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The draft guidance was also changed to eliminate the use of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REVISED DRAFT GUIDANCE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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DRAFT
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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DRAFT
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
8
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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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DRAFT
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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