&EPA
United States
Environmental Protection
Agency
0«ice of
Soi«d Waste ana
Emergency Response
DIRECTIVE NUMBER: 9375.5-02
TITLE: Interim Final Guidance on Indian Involvement
in the Superfund Program
APPROVAL DATE: 10/18/89
EFFECTIVE DATE: 10/18/89
ORIGINATING OFFICE: OERR/HSCD
B^FINAL
D DRAFT
STATUS.
REFERENCE (other documents):
All documents in the 9375.5 series.
OSWER OSWER OSWER
ME DIRECTIVE DIRECTIVE Dl
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Unirea Slates environmental Protection.
Washington. DC 20460
OSWER Directive Initiation Request
1 • Oir«ciivt Numoer
9375.5-02
2. Orlrtnator Information
of Contact Person
Jan Baker
i Mail Caa«
OS-230
Office
HSCD
Telephone Coae
Interim Final Guidance on Indian Involvement in the Superfund Program
try of Oirectivt (inauae onef statement of purpose)
Provides guidance on involvement of federally recognized Indian Tribes which
are'treated substantially the same as States in the Superfund program.
!. Keywords
Superfund, CEROA, SARA
i«. Does This Directive Supersede Previous Oirecuve(s)? r~T7 | [
b. Does It Supplement Previous Oirectrve(s)?
No
Yes What directive (number, title)
Yea Whit directive (number. We)
Draft Level
~j A - Signed by AA/OAA
8 - Signed by Office Director
C - For Review & Comment
•
8. Document to be distributed to States by Headquarters?
••i^m
^
•
Yea
No
9. Signature of Lead Office Directives Coordinator
B.C. VanEpps
Henry L. Longest II, Director, OERR
Date
10/18/89
Date
10/18/89
rorm 1315-17 (Rev, s-87) rrevious editions are oosoiete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT I 8 1989
MEMORANDUM
OFFICE OF
SOLID WASTE AND EMERGENCV RESPONSE
OSWER Directive 9375.5-02
SUBJECT: Interim Final Guidance on Indian Involvement in the
Superfund Program — Directive 937^.5j|02
FROM: Henry L. Longest II, Director
Office of Emergency and Remedial
/
TO: 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
To provide guidance on the involvement of federally recognized
Indian Tribes, which are treated substantially the same as States
in the Superfund program.
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
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OSWER Directive No. 9375.5-02
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 0,
"Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions," (54 Federal Register 4132,
January 27, 1989). EPA's regulation at 40 CFR 35 Subpart 0 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 0 will
be considered in any revisions to this guidance, as final guidance
is developed.
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 them 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 remedial
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 Uranium Mill Tailings
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OSWER Directive No. 9375.5-02
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 involvement" 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 jurisdiction over a site listed in CERCLIS; or
Have jurisdiction over a site that is proposed or listed
on the NPL.
B. Regulatory Requirements
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 0. 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
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OSWER Directive No. 9375.5-02
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 0
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 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."
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
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.
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OSWER Directive No. 9375.5-02
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 jurisdic-
tional 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 exterior boundaries of their reservations, if
activities 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 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 Memorandum of Understanding (MOU) among EPA, the State,
and the 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. For the remedial action phase of a Superfund response, a
Superfund State Contract (SSC) may be required (see 40 CFR
35.6800).
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OSWER Directive No. 9375.5-02
3. EPA Regions
Although the Office of Management and Budget (OMB), in
Circular No. A-105 "Standard Federal Regions" designates a single
EPA Region 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 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 potential 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 identifying potential
hazardous waste sites, EPA has developed a handbook detailing
Superfund's site discovery program specifically, 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.
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OSWER Directive No. 9375.5-02
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.
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 under CERCLA:
Consultation on the information to be used in developing
the HRS scores for sites within Indian jurisdiction
before EPA performs the quality control review of the HRS
package for each site.
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OSWER Directive No. 9375.5-02
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 jurisdic-
tion to ensure that the intent of Section 121 of CERCLA
and the NCP (40 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. As specified in CERCLA and 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 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
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OSWER Directive No. 9375.5-02
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 to EPA that it will accept title to, acquire
interest in, or accept transfer of such interest in real property
that was acquired with CERCLA funds in order to conduct a response
action. 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. A determination as to whether
federally recognized Indian Tribes will be required to provide the
CERCLA 104(c)(9) assurance regarding 20-year waste capacity will be
provided in the final NCP.
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
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
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OSWER Directive No. 9375.5-02
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 and removal activities as they pertain to lands
within the.jurisdiction of 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 will 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, as may States,
pursuant to Section 121(f)(2) of CERCLA.
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
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OSWER Directive No. 9375.5-02
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
its 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).
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 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 recog-
nized 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 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 0).
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OSWER Directive No. 9375.5-02
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 0. 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 LOG enables the recipient to withdraw cash from
the U.S. Treasury concurrently with disbursements. Tribal
governments must draw down their reimbursements on the LOG 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 0.
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 activities 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
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.
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OSWER Directive No. 9375.5-02
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 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 coordination
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 responsible
for inviting federally recognized Tribes to participate 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 governments to
afford them equal treatment as States. Information and assistance
on these topics may be obtained from the EPA Indian Coordinator in
each Region.
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OSWER Directive No. 9375.5-02
VIII. CONTACTS
Should you have any questions regarding the Superfund
Administrative regulation you may contact Richard Johnson, Grants
Administration Division, at FTS: 382-5296. Program-specific
questions may be directed to Jan Baker Wine, Chief, State
Involvement Section, or John Banks of her staff at FTS: 382-2443
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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