected to be significant or cross
EPA Regional or State boundaries.
The purpose of a SMOA with an Indian Tribal government is
to:
Establish the nature and extent of EPA and Tribal
interaction during site-specific response;
Define the roles and responsibilities of all parties to
the SMOA and may, if appropriate, identify the lead and
support agencies on a site-specific basis;
Describe the interaction of all parties regarding
review of key documents and other appropriate coordina-
tion points; and
Describe time frames for coordination to ensure that
response is not delayed.
A SMOA can be site-specific if there is only one site on or
adjacent to lands within a single Tribal government's jurisdic-
tion, or generic if there are several sites of concern. For
releases that extend onto or migrate off Indian reservations, a
three-party SMOA may be developed among EPA, the governing body
of the Indian Tribe, and the State. In addition, when lands
within the jurisdiction of a Tribal government cross Regional
borders, a multi-Regional State-and-Tribal government SMOA should
be negotiated to clarify roles and responsibilities.
VII. REGIONAL RESPONSIBILITIES FOR ENSURING INDIAN TRIBAL
INVOLVEMENT DURING RESPONSE
In addition to treating Tribes substantially the same as
States under Section 121(f) of CERCLA, EPA Regions are
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OSWER Directive No. 9375.5-02A
responsible for inviting federally recognized Tribes to partici-
pate in training, workshops, conferences, and meetings that
provide technical assistance and involvement for States in the
Superfund program. Each EPA Region also has a Regional Indian
Coordinator who maintains a liaison with Indian Tribal governing
bodies and jurisdictions. In this regard, such things as mailing
lists, publications, guidance documents and other State contact
or media materials should be inclusive of Indian Tribal govern-
ments to afford them equal treatment as States. Information and
assistance on -these topics may be obtained from the EPA Indian
Coordinator in each Region.
VIII. CONTACTS
Should you have any questions or comments regarding the
Superfund Administrative regulation you may contact:
Subject Matter Contact
General Jan Baker FTS: 382-2443
General Nadine Shear FTS: 382-2450
Cooperative Agreements Richard Johnson FTS: 382-5296
Enforcement Kathy MacKinnon TTS: 475-6771
Enforcement Sara Nicholas FTS: 475-8723
Legal questions David Coursen FTS: 382-5313
Pre-remedial actions Caroline Previ FTS: 382-3335
Removal actions Betty Zeller FTS: 382-7735
cc: OERR Division Directors and Branch Chiefs
Regional Superfund Branch Chiefs
Director, Grants Administration Division
Director, Financial Management Division
Director, Office of Waste Programs Enforcement
Director, Office of Federal Activities
Regional Indian Coordinators
Regional Assistance Management Contacts
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