UNITED STATES ENVIRONMENTAL PROTECTION AG
               WASHINGTON D,C. 20460
                                                        AUG 0 4988

                                                    HAZARDOUS WASTE DflfiSiQN
                                      .OSWER  Directive No.  9375.1-10
                                                           OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONS!
MEMORANDUM

SUBJECT:



PROM:



TO:
Revised Draft Guidance on Indian Involvement  in the
Superfund Program

Henry L. Longest II, Director     '~)/|/
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                              - 2 -


     The draft guidance was also changed to eliminate the use  of
the term "Indian lands" since the term confused many reviewers
and seemed to conflict with the term "Indian country" which has
been used by EPA in implementing other statutes.  SARA refers  to
the governing bodies of Indian tribes but does not address Indian
lands or Indian country, so this guidance discusses the involvement
of these governing bodies in Superfund activities at sites within
the governing bodies'  jurisdiction.

     Since the original guidance document has been revised
significantly, I am providing you with another opportunity to
review and comment on  this guidance.  Please send your comments
to Jan Wine (WH-548E on 382-2443) no later than August 24, 1988.
cc:  Regional Indian Coordinators
     Director, Office of Federal Activities
     Office of General Counsel
     Director, Grants Administration Division
     Director, Financial Management Division
     Director, Office of Waste Programs Enforcement
     OERR Division Directors and Branch Chiefs
     Regional Superfund-Branch Chiefs

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                                                 DRAFT
                                  OSWER Directive No. 9375.1-10
                      REVISED  DRAFT  GUIDANCE
                                ON
           INDIAN INVOLVEMENT  IN  THE  SUPERFUND PROGRAM
     The Comprehensive  Environmental Response, Compensation, and
Liability Act (CERCLA),  as  amended  by the Superfund Amendments
and Reauthorization  Act  of  1986  (SARA), 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.   Opportunities  for involvement of the governing
bodies of Indian  Tribes  are substantial l.y- the same as for State-
involvement and do  not  need elaboration in this guidance, since
regulations and detailed  guidance  adddressing State involvement
already exist.  This guidance  is intended to supplement and
reference what is  in existence for  EPA Regional personnel.
                        ;
                         /
I.    Background

     Under CERCLA,  as amended, EPA  has the authority to spend
Superfund money to  clean  up hazardous waste sites or to take
enforcement action  against  responsible parties to compel them to
achieve privately-financed  cleanups.  In addition to responding
to  immediate threats to  human  health or the environment at any
hazardous waste site under  removal  authority, EPA may also

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                                   OSWER  Directive No. 9375.1-10
expend funds to perform long-term  cleanups at sites on the National
Priorities List (NPL),  a  list  of the  nation's most potentially
dangerous hazardous waste sites.   These  long-term cleanups are
called remedial response, and  involve extensive analyses and
planning prior to selection  of  appropriate remedies.

     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 Uranium Mill Tailings
Radiation Control  Act  of  1978,  the Surface Mining Control  and
Reclamation Act of 1977,  and the Resource Conservation and
Recovery Act, as  amended.

A.   Statutory Requirements
                         /

     Section 121(f)(l)  of CERCLA,  as  amended, requires EPA to
ensure "substantial and  meaningful involvement" of States  in
Superfund response actions.  Section  126 of CERCLA, as amended,
contains specific provisions for the  general treatment of  Indian
Tribes as States.   Together  these  two requirements dictate that
EPA provide the governing bodies of Indian tribes with an
opportunity for involvement  in  the Superfund program.
Section 104(d)(l)  of CERCLA, as amended, authorizes EPA to
enter into Cooperative  Agreements  with States or  Indian Tribal

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                                                   DRAFT
                                     OSWER  Directive No. 9375.1-10
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
to either conduct response actions  or  to defray the cost of their
support to EPA during a  Federal-lead response.
     To be afforded substantially  the  same treatment as States
under CERCLA, the governing body of the Indian Tribe must:

          be Federally-recognized;

          have jurisdiction over a  site listed in the
          Comprehensive  Environmental  Response, Compensation,
          and Liability  Information System  (CERCLIS) ; or

          have jurisdiction over a  recognized NPL site.
                      /
B.   Jurisdictional Authorities
     EPA must determine  Tribal, State, or Regional jurisdiction
for sites or releases on  or adjacent to an  Indian reservation
when pre-reaedial, remedial  or  removal 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

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                                                        DRAFT
                                     OSWER Directive No. 9375.1-10
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 the Bureau
of Indian Affairs (BIA).

     Section 101(36)  of CERCLA, as amended, defines the term Indian
Tribe to mean "any Indian Tribe, band, nation, or other organized
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."

     BIA publishes a  list of  Federally-recognized Tribes in the
Federal Register on  an annual basis.  The  BIA list is comprised
of two parts:

          Indian Tribal entities recognized and eligible to receive
          services from the United States  Bureau of Indian Affairs

          Alaskan native entities  recognized and eligible to
          receive services from the United States Bureau of
          Indian Affairs.

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                                                   DRAH
                                     OSWER  Directive  No. 9375.1-10


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 documentation
provided by the Tribe or through  the appropriate Regional or area
office of 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  sites
within the exterior boundaries of their  reservations,  if activi-
ties on such lands affect the health and  safety  of  the Tribes.

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 at a Tribe's request.  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 desirable.   EPA  should  facilitate  coordination
between States and Indian Tribes  when  releases impact  one or the
other's jurisdictional authority.
     The Region will evaluate requests  for  lead  agency designation

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                                    OSWER Directive  No.  9375.1-10
                                                      DRAFT
to undertake response at such sites on a  case-by-case  basis in
consultation with the affected governing  body  of  the Tribe and
State.  Lead-agency designation for responding to  releases that
impact both the State and the Indian Tribe may require a  Federal-
lead.  In these instances support from both the State  and governing
body of the Indian Tribe is  desirable. A three party  agreement
among EPA, the State, and the governing body of the  Indian Tribe
is also strongly recommended to define and coordinate  roles and
ensure compliance with the requirements of section 121 of CERCLA,
as amended.

3.   EPA Regions
     ^•^™™^*^™^™^™^™^™^™^™^~                        -»
     The Office of Management and Budget  (OMB) in  its  departmental
directive, OMB Circular No.  A-105,  designates  a single Region to
be responsible for each Indian reservation or  for  those  lands
within one Tribe's jurisdiction that cross Regional  boundaries.
                       /
When a source of contamination exists on .an Indian reservation
that is in an EPA Region that is not the  designated  OMB  lead, the
Region should notify the designated lead  Region and  request written
approval to assume lead responsibility for conducting  or  overseeing
response activities at the site.

11.  The Role of Indian Tribal Governments During  Response

     The governing bodies of Federally-recognized  Indian  Tribes
that have jurisdictional authority  over a site may act as the
lead agency to conduct Fund-financed response  action.  Alternatively,

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                                                     DRAFT
                                    OSWER Directive No. 9375.1-10

an Indian Tribal government  may  receive  funding to defray the
cost of its involvement  in the Superfund program when acting as
the support agency.   Funds for support/lead agency activities may
be provided in a Superfund cooperative agreement if:
1)   The Tribal governing body is  willing to designate an agency/
     office to interact  with EPA on Superfund matters that is
     currently performing essential governmental functions to
     promote the health  and  safety of the affected population
     within a defined geographic area.   (This requirement is
     analogous to a  State single agency  point of contact
     designation by  a governor.)           -                      1

2)   The applicant for Superfund assistance can demonstrate in the
     narrative or attachments therein of 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.
3)   The applicant for Superfund assistance can demonstrate an
     ability (just like  a State  applicant for Federal assistance)
     to carry out "any or all" response  actions (with the exception
     of criminal actions for Tribal governments) that it seeks to
     perform as described in the Statement of Work to the
     Cooperative Agreement application.
4)   The applicant has in place  an acceptable accounting system
     to receive and  track Superfund monies.

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                                     OSWER  Directive No. 9375.1-10
5)   And, for lead-agency designation  only, the applicant has in
     place an acceptable  procurement procedure that meets EPA
     requirements on procurement  under Cooperative Agreements.

     The following section describes the opportunities for Indian
Tribal involvement in Superfund  response actions as either a lead
or support agency.
A.   Pre-Remedial Response

     The objective of the pre-remedial  program is to examine
every site that is on EPA's  inventory  of potential hazardous
waste sites in CERCLIS and determine if the site requires further
response under CERCLA, as amended.  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 and additional
information needed to assess  a site.

     EPA policy requires  that all PAs  must be  completed within
one year of entry onto 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).
To assist Tribal governments  in  identifying potential hazardous
waste sites, EPA has developed a  handbook detailing Superfund's

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                                                       UK AM
                                   OSWER Directive No. 9375.1-10

site discovery program specifically and the Superfund program
in general.  This handbook will be distributed 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 annually 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 Accomplishment
Plan (SCAP), which lists all sites and activities to be funded
in each fiscal year.  Inclusion in the SCAP is necessary for  any
funds to be expended on a site.
     PAs and Sis may be conducted as either Federal-lead or Indian
Tribal-lead via a Cooperative Agreement consistent with Agency
guidance on PA/SI activities.  During Federal-lead pre-remedial
response at sites within the jurisdiction of a Federally-recognized
Indian Tribe, EPA will consult with the governing body of  an  Indian
Tribe on PA/SI data  gathering and analyses.  For Indian Tribal-
lead activities, requirements and procedures for funding through
Cooperative Agreements with EPA are substantially the same as those
for States and are discussed in more detail in Section III of this
guidance.  PAs and Sis are conducted in the same manner for sites
within Tribal jurisdiction as for all other sites in CERCLIS.
     Data collected during  PAs and Sis are used to evaluate
whether sites qualify for CERCLA remedial response.  These data

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                                    OSWER Directive No.  9375.1-10
are used to calculate Hazard Ranking System (HR-S) scores that
reflect the relative risks from actual  or potential  migration of
substances through ground water, surface Mater, and air.  One
set of criteria is used to rank all  sites regardless of  location
in a State or on or near a reservation*

     Sites that score above 28.5 and meet the criteria  established
by the NCR 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, as
amended.  However, if the situation  warrants, a removal  may  be
undertaken to mitigate a threat.  RemovaV actions are discussed-
later in this section of the guidance.

     EPA will insure that the governing body of a Federally-
recognized Indian Tribe is given the same opportunities  as a
State for involvement in pre-remedial activities, which  are
                     /
required under CERCLA,'as amended:
          Consultation on the information to be used in  developing
          the MRS scores for sites within Indian jurisdiction
          before EPA performs the quality control review of  the
          MRS package for each site.

          Review of sites proposed for listing on the NPL.

     Regional offices will ensure that the governing bodies  of
Indian Tribes are provided these opportunities for involvement in
pre-remedial actions taking place on lands within their jurisdiction

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                                    OSWER  Directive  No. 9375.1-10
B.   Remedial Response at NPL Sites
     Remedial response Is  conducted  in  the  same manner foif-NRL
sites that are located on  or near Indian  reservations as for all
other NPL sites.

     All existing program  requirements, policies, and procedures
for remedial response are  applicable to Indian Tribal-lead (with
the exception of  statutory assurances,  as explained  in Section  III
on Cooperative Agreements).   EPA  will provide an opportunity for
substantial  Indian Tribal  involvement in  all phases  of the remedial
response including:   remedial  investigations (RI), feasibility
studies (FS), remedial  design  (RD) and  remedial action (RA).   V

     Regardless of which  agency or entity assumes lead responsibi1it;
for the remedial  action,  under section  121  of CERCLA, as amended,
Indian Tribes are afforded the same  opportunities as States for
involvement  in remedial  response  taken  on lands within their
                    /
jurisdiction.  That  1^:

          Indentlfication  and  attainment  of  Indian Tribal applicable
          or relevant and  appropriate requirements (ARARs),
          standards  or other criteria,  guidance and  advisories.
          Indian  Tribal  ARARs  are promulgated Tribal laws or
          regulations and  are  recognized  similarly to State ARARs.

          Participation  in developing the remedial action plan
          and identifying  alternative responses.

          Opportunity to concur on  remedy selection.

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                                  OSWER  Directive No. 9375.1-10
          The opportunity  for joint  inspection of the remedy by
          EPA 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 noncurrence or resolution of
differences between agencies,  as described in the preamble to
Subpart F of the proposed  revisions  to tJie National Contingency
Plan (NCR).
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  NCP  are  met.  Indian Tribes should
be  referred to the National  Response  Center  (NRC) when they
believe a hazardous waste  emergency  may  exist on their lands for
which a removal action would  be  appropriate.
     Removal actions may be  taken to  respond immediately to an
emergency such as a chemical  spill or explosion; other time-
critical situations that,  while  not  emergencies, require action
within six months to protect  public  health and the environment;
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                                     OSWER  Directive No. 9375.1-10
or non-time critical  situations  that,  while posing a near-term
threat, require a planning period  of  more than six months before
action can be taken.   Specific  activities frequently conducted
using removal authority include:  installing security fencing,
controlling the release or spread  of  hazardous substances, provid-
ing 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.
     States may take  the lead  on  non-time-critical removals in
limited circumstances with prior  approval from Headquarters.  To
date, there has been  only one  Cooperative Agreement of this sort
which was awarded prior to CERCLA  reauthorization.  EPA  is not
prepared to enter into Cooperative Agreements with Indian Tribes
for non-time-critical removal  activities at this time until the
Agency revises its guidance  on  State-lead removals under SARA.
However, EPA will con'sult with  Federally-recognized Indian
Tribes just as it does with  States prior to conducting removal
actions at sites on or near  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 postrremoval activities.   In  addition to contributing to the
planning process, Indian Tribes  may participate  in NRC and Regional
Response Team (RRT) activities  as  they pertain to lands  within
the jurisdiction of an Indian  Tribal  government.  In these ways
EPA ensures that Indian Tribes  have an opportunity to be involved
in emergency response planning.

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                                   OSWER Directive No. 9375.1-10
D.   Enforcement Actions

     Under CERCLA,  as amended,  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 waste releases occur  on lands within the jurisdiction
of an Indian Tribal government,  the governing body of the Indian
Tribe may pursue independent enforcement actions against respon-
sible parties.   However, EPA retains primary enforcement authority
under CERCLA/ as amended.

III. Cooperative Agreements  with Indian Tribal Governments

     Unlike States, Indian Tribes do not have to cost-share on
any response activities, nor do  they have to provide other CERCLA,
as amended, assurances with  regard to operation and maintenance,
off-site disposal and 20-year waste capacity.  Determination of
responsibility for  overseeing operation and maintenance will be
made on a case-by-case basis by  the Regional Administrator in
consultation with AA/OSWER and  the Tribe.  Options for the conduct
of OSM should be developed during the preparation of the Record
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                                   OSWER Directive No.  9375.1-10

.of Decision  (ROD) for the site and should be presented  to  Head-
quarters during the request for delegation of the selection  of
remedy  for the site.  Operation and maintenance may be  performed
by the  Tribal government if EPA and the Tribe find this  acceptable.
In the  event that real property must be required as part of  a
remedial action, please seek guidance from the Office of General
General Counsel on the assurance with regard to transfer of  title
for real property.

A.   Pre-Application Assistance

     Cooperative Agreements are awarded to the governing bodies
of Indian Ttibes in the same manner as they are awarded  to States.
Applications for Fund-financed response must 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-recognized  Tribes
                       /
in developing draft Cooperative Agreement application  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 submission requirements in detail together during  pre-appli-
cation  assistance to avoid confusion regarding general  vs. Superfund
specific requirements.
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                                   OSWER  Directive No. 9375.1-10
                                                      DRAFT
B.   Award Procedures

     EPA will establish  a  Letter  of  Credit  (LOG) and Tribal
governments must draw down on  the LOG  by  site and activity.  The
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 requirements
as States.  Additional  information  on  these requirements is
available in "State Superfund  Financial Management and Record-
keeping Guidance," Superfund  Accounting Branch, Financial
Management Division.

IV.  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 activities
                     ;
                     /
to support their involvement  in the  implementation of CERCLA, as
amended, on their lands.   Regions should  consult with Headquarters
concerning the applicability  of these  agreements to Indian tribal
roles in the implementation of the  Superfund program.

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 roles and
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                                   OSWER  Directive No. 9375.1-10

responsibilities of each agency during  interaction on CERCLA
implementation.   This agreement will  be called an EPA/State
Superfund Memorandum'of Agreement  (SMOA).   A detailed explanation
of this agreement can be found  in  the Draft Guidance on Preparation
Of SMOAS (OSWER, July 1988).

     The purpose of a SMOA with a  Tribal  government is to:
          Establish the nature  and extent of EPA, State, and
          Tribal interaction  during site-specific response

          Define the roles and  responsibilities of all parties
          to the SMOA and specify  the lead_  agency and supporting-"
          agencies

          Describe the interaction of all parties regarding review
          of key documents and  other  appropriate coordination points

          Describe time frames  for coordination to ensure that
                      /
                        /
          response is not delayed.

In these ways, the SMOA can provide clarification on many different
aspects of Tribal interaction with EPA  and  the State.

     A SMOA can be site-specific if there is only one site on or
adjacent to lands within a single  Tribal  government's jurisdiction
or generic if there are several sites of  concern.  For releases
that extend onto or migrate off Indian  reservations, a three-party

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                                  OSWER Directive No. 9375.1-10
SMOA may be developed  among  EPA, the governing body of the
Indian Tribe, and  the  State.

V.  Regional  Responsibilities  for  Insuring Indian Involvement

     In addition  to providing  assistance to governing bodies  of
Indian Tribes on  how to  identify a site for inclusion in CERCLIS,
and providing Cooperative  Agreement application assistance upon
request, EPA  Regions should  invite Federally-recognized Tribes to
participate in any training, workshops, conferences, or meetings
being conducted to provide technical assistance to or technology
transfer for  States regarding  Superfund response or Superfund  .
response agreement management  and  administration.  Regional
Superfund or  assistance  administration units should work with
Regional Indian Coordinators to distribute notices of and/or
invitations to such technology transfer efforts as well as
information on Superfund and Superfund assistance requirements to
                     /
                     - /
Tribal governments when  they are being disseminated to States.
This interaction  can be  accomplished in each Region in consultation
with the EPA  Regional  Indian Coordinator.
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