Office of Water Tribal/State Meeting On Indian Water Programs Clean Water Act Amendments of 1987 * Safe Drinking Water Act Amendments of 1986 June 28-29,1989 Embassy Suites Hotel Denver, Colorado ------- EPA Office of Water State/Tribal Meeting On Indian Water Programs June 28 - 29,1989 ------- Agenda June 28 - 29,1989 DAYl 8:30 - 8:45 Welcoming Remarks James Scherer Regional Administrator 8:45 - 9:15 Opening Remarks Governor Verna Williamson AG Duayne Woodard R. Douglas Cooper Spec. Assistto Admin. Reilly Theme I: Status of OW Programs/Availability of Grants 9:15-11:00 SDWA Grants Don Olson, EPA Construction Grants Chris Powers, EPA 106 Grants Tim Icke, EPA Water Quality Standards Tim Icke, EPA . Wetlands Gene Reetz, EPA NPDES Gary Hudiburgh, EPA 11:00-11:15 Break Theme II: Building Tribal Capability to Implement Water Programs 11:15 -12:15 Safe Drinking Water Act Capability Regional Description Pat Crotty Tribal Perspective Dr. Kate Vandemoer 12:15 -1:30 Lunch 1:30 - 3:00 Clean Water Act (Section 106) Capability Regional Program Roger Frenette Tribal Perspective Rick Schilf State Perspective Dennis Fewless General Counsel Perspective Dave Coursen 3:00 - 3:15 Break 3:15 - until done Open Microphone: An opportunity for anyone in attendance to make their views known or ask questions on any aspect of EPA water programs. ------- DAY 2 8:30 - 8:45 Setting the Stage for Day Two EPA Speaker Theme III: Managing During Transition 8:45 -10:15 Regional Efforts Ken Kirkpatrick State Involvement Kathleen Sisneros Tribal Involvement Chester Fernando 10:15 -10:30 Break Theme IV: Creative Programming/Resource Planning 10:30 -12:00 What Tribes are Doing/Comprehensive Planning - Merv Tano - John Hollowed 12:00 • 1:00 Lunch Theme V: Building Partnerships 1:00 - 3:30 Developing Memorandum of Agreements EPA Perspective - Bob Hargrove Tribal Perspective - Harold Tarbell State Perspective -BobBatson Tribal Perspective - Billy Frank State Perspective - Bob Turner Effective Tribal/State Communications - Lois Witty 3:30 - 3:45 Break 3:45 - 5:00 Open Microphone: An opportunity for any one in attendance to make their views known or ask questions on any aspect of EPA water programs. ------- Guidelines for Speakers on Panel Topics The following guidelines suggest issues for speakers to address at each panel. Panel I: Speakers: Status of OW Programs/Availability of Grants The Panel will discuss the status of the various regulations/guidance covering the array of EPA Water Programs being extended to Indian Tribes. All EPA Headquarters Speakers Panel II & III: Building Tribal Capability to Implement Programs under the Safe Drinking Water and Clean Water Acts The Panel will address the following questions: Speakers: SDWA Panel: CWA(§106): L How is the application process working? n. What can EPA do to assist Tribes in developing applications? m. What are key elements that should be included in the application? IV. What should the Tribe have in place for implementation (e.g., staff, equipment, etc.) V. What are the experiences and lessons learned so far? PatCrotty Kate Vandemoer Roger Frenette Rick Schilf Dennis Fewless Dave Coursen (303) 564 -1408 (307) 332 - 3164 (303) 293 -1696 (701) 627 - 3627 (701) 224 - 2354 (202)382-5313 Panel IV: Managing during Transition to Tribal Environmental Programs Transition entails going from the situation that occurs today, where no Tribes have been extended EPA programs as specified in the SDWA and CWA Indian regulations to a situation of coverage of Tribal lands by Tribal programs. The panel will look at options that are available for Tribes to take on EPA programs. A Regional, State and Tribal perspective will be offered focusing primarily on water quality standards and how the parties might work cooperatively. Speakers: Ken Kirkpatrick Kathleen Sisneros Chester Fernando (214) 255 - 7100 (505) 827 - 2792 (505)243-7616 ------- Panel V: Alternative Funding Options « The panel will focus on options Tribes may consider to enhance EPA grants. A Tribal perspective will be offered on innovative ideas for raising new monies. In addition, a discussion on how comprehensive environmental planning might help resources go further and whether the Tribes can cause EPA monies to be used cooperatively. Finally the panel will discuss what other sources of Federal funding may be available to enhance EPA grants. Speakers: Merv Tano (303) 861 - 0418 John Hollowed (206) 438 -1180 Panel VI: Building Partnerships The panel will look at the Memorandum of Agreement that was recently signed between the St. Regis Mohawk Tribe and EPA's Region n to develop a cross-media environmental program. The panel will also include a New York State representative from the Governor's office to provide insight on ways that States can contribute to such Tribal efforts. In addition, a Washington State representative and a member of the Northwest Indian Fisheries Commission will discuess successful negotiations on various environmental issues between the State and Tribes. Finally, the panel will look at ways through which Tribes and States have successfully collaborated on water resource issues and how this can be applied to the water quality area. Speakers: Bob Hargrove (212) 264 -1892 Harold Tarbell (518)358-2272 BobBatson (518)473-1026 Billy Frank (206)438-1180 Bob Turner (206) 753 - 6627 Lois Witty (303)866-3611 ------- OFFICE OF WATER TRIBAL/STATE MEETING DENVER, COLORADO JUNE 28-29,1989 BACKGROUND BOOK Table of Contents Meeting Agenda i Table of Contents vii I. OVERVIEW Section I Introduction and Executive Summary 1-1 Statutes Governing Indian Tribes in Federal Water Programs 1-4 EPA Indian Tribes Policy 1-7 Proposed Preamble to EPA Water Program Regulations 1-12 II. OFFICE OF WATER (OW) PROGRAMS AND INDIAN TRIBES PROVISIONS Section II Programs Mandated by the Safe Drinking Water Act Amendments of 1986 1. Public Water System (PWS) Program i: ....1 • Executive Summary • Supporting Documents 2. Underground Injection Control (UIC) Program 2 • Executive Summary • Supporting Documents 3. Wellhead Protection Program 3 • Executive Summary • Supporting Documents Programs Mandated by the Water Quality Act of 1987 (the Clean Water Act Amendments) 4. Construction Grants Program: Program Management Delegations and Indian Tribes Grant Set-aside 4 • Executive Summary • Supporting Documents ------- Programs Mandated by the Water Quality Act of 1987 (the Clean Water Act Amendments) Continued 5. Water Quality Standards Program 5 • Executive Summary • Supporting Documents 6. National Pollution Discharge Elimination System (NPDES) Permit and Sludge Management Programs 6 • Executive Summary • Supporting Documents 7. Water Quality Planning and Management Grant Program (§106) 7 • Executive Summary • Supporting Documents 8. Wetlands Protection Program 8 • Executive Summary • Supporting Documents III. APPENDICES Section HI EPA Regional Indian Coordinators. m-1 EPA Office of Water Organization Charts: Headquarters and Regions ffl-2 ------- ------- OFFICE OF WATER/INDIAN TRIBAL LANDS MEETING, DENVER COLORADO JUNE 28-29,1989 Amendments to the nation's two water acts — The Safe Drinking Water Act in 1986 and the Clean Water Act in 1987 - require the U.S. Environmental Protection Agency to facilitate the direct award of Federal assistance to Indian Tribes. EPA PROGRAMS ENCOURAGE LOCAL DECISIONMAKING BY INDIAN TRIBES These amendments are consistent with President Reagan's January 24, 1983 Federal Indian Policy Statement providing for treatment of Tribal governments on a government to government basis and supporting the principle of self-determination and local decision making by Indian Tribes. EPA responded to the President's statement by developing a discussion paper entitled "Administration of Environmental Programs on Indian Lands" in July, 1983. The Agency later adopted a formal EPA Indian Policy Statement and Implementation Guidance in November, 1984. The EPA policy is "to give special consideration to Tribal interests in making Agency policy and to ensure the close involvement of Tribal governments in making decisions and managing environmental programs affecting reservation lands." In practice, EPA's policy is to work directly with Tribal governments as independent authorities for reservation affairs and not as political subdivisions of States. AGENCY REGULATIONS WILL CHANNEL FEDERAL ASSISTANCE DIRECTLY TO INDIAN TRIBES FOR WATER PROGRAMS EPA has responded to this Executive and Congressional mandate by developing regulations in each of its eight major water programs to ensure that Indian Tribes receive financial and technical assistance once they meet eligibility requirements similar to those States must satisfy for program delegation or aid. The following programs are mandated by the Safe Drinking Water Act, amended by Congress in 1986: • The Public Water System (PWS) program to establish and maintain drinking water standards [Section 1413]; • The Underground Injection Control (UIC) program to protect groundwater by regulating the injection of fluids into the ground [Sections 1422 and 1425]; and ------- • The Wellhead Protection program (WHP) to protect aquifers from contamination through controls of the area around public water supply wells [Section 1428] and the Sole Source Aquifer Demonstration (SSAD) program to assist in the development of a program to protect critical aquifer protection areas within sole source aquifers. The remaining programs come under the jurisdiction of the Clean Water Act (amended by the Water Quality Act of 1987). They are: • The Construction Grants program to manage and build wastewater treatment facilities. This program has two elements: the delegation of program management to Indian Tribes and the availability of grants to design and build wastewater treatment facilities [Title n]; • The Water Quality Standards program to develop and carry out water quality standards for surface waters and the Certification program to assure that Federal permits.do not violate State water quality standards [Sections 303 and 401]; • The Permit program to regulate the discharge of wastes into surface waters, known as the National Pollution Discharge Elimination System (NPDES) program and the Sludge Management program to provide guidelines on the use and disposal of sewage sludge [Sections 402 and 405]; • The Water Quality Planning and Management Grant program that provides funds to perform a wide variety of water quality planning and management activities, including: assessing critical water quality problems, and developing management, programs for the control of those problems. These programs might include establishing water quality standards, issuing point source permits, and developing best management practices for nonpoint sources of pollution. [Sections 106, 205(j), 314, and 319]; and • The Wetlands Protection program to oversee dredge and fill activities affecting wetlands [Section 404]. INDTAN TRIBES MUST MEET FOUR CRITERIA TO OPERATE PROGRAMS AND QUALIFY FOR DIRECT FEDERAL ASSISTANCE Language in both the Safe Drinking Water Act and the Water Quality Act amendments identify four criteria that Indian Tribes must meet in order to operate programs and qualify for direct Federal assistance. An Indian Tribe qualifies if it is: ------- Recognized by the Department of the Interior and exercise governmental authority over Indian Lands; Governed by a body carrying out substantial governmental duties and powers; Organized with functions to be carried out that pertain to the management and protection of water resources within its borders or overseen by its authority; and Capable of carrying out the management and protection of water resources in a manner consistent with the terms and purposes of the Safe Drinking Water and Clean Water Acts and all of their regulations. THIS BACKGROUND BOOK SUMMARIZES PROGRAM REQUIREMENTS AND ASSISTANCE AVAILABLE TO INDIAN TRIBES This Background Book summarizes EPA's initiatives to develop regulations and guidance that authorize Indian Tribes to accept program responsibility and financial and technical assistance for the eight drinking water and water quality programs. The Book includes: • This introduction; • A section that includes executive summaries and supporting documents for each of the programs with evolving or completely developed Indian Tribes regulations and policies; and • An appendix that includes explanatory and supplemental materials about the Environmental Protection Agency, the Office of Water in Headquarters and the Regions, and key program contacts. Not all the programs have completely developed regulations. This Background Book includes the latest and most complete materials available from each program that explain the workings of the Agency's water programs in terms of the Indian Tribe provisions. ------- STATUES GOVERNING INDIAN TRIBES UNDER THE SAFE DRINKING WATER ACT AMEMDMENTS OF 1986 AND THE WATER QUALITY ACT OF 1987 SAFE DRINKING WATER ACT AMENDEMNTS OF 1986 INDIAN TRIBES Sec. 1451. (a) Subject to the provisions of subsection (b), the Administrator- (1) is authorized to treat Indian Tribes as States under this title, (2) may delegate to such Tribes primary enforcement responsibility for public water systems and for underground injection control, and (3) may provide such tribes grant and contract assistance to carry out functions provided by this title. (b)(1) The Administrator shall, within 18 months after the enactment of the Safe Drinking Water Act Amendments of 1986, promulgate final regulations specifying those provisions of this title for which it is appropriate to treat Indian Tribes as States. Such treatment shall be authorized only if: (A) the Indian Tribe is recognized by the Secretary of the Interior and has a governing body carrying out substantial governmental duties and powers; . (B) The functions to be exercised by the Indian Tribe are with the area of the Tribal Government's jurisdiction; and in the administrator's judgement, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this title and of all applicable regulations. (2) For any provision of this title where treatment of Indian Tribes as identical to States is inappropriate, administratively infeasible or otherwise inconsistent with the purposes of this title, the Administrator may include in the regulations promulgated under this section, other means for administering such provisions in a manner that will achieve the purpose of the provision. Nothing in this section shall be construed to allow Indian Tribes to assume or maintain primary enforcement responsibility for public water systems or for underground injection control in a manner less protective of the health of persons than such responsibility may assumed or maintained by a State. An Indian tribe shall not be required to exercise criminal enforcement jurisdiction for purposes of complying with the preceding sentence. ------- WATER QUALITY ACT OF 1987 (CLEAN WATER ACT AMENDEMT) SEC. 518 TRIBES. (a) POLICY.-Nothing in this section shall be construed to affect the application of section 101(g) of this Act, and all of the provisions of this section shall be carried out in accordance with the provisions of such section 101(g). Indian tribes shall be treated as States for purposes of such section 101(g). (b) ASSESSMENT OF SEWAGE TREATMENT NEEDS; REPORT.-The Administrator, in cooperation with the Director of the Indian Health Service, shall assess the need for sewage treatment works to serve Indian tribes, the degree to which such needs will be met through funds allotted to States under section 205 of this Act and priority lists under section 216 of this Act, and any obstacles which prevent such needs form being met. Not.later than one year after the date of the enactment of this section, the Administrator shall submit a report to Congress on the assessment under this subsection, along with recommendations specifying (1) how the Administrator intends to provide assistance to Indian tribes to develop waste treatment management plans and to construct treatment works under this Act, and methods by which the participation in the administration of programs under this Act by Indian tribes can be maximized. (c) RESERVATION OF FUNDS.-The Administrator shall reserve each fiscal year beginning after September 30, 1986, before allotments to the States under section 205(e), one-half of one percent of the sums appropriated under section 207. Sums reserved under this subsection shall be available only for grants for the development of waste treatment management plans and for the construction of sewage treatment works to serve Indian tribes. (d) COOPERATIVE AGREEMENTS.-ln order to ensure the consistent implementation of the-requirements of this Act, an Indian tribe and the State or States in which the lands of such tribe are iocaied may enter into a cooperative agreement, subject to the review and approval of the of the Administrator, to jointly plan and administrator, to jointly plan and administer the requirements of this Act. (e) TREATMENT AS STATES.-The Administrator is authorized to treat an Indian tribe as a State for purposes of title II and sections 104, 106, 303, 305, 308, 309, 314, 319, 401, 402, and 404, and 404 of this ------- Act to the degree necessary to carry out the objectives of this section, but only if- (1) the Indian tribe has a governing body carrying out substantial governmental duties and powers; (2) the functions to be exercised by the Indian tribe pertain to the management and protection of water resources which are held by an Indian tribe, held by the united States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and (3) the Indian tribe is reasonably expected to be capable, in the Administrator's judgement, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this Act and of all applicable regulations. Such treatment as a State may include the direct provision of funds reserved under subsection (c) to the governing bodies of Indian tribes, and the determination of priorities by Indian tribes, where not determined by the Administrator in cooperation with the Director of the Indian Health Service. The Administrator, in cooperation with the Director of the Indian Health Service, is authorized to make grants under title II of this Act in an amount not to exceed 100 percent of the cost of •a project. Not later than 18 months after the date of the enactment of this section, the Administrator shall, in consultation with Indian tribes, promulgate final regulations which specify how Indian tribes shall be treated as States for purposes of this Act. The Administrator shall, in promulgating such regulations, consult affected States sharing common water bodies and provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by States and Indian tribes located on common bodies of water. Such mechanism shall provide for explicit consideration of relevant factors including, but not limited to, the effects of differing water quality permit requirements, on upstream and downstream discharges, economic impacts and present and historical uses and quality of the waters subject such standards. Such mechanism should provide for the avoidance of such unreasonable consequences in a manner consistent with the objective of this Act. ------- (f) GRANTS FOR NONPOINT SOURCE PROGRAMS.-The Administrator shall make grants to an Indian tribe under section 319 of this Act as though such tribe was a State. Not more than one-third of one percent of the amount appropriated for any fiscal year under section 319 may be used to make grants under this subsection. In addition to the requirements of section 319, an Indian tribe shall be required to meet the requirements of paragraphs (1), (2), and (3) of subsection (d) of this section in order to receive such a grant. (g) ALASKA NATIVE ORGANIZATIONS.-No provision of this Act shall be construed to _ (1) grant, enlarge, or diminish, or in any way affect the scope of the governmental authority, if any, of any Alaska Native organization, including any federally-recognized tribe, traditional Alaska Native council, or Native council organized pursuant to the Act of June 18, 1934 (48 Stat. 987), over lands or persons in Alaska; (2) create or validate any assertion by such organization or any form of governmental authority over lands or persons in Alaska; or (3) in any way affect any assertion that Indian country, as defined in section 1151 of title 18, United States Code, exists or does not exist in Alaska. (h) DEFINITIONS.- For purposes of this section, the term- (1) "Federal Indian reservation" means all land within the limits of any Indian* reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;and (2) "Indian tribe" means any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. ------- V UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHING*, ON. D.C. 20460 OFFICE OF INDIAN POLICY EXTERNAL AFFA.RS U.S. ENVIRONMENTAL PROTECTION AGENCY Attached are two documents which were adopted by the Environmental Protection Agency (EPA) on November 8, 1984, relating to Indian Tribes and Federal programs for protection of reservation environments: 1) EPA Policy for the Administration of Environmental Programs on Indian Reservations. 2) Indian Policy Implementation Guidance. These documents lay the groundwork for EPA management of the Agency's regulatory programs on reservation lands. The cornerstones of the Policy and Guidance are the principles of Indian "self-government" and " government-to-government11 relations between the Federal Government and Tribal Governments. Through Implementation of the Policy, the Agency hopes to realize the long-range objective of Including Tribal Governments as partners 1n decision-making and program management on reservation lands,, much as we do with State Governments off-reservation. In the beginning, Implementation of the Policy will be slowly paced, as the Agency will need to seek legislative authority 1n many areas and go through a lengthy budget process before we can carry out the principles of the Policy and directives of the Guidance In a comprehensive manner. In the first year, however, we will begin to seek statutory changes/modify regulations, and work on selected pilot programs. These pilot programs will Investigate problems associated with Tribal regulation of water and air quality and the handling and disposal .of hazardous materials on reservation lands. The experience will help both EPA and the Tribes develop models for dealing with these problems 1n the special legal and political context of Indian reservations. Environmental programming that will Involve Tribal Governments 1n the Federal regulatory process on a significant scale 1s a new endeavor for EPA and Tribes alike. To be successful, we will need cooperation and assistance from all sectors and would welcome your on-going support. If you have questions or need further Information, please contact Leigh Price, National EPA Indian Coordinator, at (202) 382-5051. .• Attachment ------- 11/8/84 EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN RESERVATIONS INTRODUCTION The President published a Federal Indian Policy on January 24, 1983, supporting the primary role of Tribal Governments 1n natters affecting American Indian reservations. That policy stressed two related themes: (1) that the Federal Government will pursue the principle of Indian "self-government" and (2) that it will work directly with Tribal Governments on a "government-to-government" basis. The Environmental Protection Agency (EPA) has previously Issued general statements of policy which recognize the importance of Tribal Governments in regulatory activities that Impact reservation environments. It is the purpose of this statement to consolidate and expand on existing EPA Indian Policy statements in a manner consistent with the overall Federal position in support of Tribal "self-government" and "government-to-govemment" rela- tions between Federal and Tribal Governments. This statement sets forth the principles that will guide the Agency in dealing with Tribal Governments and in responding to the problems of environmental management on American Indian reservations 1n order to protect human health and the environment. The Policy is intended to provide guidance for EPA program managers In the conduct of the Agency's congressionally mandated responsibilities. As such, it applies to EPA only and does not articulate policy for other Agencies in the conduct of their respective responsibilities. It is Important to emphasize that,the Implementation of regulatory programs which will realize these principles on Indian Reservations cannot be accomplished Immediately. Effective Implementation will take careful and conscientious work by EPA, the Tribes and many others. In many cases. it will require changes In applicable statutory authorities and regulations. It will be necessary to proceed 1n a carefully phased way, to learn from successes and failures, and to gain experience. Nonetheless, by beginning work on the priority problems that exist now and continuing In the direction established under these principles, over tine we can significantly enhance environmental quality on reservation lands. POLICY In carrying out our responsibilities on Indian-- reservations, the fundamental objective of the Environmental Protection Agency is to protect human health and the environment. The keynote of this effort will be to give special consideration to Tribal Interests in making Agency policy, and to Insure the close Involvement of Tribal Governments in making decisions and managing environmental programs affecting reservation "Urvds. To meet this objective, the Agency «ill pursue the following principles: ------- -2- 1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-GOVERNMENT11 RELATIONSHIP), RATHER THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS. EPA recognizes Tribal Governments as sovereign entitles with primary authority and responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal Governments as the Independent authority for reservation affairs, and not as political subdivisions of States or other governmental units. 2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING PROGRAMS FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS. In keeping with the principle of Indian self-government, the Agency will view Tribal Governments as the appropriate non-Federal parties for making decisions and carrying out program responsibilities affecting Indian reservations, their environments, and the health and welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally involved the Interests and/or participation of State Govern- ments, EPA will look directly to Tribal Governments to play this lead role for matters affecting reservation environments. 3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST TRIBES IN. ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES FOR RESERVATION LANDS. The Agency will assist Interested Tribal Governments 1n developing programs and In preparing to assume regulatory and program management responsibilities for reservation lands. Within the constraints of EPA's authority and resources, this aid will Include providing grants and other assistance to Tribes similar to that we provide State Governments. The Agency will encourage Tribes to assume delegable responsibilities, (I.e. responsibilities which the Agency has traditionally delegated to State Governments for non-reservation lands) under terms similar to those governing delegations to States. Until Tribal Governments are willing and able to assume full responsi- bility for delegable programs, the Agency will retain responsibility for managing programs for reservations (unless the State has an express grant of jurisdiction from Congress sufficient to support delegation to the State Government). Where EPA retains such responsibility, the Agency will encourage the Tribe to participate 1n policy-making and to assume appropriate lesser or partial roles 1n the management of reservation programs. ------- -3- 4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL GOVERNMENTS ON RESERVATION PROGRAMS. A number of serious constraints and uncertainties 1n the language of our statutes and regulations have limited our ability to work directly and effectively with Tribal Governments on reservation problems. As Impediments In our procedures, regulations or statutes are Identified which limit our ability to work effectively with Tribes consistent with this Policy, we will seek to remove those Impediments. 5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS. EPA recognizes that a trust responsibility derives from the his- torical relationship between the Federal Government and Indian Tribes as expressed in certain treaties and Federal Indian Law. In keeping with that trust responsibility, the Agency will endeavor to protect the environmental Interests of Indian Tribes when carrying out Its responsibilities that may affect the reservations. 6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE AND LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN. Sound environmental planning and management require the cooperation and mutual consideration of. neighboring ' governments, whether those governments be neighboring States, Tribes, or local units of government. Accordingly, EPA will encourage early communication and cooperation among Tribes, States and local governments. This Is not Intended to lend Federal support to any one party to the jeopardy of the Interests of the other. Rather, 1t recognizes that 1n the field of environmental regulation, problems are often shared and the principle of comity between equals and neighbors often serves the best Interests of both. 7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL PROGRAM RESPONSIBILITIES FOR RESERVATIONS. EPA will seek and promote cooperation between Federal agencies to protect human health and the environment on reservations. We will work with other agencies to clearly Identify and delineate the roles, responsibilities end relationships of cur respective .organisations srS to assist Tribes in developing and managing environmental programs for reservation lands. ------- -4- 8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS. In those cases where facilities owned or Managed-by Tribal Governments are not 1n compliance with Federal environmental statutes, EPA will work cooperatively with Tribal leadership to develop weans to achieve compliance, providing technical support and consultation as necessary to enable Tribal facilities to comply. Because of the distinct status of Indian Tribes and the complex legal Issues Involved, direct EPA action through the judicial or administrative process will be considered where the Agency determines, In Us judgment, that: (1) a significant threat to human health or the environment exists, (2) such action would reasonably be expected to achieve effective results 1n a timely manner, and (3) the Federal Government cannot utilize other alternatives to correct the problem 1n a timely fashion. In those cases where reservation facilities are clearly owned or managed by private parties and there 1s no substantial Tribal Interest or control Involved, the Agency will endeavor to act 1n cooperation with the affected Tribal Government, but will otherwise respond to noncompHance by private parties on Indian reservations as the Agency would to noncompliance by the private sector elsewhere in the country. Where the Tribe has a substantial proprietary interest 1n, or control over, the privately owned or managed facility, EPA will respond as described 1n the first paragraph above. 9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING AND MANAGEMENT ACTIVITIES; INCLUDING ITS BUDGET, OPERATING GUIDANCE. LEGISLA- TIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND REGULATION DEVELOPMENT PROCESSES.. It 1s a central purpose of this effort to ensure that the principles of this Policy are effectively Institutionalized by Incorporating them Into the Agency's ongoing and long-term planning and management processes. Agency managers will Include specific programmatic actions designed to resolve prob- lems on Indian reservations 1n the Agency's existing fiscal year and long-term planning and management processes. William D. Ruckelshaus ------- GENERAL PROPOSED RULE ON INDIAN TRIBES1 RESPONSIBILITIES AND THE CLEAN WATER ACT The proposed preamble was prepared by the Environmental Protection Agency (EPA) to serve as an overview for programs under the Clean Water Act (CWA) pertaining to the Indian Lands. ------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts [FRL ] AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed/Interim Final Rule. SUMMARY: The Hater Quality Act of 1987 (Pub. L. 100-4) amends the Clean Water Act (CWA) by adding Section 518 which requires EPA to promulgate regulations, specifying how Tribes will be treated as States for the following provisions of this Act: Title II (construction grants), § 104 (research, investigation, and training) , § 106 (grants for pollution control), § 303 (water quality standards), § 305 (water quality inventories), § 308 (inspections, monitoring, and entry), § 309 (federal enforcement), § 314 (Clean Lakes), § 319 (non-point source program), § 401 (certification), § 402 (National Pollution Discharge Elimination System), and § 404 (permits for dredge and fill material) . This proposed rule would establish requirements for: a) determining eligibility of Indian Tribes to be treated as States for purposes of Sections of the CWA and if found eligible, b) allow for. EPA is concurrently developing regulations for the other provisions which Section 518 of the CWA extended to Tribes. EFFECTIVE DATE: The amended requirements contained in this rule found at 40 CFR Parts . will take effect [insert date 30 days after publication of the final rule in the Federal ------- - 2 - Register.] In accordance with 40 CFR Part 23.2, this regulation shall be considered final Agency action for the purpose of judicial review at 1:00 p.m., eastern time on [insert date 14 days after publication of the final rule in the Federal Register.] ADDRESSES: .. FOR FURTHER INFORMATION: Contact the Office of Water contact , Environmental Protection Agency, 401 M Street S.W., Washington, D.C., 20460, telephone SUPPLEMENTARY INFORMATION: TABLE OF CONTENTS I. Background A. Authority B. Development of Today's Rule C. EPA Indian Policy II. Summary and Explanation of Today's Action A. Treatment of Indian Tribes as States 1. Federal Recognition 2. "Substantial Governmental Duties and Powers" 3. Jurisdiction 4. Tribal Capability 5. Process for Evaluating Applications III. Other Issues 1. Alaska Native Villages and Oklahoma ------- - 3 - I. BACKGROUND A. Statutory Authority The over-all objective of the CWA as amended is to restore and maintain the chemical, physical and biological integrity of the Nation's water. The two national goals the Act established in 1972 are: 1) eliminating the discharge of pollutants into navigable waters; and 2) achieving an interim water quality level that would protect fish, shellfish, and wildlife while providing for recreation in and on the water wherever attainable. Since 1972, Section 101(b) of the CWA makes it national policy to recognize and preserve the States' primary responsibility to meet these goals. Over the past 17 years, the Agency has focused on developing standard operating relationships with the States and localities. These relationships generally have led to the successful operation of EPA and State Programs on most lands in the United States. Congress, through amendments to both the Clean Water Act (CWA) in 1987 and the Safe Drinking Water Act (SDWA) in 1986, has authorized the EPA to treat Indian Tribes as States under various provisions of these Acts. Amendments to both statutes required the Agency to promulgate regulations that would establish exactly how Tribes would be treated as States. As discussed earlier? the 1987 Amendments to the CWA aduecl a new Section 518 entitled "Indian Tribes." Section 518 authorizes EPA to treat Indian Tribes as States for the purposes of certain provisions of the Act, and provide grant and contract assistance ------- - 4 - (for certain of these programs) to Indian Tribes where appropriate. Section 518 requires EPA to promulgate regulations specifying how the Agency will Treat an Indian Tribe as a State under the following provisions: Title II (construction grants), § 104 (research, investigation and training), § 106 (grants for pollution control), § 303 (water quality standards and implementation plans), § 305 (water quality inventory), § 308 (inspections, monitoring, and entry), § 309 (federal enforcement), § 314 (Clean Lakes), § 319 (non-point source), § 401 (certification), § 402 (National Pollution Discharge Elimination System), and § 404 (permits for dredge and fill material). Section 518(e) of the CWA establishes certain criteria an Indian Tribe must meet before treatment as a State is authorized: (1) "the Indian Tribe has a governing body carrying out substantial governmental duties and powers;" (2) "the functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the United States in trust for Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation or otherwise within the boundaries of a reservation;" and (3) "the Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and of all applicable regulations." ------- - 5 - In addition to the eligibility requirements specified in Section 518(e), Section 518(h)(2) defines Indian Tribes as follows: "Indian Tribe means any Indian Tribe, band, group, or community recognized by the Secretary of Interior and exercising governmental authority over a Federal Indian reservation." Consequently, Federal recognition and governmental authority over reservation lands are necessary criteria by definition. B. Development of This Rule Based on the statutory amendments to the CWA, there are currently regulations related to five separate CWA programs at different stages of development in the Agency: 1) Construction Grants program 2) Water Quality Standards program (including the required conflict resolution mechanism), 3) Dredge and Fill permit program on Indians Lands, 4) National Pollution Discharge Elimination System permit program on Indian Lands, and 5) Clean Water Act grants programs for Indian Lands. To promote consistency among the various regulations being developed, an intra-Agency oversight committee was established. Efforts are being made by this committee to develop parallel requirements where appropriate in order to reduce the burden on Tribes that choose to apply for any of these programs. EPA has already issued regulations 1) specifying how Indian Tribes will be treated as states for purposes, ol tlia Public H»ter System and Underground Injection Control (UIC) programs under the SDWA (53 FR 37396) (referred to below as the "SDWA Indian Primacy Rule"), and 2) promulgating federal UIC programs on all Indian ------- lands where an applicable program had not been in place (53 FR 43084). The SDWA Indian Primacy Rule is being used as a model for developing parallel regulatory approaches in the forthcoming CWA Indian regulations.1 Section 518(e) of the CWA requires consultation with Indian Tribes during regulation development. The Act also requires the Administrator to consult affected States sharing common water bodies and provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by States and Tribes located on common bodies of water. In keeping with this requirement, the Agency decided a multifaceted consultation approach would be most appropriate. Tribal and State representatives were appointed to serve on various CWA Indian workgroups. For the most part, workgroup meetings have been noticed in the Federal Register inviting the public to observe and offer comment. Other efforts to consult with Tribes and States have included national meetings across the country to discuss the regulatory approaches proposed in the various CWA regulations, attendance of EPA officials at both Tribal and interested State meetings to present regulatory approaches being considered, and distribution of the draft *. One other rule, which would treat Tribes as States for the purposes of the SDWA Sole Source Aquifer Demonstration and Wellhead Protection programs, has also been proposed (52 FR 46712). ------- - 7 - proposed language for broad review at an early stage of regulation development. C. EPA Indian Policy This rule is consistent with Federal Policy statements regarding Indian Tribes. On January 24, 1983, the Federal government established an Indian Policy Statement providing for treatment of Tribal governments on a government-to-government basis and supporting the principle of self-determination and local decision-making by Indian Tribes. The EPA's policy is "to give special consideration to Tribal interests in making Agency policy and to ensure the close involvement of Indian Tribes in making decisions and managing the environmental programs affecting reservation lands." In practice, EPA's policy is to work directly with Indian Tribes as independent authorities for reservation affairs, recognizing that they are not political subdivisions of States. II. SUMMARY AND EXPLANATION OF TODAY'S ACTION Today's proposed rule would authorize an Indian Tribe to be treated as a State for (specific program) if the Indian Tribe meets the eligibility criteria specified in Section 518. The criteria for treating Indian Tribes as States under the CWA and the SDWA are very similar. The Agency intends to establish the least burdensome process possible for Tribes to demonstrate State eligibility. When all regulations under the SDWA and CWA specifying how Tribes shall be treated as States are ------- - 8 - final, the Agency will develop procedures to implement a single application procedure for the SDWA and CWA programs. Most qualification criteria are of a general nature and documentation as to how the Tribe how the Tribe meets them need only be provided when a Tribe first applies for "treatment as a State" under the SDWA or CWA. For example, the "Federal recognition" and "governmental duties and powers" criteria would ordinarily need to be demonstrated during the first application a Tribe submitted under either of the Acts. The Agency believes that even with a streamlined application procedure, some qualifications will still need to be demonstrated separately for each program, particularly those regarding capability. For example, a Tribe may possess the requisite capability to establish water quality standards but not to assume the Dredge and Fill Material permit program. Yet the Agency does not wish to put Tribes through the burden of filing complete applications for treatment as a State for each separate program. Consequently, the Agency will allow an Indian Tribes which has previously been designated as a State under criteria of either SDWA or CWA to provide only that information which is unique to the specific additional program(s) (which may include demonstrating adequate regulatory authority to administer the specific program) for which the Tribe is applying. As is the case for States, an Indian Tribe must have its own legal authorities to administer a program under the CWA; EPA cannot delegate its own authority. However, the Agency ------- - 9 - considered whether the lack of criminal enforcement authority over non-Indians on Indian lands would preclude Tribes from applying for the National Pollution Discharge Elimination System program (§ 402) and the Dredge and Fill Material Permit program (§ 404) that currently require such authority for State application. Section 1451 of SDWA specifically states that Indian Tribes are not required to exercise criminal enforcement jurisdiction for primary enforcement responsibility. The CWA as amended, however, does not include similar language indicating whether it would be appropriate to treat a Tribe not having comprehensive criminal enforcement authority as a State where such authority is currently required for State program assumption. The Agency realizes that a comprehensive criminal enforcement requirement could raise substantial impediments to Tribal assumption of those CWA programs that require such authorities of States. Federal law bars Indian Tribes from criminally trying or punishing non-Indians in the absence of a treaty or other agreement to the contrary. Oliphant v. Suouamish Indian Tribe. 435 U.S. 191 (1978). In addition, the i Federal Indian Civil Rights Act prohibits any Indian court or tribunal from imposing any criminal fine greater than $5,000, (25 U.S.C. 1302(7)) . ' The Agency believes that even though Congress did not explicitly waive the requirement under CWA, as under SDWA, that Conaress nonetheless intended Tribes to be able to obtain ------- - 10 - delegation without demonstrating comprehensive criminal enforcement authority. If EPA were to infer that Congress, by failing to insert language similar to that contained in Section 1451 of SOWA, intended not to waive the criminal enforcement requirement, EPA's reading would make part of Section 518 of CWA a nullity. This nullity would exist since absent further legislative action, no Tribe would be able to obtain primary enforcement authority under Sections 402 or 404 of CWA, nor receive a grant under Section 106. This reading would contradict the apparent intent of Section 518 to allow Tribes to assume all specified CWA programs where they meet the 518(e) criteria and further would violate two traditional rules of statutory construction: 1) legislation should not be interpreted as being meaningless, if at all possible; and 2) ambiguous statutes should be interpreted to the benefit of Tribes. Thus, EPA has decided not to require comprehensive criminal enforcement authority as a condition to assuming these programs. Tribes will, instead, be required to provide for the referral of criminal enforcement matters to EPA in an appropriate and timely manner in instances where the Tribe lack the authority. Such procedures would be established in a formal Memorandum of Agreement (MOA) with the Regional Administrator. Thus, the lack of comprehensive Tribal criminal enforcement authority should not prevent a Tribe from having an approvable CWA program. Because CWA program funds are limited, many Indian Tribes may decide it is not cost-effective or otherwise beneficial to ------- - 11 - apply for various CWA program authorities. The Agency encourages Tribes to carefully consider which of the available programs would be beneficial to assume and to target the Tribal efforts and resources towards those specific programs. The Agency notes that Tribal assumption of the CWA programs discussed in today's program is voluntary on the part of the Tribes. In order to facilitate consistent implementation of the requirements of CWA, an Indian Tribe and the State or States adjacent to the lands of such Tribe may enter into a cooperative agreement (or a series of agreements), subject to the review and approval of the Administrator, to jointly plan and administer the requirements of this Act (see Section 518(d) of the CWA.) The Agency highly encourages such cooperative agreements, because of the benefits to all concerned such as information and * . resource sharing. The Agency does not have any specific criteria that a cooperative agreement must meet; so long as all parties involved approve it and it complies with the intent and administrative requirements of CWA. In situations where EPA is a signatory to a cooperative agreement, all Federal requirements that govern such agreements must also be met. Draft cooperative agreements should be submitted to the Regional Administrator for review and approval. If necessary, the Agency will develop guidance to assist the Tribes and States in developing cooperative agreements and the Regions in evaluating such cooperative agreements. A. Treatment of Indian Tribes as States ------- - 12 - This rule would create procedures for Indian Tribes to apply to EPA for treatment as a State in order to be eligible to apply for This rule creates procedures set forth in a new Subpart titled: "Treatment of Indian Tribes as States." Subpart establishes criteria Indian Tribes must meet for treatment as a State, lists the information the Tribe must provide in its application to EPA, and provides a procedure for EPA to formally review applications for "treatment as a State." The requirements a Tribe must meet under all the CWA Indian regulations are as identical as possible leaving room for program specific requirements which are explained further in the capability requirements section of this notice. As mentioned previously, Section 518 of the CWA specifies that a Tribe is eligible for treatment as a State if it meets the following eligibility criteria: (1) is Federally recognized; (2) carries out substantial governmental duties and powers over a Federal Indian reservation; (3) has appropriate regulatory authority over surface waters on the reservation; and (4) is reasonably expected to be capable of administering 'the relevant CWA program. The Agency believes the language in Section 518 requires that each of these eligibility criteria must be satisfied through a separate demonstr?tion by a Tribe following the procedures ------- — 13 - these regulations will set forth. These procedures are intended to ensure Tribes who are treated as States, meet the requirements of the CWA not to act as a barrier to program assumption. Rather the Agency hopes that as many Tribes as possible will assume responsibility for the CWA programs where the Tribe and the Agency deem it appropriate. 1. Federal Recognition With respect to Federal recognition as an Indian Tribe, the Secretary of the Interior periodically publishes a list of Federally recognized Tribes. If the applicant appears on this list it need only state that this is so. If the Tribal name does not appear on this list because the list has not been updated, the Tribe can still provide appropriate documentation to EPA verifying that it is Federally recognized by the Secretary of Interior. 2. "Substantial Governmental Duties and Powers" A Tribe must also satisfy the second criterion: that the Tribe is "carrying out substantial governmental duties and powers." The Agency defines "substantial governmental duties and powers" to mean that the Tribe is currently performing governmental functions to promote the public health, safety, and welfare [of the affected population] within a defined geographical area. Many Indian Tribal governments perform functions traditionally performed by sovereign governments. Examples of such functions include, but are not limited to, levying tax, ------- - 14 - acquiring land by exercising the power of eminent domain, and police power (i.e., providing for the public health, safety and general welfare of the affected population). Based on comments on the SDWA Indian Primacy rule, the Agency believes that most Tribes will be able to meet these criteria without much difficulty. (See 53 FR 37399). The Agency intends to minimize the burdens to a Tribe while attempting to demonstrate that it is carrying out substantial governmental duties and powers. The Agency proposes to require a narrative statement: (1) describing the form of Tribal government; (2) describing the types of essential governmental functions currently performed, such as those listed above; and (3) identifying the legal authorities for performing these functions (e.g., Tribal constitutions, codes, etc.). The Agency merely intends the functions listed above (e.g., police powers affecting the health, safety and welfare, taxation, and power of eminent domain) as examples. It is not necessary that an applicant be currently performing each such function to qualify for treatment as State. The Agency intends only to require sufficient documentation to determine whether a Tribe satisfies the statutory requirement of "carrying out substantial governmental duties and powers." 3. Jurisdiction The third requirement a Tribe must meet for treatment as a State is that "the functions to be exercised by the Tribe must pertain to the management and protection of water resources ------- - 15 - which are held by an Indian Tribe, held by the United States in trust for Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the boundaries of a reservation." The criterion for Tribal regulatory authority under the CWA is somewhat different than the parallel criterion under Section 1451 (a) (2) of SDWA, which states: "the functions to be exercised by the Indian Tribe are within the area of the Tribal Government's jurisdiction-" Thus, whereas Section 518(e)(2) of the CWA suggests that Tribes may only regulate those water resources which are within the exterior boundaries of a Federal Indian reservation, Section 1451(a)(2) of SDWA makes no such explicit limitation and may allow a Tribe to claim regulatory authority over lands that are outside the Federal reservation. As a result, Tribes are not precluded from applying for treatment as a State for any lands over which the Tribe believes it has jurisdiction. (See 53 FR 37400). The CWA establishes a somewhat narrower part of Indian country for which EPA will recognize Tribal authority by i restricting Tribal eligibility for treatment as a State to lands "otherwise within reservation boundaries." The Agency anticipates that this language may reduce the potential for disputes since authority to regulate with in the exterior boundaries is more readily determined. ------- - 16 - Coinroenters on the SDWA Indian Primacy Rule suggested that Tribes should not face the burden of proving their jurisdiction, i.e., that they should receive the sane general recognition of sovereign authority that EPA accords States (53 FR 37399). The Agency recognizes that there is substantial support for the general proposition that a Tribal government has authority to administer CWA programs within the exterior boundaries of the Tribe's reservation. The Agency does not believe, however, that it is appropriate to establish a rebuttable presumption concerning Tribal governmental authority. Just as when EPA considers a State application, EPA must not delegate program responsibility to a Tribe unless the Tribe can adequately show it possesses the requisite authority. The Agency recognizes that there may be some disputes regarding the extent of Tribal authority to administer CWA programs and therefore believes it necessary to require documentation to demonstrate adequate authority by Tribes applying for CWA programs. The request that a given Tribe establish its authority to administer CWA programs is not meant to be a barrier or a deterrent to that Tribe's attainment of these programs. Rather the intent of these requirements is to raise at an early date the presence or absence of a key element to effective administration of CWA programs. The process the Agency proposes to establish for Tribes to demonstrate their authority includes the submission of a statement signed by the Tribal Attorney General or an equivalent ------- - 17 - official explaining the legal basis for the Tribe's regulatory jurisdiction to administer the desired program(s). The statement is similar to the statement currently required of States applying for primacy (see, e.g., 40 CFR 123.24). The Attorney General's statement will supplement the other documentation mentioned in § of this proposed rule (e.g., a map, .copies of tribal codes and ordinances, etc.) The Attorney General's statement with the supporting documentation will assist EPA in verifying that the Tribe has the necessary authority to administer the appropriate CWA program. 4. Tribal Capability The fourth criterion that a Tribe must meet is that, in the Administrator's judgment, the Tribe must be "reasonably expected to be capable" of administering an effective program. In evaluating a Tribe's demonstration that it is "reasonably expected to be capable" of administering an effective (name of your program(s)) program, the Administrator will consider from among the following six factors those which are appropriate for the (name of program(s): (1) the Tribe's previous management experience; (2) existing environmental or public health programs administered by the Tribe; (3) its accounting and procurement systems; (4) the mechanism(s) in place for carrying out the executive, legislative, and judicial functions of the Tribal government; ------- - 18 - (5) the relationship between regulated entities and the Administrative agency of the Tribal government which is, or will be, designated as the primacy agent; and (6) the technical and administrative capabilities of the staff to administer and manage the program or a plan describing how the Tribe intends to obtain the additional technical and . administrative staff necessary to manage the program(s). Based on the nature of the (program(s) addressed in this regulation, Tribes need only demonstrate that they meet the following factors: (list the factors from the six listed above that are relevant to your proaramfsli, since the others are not considered relevant to this program(s). The Agency recognizes that certain Tribes may not have substantial experience in administering environmental programs. Although lack of this experience will not preclude a Tribe from demonstrating the required capability, the presence of such experience will be of significant importance to the Agency. The Agency believes it is appropriate to require that a Tribe show that it has either the necessary staff or a viable plan to acquire the additional technical and administrative expertise. This presumes that while a Tribe may not yet possess all the necessary existing technical and administrative expertise to administer this program at the outset, at a minimum, it must possess the administrative and technical expertise necessary to begin developing the program(s) being applied for. EPA will ------- - 19 - assist Tribes in drafting appropriate plans for developing capability to administer CWA programs. The EPA proposes to require a Tribe to supply information on its accounting and procurement system for those CWA programs where such a requirement is appropriate. The purpose of this requirement is to make an applicant demonstrate its capability to track program funding. A description of this function may be included in the Tribe's discussion of previous managerial experience. As an example, Tribes which have established accounting systems to administer contracts under the Indian Self- Determination Act (Pub. L. 93-638; 25 U.S.C. 450f) should submit a description of that system. (See 25 CFR § 271.46). The EPA proposes to request information on the Tribe's executive, legislative, and judicial functions to assure that the Tribe has the capability to administer the • * program. The EPA's evaluation of the Tribe's capability will also consider the relationship between the existing or proposed Tribal agency which will assume the program and any potential regulated Tribal entities. A common situation among Indian Tribes is that the Tribe is both the regulator and regulatee. Such a situation could result in a conflict of interest if EPA delegated the program to the Tribe, siiiwc t.he Tribe would be regulating itself. The Agency believes that independence of the regulator and regulatee is necessary to best assure effective and fair administration of these programs. ------- - 20 - This approach is not meant to require the Tribes to divest themselves of ownership of any regulated entities it owns or operates. One possible solution to the problem could be the creation of an independent organization to regulate Tribal entities subject to CWA regulatory requirements. Similar arrangements could be established utilizing existing Tribal organizations. Failure to resolve the regulator/regulatee conflict will not preclude a Tribe from being eligible for treatment as a State but is intended to alert Tribes at an early date about a potential bar to regulatory program assumption that must be resolved. Resolution of the regulator/regulatee issue relative to the CWA programs will be evaluated on a case-by-case basis. EPA does not intend to limit Tribal flexibility in creating structures which will ensure adequate separation of the regulator and the regulated entity. [Some of the CWA programs provided for under Section 518 do not have to consider this conflict as will be explained in each specific rule.] The Agency is aware that, in limited cases, States also are in a similar situation of being both regulator and regulatee. However, state infrastructures are typically such that the State agency operating the regulated entity is not the same State agency that has primary enforcement authority. This is in contrast to the typical situation exhibited by Indian Tribes which may own and operate most or all regulated entities. ------- - 21 - » As stated earlier in this notice, many Tribes, particularly the smaller Tribes, may decide that it is not cost-effective or otherwise beneficial to apply for primary enforcement responsibility because of funding and workload considerations. The Agency anticipates that, in general, a certain minimum size (as determined by Tribal population, the size of the regulated community, and the number of entities regulated) nay be necessary for Tribes to efficiently administer these programs and that some smaller Tribes may have difficulty administering these programs. Consequently, the Agency encourages smaller Tribes to consider consortium*, or intertribal agencies as ways to obtain the necessary expertise to administer these programs and to make the attainment of primacy cost-effective and beneficial to the • Tribe. The Agency will consider and evaluate all applications it receives, regardless of the applicant's size, on a case-by-case basis. Although EPA will consider applications by a group or consortium of Tribes within the same geographical area, each applicant must still meet all the eligibility requirements to be treated as a State, particularly the requirements of Section 518(e)(2). . t>. Process for Evaluating Applications Within thirty days after receipt of a Tribe's complete application for treatment as a State (which has all the information required in § ), EPA will ------- - 22 - notify appropriate governmental entities (e.g., neighboring Tribal and State governments) of the receipt of the application and the substance of and basis for the Tribe's assertion of authority over reservation vaters. Each of the governmental entities will have thirty days after receipt of the notice to submit comments to EPA. Comments will be limited solely to the issue of the Tribe's shoving under Section 518(e)(2). EPA will not consider comments directed to whether the Tribe meets EPA's other requirements for treatment as a State. If an Indian Tribes's assertion under 518(e)(2) is subjected to a competing claim, the Administrator, will consult with the Tribe, the governmental entity submitting comments, and the Secretary of the Department of the Interior, or his designee. After consultation, and in consideration of comments received,• the Administrator will determine whether the Tribe has adequately demonstrated that it meets the requirements of Section 518(e)(2). If the Administrator concludes that a Tribe has not adequately demonstrated its authority with respect to an certain reservation waters, then Tribal assumption of the . program will be restricted accordingly. Any such determination by the Administrator is not a determination of the Tribe's general regulatory authority, but only with respect to administration of the CWA program(s) addressed in this rule. A dispute over certain reservation over which a Tribe is asserting authority ------- - 23 - under Section 518(e)(2) will not necessarily delay the Agency's decision to treat a Tribe as a State for the non-disputed waters. This procedure does not imply that States *or Federal agencies have veto power over Tribal applications for treatment as a State. Rather, the procedure is simply intended to ensure that the Tribe has the necessary authority to administer the program. The Agency will not rely solely on the assertions of a competing regulatory authority; it will make an independent evaluation of the Tribal showing. The Agency does not believe it will be possible to approve or disapprove all applications for "treatment as a State" within a designated time frame. The Agency fully anticipates that there will be instances where the determinations under Section 518(e)(2) and (e)(3) will require the Agency to go back to a Tribe for. clarification or additional information. Likewise, the Agency's experience with States applying for various EPA programs indicates that at times meetings and discussions between EPA and the State are necessary before all requirements are met. The Agency believes that the same process of communication with Tribes will be beneficial in ensuring that Tribes meet the "treatment as a State" criteria in an expeditious manner. If the Administrator determines that a Tribe meets all the requirements of Subpart , a Tribe is then eligible for this program(s). CWA clearly mandates that a Tribe qualify for "treatment as a State" before it can receive grants except for the limited case of awarding grants to Tribes under Title II ------- - 24 - where Tribes have the option to receive project grants without applying for treatment as a State. A decision by the Administrator that a Tribe does not meet the requirements for treatment as a State does not preclude the Tribe from resubmitting the application at a future date. If the Administrator determines that a Tribal application is deficient or incomplete, the Tribe should consult with EPA on what changes are necessary. III. OTHER ISSUES 1. Alaska Native Villages and Oklahoma's Tribes Under the CWA Indian Amendments the Agency concludes that Alaska Native Villages (except for the Annette Island Reserve of the Metlakatla Indian Community) are not eligible to apply for treatment as a State based on the definition of Indian Tribes. The Act uses the following, definition in Section 518 (h): "(1) 4 "Federal Indian reservation" means all lands within the limits of any reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; and (2) "Indian Tribe" means any Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation." [emphasis added] Since Alaska Native Villages do not exercise authority over federal Indian reservations, under the terms of the CWA they are not "Tribes" for purposes of Section 518. ------- - 25 - The Agency's conclusion is based on the fact that since passage of the Alaska Native Claims Settlement Act (25 U.S.C. 1618) in 1971, Alaska Native Villages, with one limited exception, do not exercise governmental authority over a Federal Indian reservations. This lack of authority prevents Alaska Native Villages from being eligible to receive grants or assume programs under Section 518(e) of the Act. Section 518(g) of the CWA does not affect EPA's analysis of the status of Alaska Native Villages. Section 518(g) states that "no provisions of this Act shall be construed to — (1) grant, enlarge, or diminish, or in any way affect the scope of the governmental authority, if any, of any Alaska Native organization, including.any federally recognized tribe, traditional Alaska Native council,' or Native Council organized pursuant to the Act of June 18, 1934 (48 Stat. 987), over lands or persons in Alaska; (2) create or validate any assertion by such organization or any form of governmental authority over lands or persons in Alaska; or (3) in any way affect any assertion that Indian country as defined in Section 1151 or title 18, United States Code, exists or does not exist in Alaska. Section 518(g) merely clarifies that providing for Tribal participation under the CWA, in and of itself, did not change the legal status of the Alaska Native Villages. ------- - 26 - The Agency also concludes that certain Tribes on former reservations in Oklahoma and elsewhere likewise are not eligible to apply for the CWA programs or grants addressed in this notice because they also do not meet the definition Tribe under Section 5l8(h)(l). However, Alaska Native Villages other non-reservation Tribes may apply for grants as municipalities through the state construction grant program or receive a loan from the State Revolving Loan Fund program under Title VI of the CWA. In addition, legislation has recently been adopted which will allow Alaska Native Villages and Tribes on former reservations in Oklahoma to apply for Title II Grants under the Indian set-aside of Section 518(c). (Pub. L. 100- , 101 Stat. ). ------- ------- ------- PUBLIC WATER SYSTEM (PWS) PROGRAM TABLE OF CONTENTS: EXECUTIVE SUMMARY SUPPORTING DOCUMENTS: • Final Rule: Safe Drinking Water Act—National Drinking Water Regulations, Underground Injection Control Regulations, Indian Lands (40 CRF Parts 35,141,142,143,144,145, and 146) September 26,1988 • Final Guidance on Implementing the Indian Primacy Rule for the PWSS and UIC Programs April 25,1989 • Indian Drinking Water Supply Study (Executive Summary, Chapter 1, and Chapter 4) January 1988 ------- EXECUTIVE SUMMARY: PUBLIC WATER SYSTEM (PWS) (40 CFR Parts 35,124,141-146) OVERALL PROGRAM PURPOSE The Safe Drinking Water Act (SOWA) of 1974 was enacted to protect the quality of drinking water supplies throughout the U.S. by establishing four major programs: the Public Water System, Underground Injection Control (UIC), Wellhead Protection, and Sole Source Aquifer Demonstration programs. The purpose of the PWS program is to insure the public a safe drinking water supply by establishing the maximum level of any contaminant. The SDWA Amendments of 1986 allow Indian Tribes to be treated as States for purposes of administering Public Water System programs if they meet the conditions specified in the Act. EPA promulgated regulations establishing procedures for Indian Tribes to be granted primary enforcement responsibility for administering PWS program. The three-step procedure includes: 1. Applying for treatment as a State; 2. Applying for and receiving Federal funding to develop a PWS program; and 3. Applying for and receiving primary enforcement responsibility on Indian Lands and the Federal funding to support the program. ELIGIBILITY REQUIREMENTS FOR TREATMENT AS STATES (40 CFR Part 142, Subpart H and Section 1451 of the SDWA)) Tribes may apply for treatment as States under either the Safe Drinking Water Act or the Clean Water Act. If approved under either statute, the Tribe need only submit information specific to the PWS program to apply for treatment as a State and then to be eligible to apply for financial assistance and primacy for the PWS. To meet the eligibility requirements for treatment as a State, a Tribe must: 1. Be Federally Recognized. The Tribe must demonstrate that it is included on the list of Federally recognized Tribes, published by the Department of the Interior. 2. Carry Out Substantial Governmental Duties and Powers. EPA defines this to mean the Tribe is performing functions to promote the health, safety, and welfare of the affected population over a defined area. (Examples of these functions include, but are not limited to, the power to tax, the power of eminent domain, and police power.) ------- To address this criterion, the Tribe must submit a narrative describing: 1) its form of Tribal government; 2) the types of government functions being performed; 3) the sources of authority to perform these functions. 3. Demonstrate that the PWS to Be Regulated is Within the Area of its Jurisdiction. The Tribal Attorney General, or an equivalent officer, must submit a statement certifying that the Tribe possesses sufficient authority to regulate and enforce the PWS program. Legal documentation, such as Tribal constitutions, codes, or resolutions, must be included. The Tribe must also submit a legal description and map of the area over which it has authority. 4. Demonstrate its capability to administer an effective PWS program in a manner consistent with the terms of the Act. Tribes must submit a narrative statement that addresses the six criteria related to capability identified in 40 CFR 142.76. PROGRAM RESPONSIBILITIES AND ASSISTANCE THAT STEM FROM ASSUMING THE PWS PROGRAM Primacy Responsibilities (40 CFR Part 142) Once the Tribe has completed the development phase, which can last up to three years, and has shown it can administer the program, the Tribe may apply for primacy. The requirements for primacy are defined in 40 CFR Sections 142.10 through 142.13. Public Water System Supervision (PWSS) primacy regulations are currently being revised and are expected to be promulgated in July 1989. Tribes applying for primacy after that date will be subject to the new regulations. Program Assistance (40 CFR Part 35, Subpart A) If designated eligible to be treated as a State, a Tribe may apply for a development grant. Regional staff must work closely with the Tribes to clearly identify the individual needs of the Tribe and the costs. A Tribe must match 25% of Federal funding unless it can show that it does not have adequate funds or in-kind contributions to meet this requirement, in which case it may be allowed to match only 10%. In addition, the grant application must address: 1. A plan to resolve any conflicts of interest between the primacy organization and the organization that owns/operates the public water systems; 2. Establishment and maintenance of a program to certify laboratories conducting contaminant measurements of drinking water; ------- 3. Development of a compliance and enforcement strategy and an enforcement agreement with EPA to respond to violations of the SWDA, National Primary Drinking Water Regulations, or the Tribe's own regulations. ------- Monday September 26, 1988 Part II Environmental Protection Agency 40 CFR Parts 35, 124, 141, 143, 144, 145, and 146 Safe Drinking Water Act—National Drinking Water Regulations, Underground Injection Control Regulations; Indian Lands; Final Rule ------- 37396 Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 35.124,141,142,143, 144,145, and 146 [FRL-3304-2] Safe Drinking Water Act—National Drinking Water Regulations, Underground Infection Control Regulations; Indian Lands AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Safe Drinking Water Act (SDWA) Amendments of 1986 (Pub. L. 99-339) require EPA to promulgate regulations specifying those provisions of the Act for which it would be appropriate to treat Indian Tribes as States. This rule allows Tribes to be treated as States for purposes of administering a Public Water System or Underground Injection Control program. The rule establishes procedures for. (a) Determining eligibility of Indian Tribes to apply for treatment as States; (b) if found eligible, to apply for primary enforcement responsibility (primacy) on Indian lands; and (c) to receive grants to support EPA approved Public Water System and Underground Injection Control regulatory programs. EPA in a separate notice proposed rules for administration of Wellhead Protection and Sole Source Aquiftr Demonstration programs by Indian Tribes [52 PR 46712. Decembec a 1467). EFFECTIVE BATE: The amended requirements contained in this nrfe found a* 40 CFR Part* 35.124,141. «2, 143,144.145. and1146 will take effect October 26.1986. In accordance with 40 CFR 23.7. this regulation shall be considered final Agency action for the purpose of judicial review at 1:00 p-nv eastern time on October 11.1988. ADDRESSES: Public comments. supporting documents, and the public docket for this rulemaking are available for review during normal business hours at the Environmental Protection Agency, Room 1003 bast '1 ower, «ui Ki Sireei SW.. Washington. DC 20460. FOR FURTHER INFORMATION: Contact Al Havinga. State Programs Division. Office of Drinking Water (WH-550E). Environmental Protection Agency, 401 M Street SW., Washington, DC, 20460, telephone (202) 382-5555. SUPPLEMENTARY INFORMATION: Table of Contents II Background A. EPA's Indian Policy B. Statutory and Regulatory .Background C. Public Comments on the Proponl 01. Summary and Explanation of Today** Action A. Statutory, Regulatory, and Prog*an»attc Framework 1. Statutory and Regulatory Framework. 2. Programmatic Framework B. Treatment of Indian Tribes as States 1. Federal Recognition 2. "Substantial Governmental Duties and Powers" 3. Jurisdiction 4. Tribal Capability 5. Process for Evaluating Applications C. Requirement* for Primary EaftnceBeot Responsibility 1. Tribal Primacy Requirements 2. Primacy Requirements cot Appfinble to Tribes 3. Administrative Option* Avaifcbt to Tribes 4. Primacy Technical Auistaaea D. Program Grant* 1. Grant Eligibility 2. Reserves for Indian Tribes 3. Grant Matching Requirements 4. Reallocation of ReserveFtatls 5. Development Grant Time PMmetand! Grants E. Other Issues 1. Technical Assistance 2. Alaska Native Villages 3. Trust Responsibility IV. Other Regulatory Requirements A. Compliance With Executive Order 12291 B. Paperwark Reduction Act C Regulatory Flexibility Act List of Subjects in 40 CFR Parts 35.114.141. 142.143.144.145, and 146 I. Statutory Authority The ]one 19,. 1986 amendments; to the Safe Drinking Water Act (42 U.S£. 300f et seq.] added a new section 1451 entitled "Indian Tribes." The amendments authorize EPA to treat Indian.Tribes as States, delegate primary enforcement responsibility for the Public Water System (PWS) and Underground Injection Control (U1C) programs, and provide grant ancT contract assistance to Indian Tribes where appropriate. The amendments requite EPA to-promulgate regulation* by December 19,1987, specifying; those provisions of the Act where it is appropriate to treat an Indian Tribe as a State. Section 1451 of the Safe Drinking Water Act establishes certain criteria an Indian Tribe must meet before treatment as a State is authorized: (1) "TheIndian Tribe is recognized by the Secretary of the Interior and has a governing body carrying out substantial governmental duties and powers." (2) "the functions to be exercised by the Indian Tribe are within the area of the Tribal Government's jurisdiction;" and f3j "the Indian Tribe is reasonably £xpected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes rf * ' * (the Act] and of all applicable regulations." The amendments state that Indian Tribes "may not assume or maintain primary enforcement responsibility in a manner less protective of the public health than such responsibility may be assumed or maintained by a State". However, an Indian Tribe "shall not be required to exercise criminal enforcement jurisdiction for purposes of complying wQh" the requirements for primary enforcement responsibility. Because funds are limited and will be •Hocated on the basis of the Tribe's workload many Indian Tribes may decide it h not cost-effective or otherwise beneficial to apply for primary enforcement authority. For these Tribes, and Tribes otherwise deemed not eligible for "treatment as a State", the EPA's Regional Offices will continue to regulate public water systems and injection wells, on their reservations. This issue is discussed more fully in Section HI (E)(l). n. Background A. EPA's Indian Policy This rule is consistent with Federal poficy statements regarding Indian Tribes. On January 24,1983. President Reagan signed a Federal Indian Policy Statement providing for treatment of Tribal governments on a government-lo- go vernment basis and supporting the principle of self-determination and local decision-making by Indian Tribes. The EPA responded to the President's statement by developing a discussion paper entitled "Administration of Environmental Programs on Indian Lands" in July 1983 and subsequently adopted the EPA Indian Policy Statement and Implementation Guidance in November 1984. The EPA's policy is "to give special consideration to Tribal interests in making Agency policy and to ensure the close involvement of Tribal governments in making decisions and managing the environmental programs affecting re&ervttuon idiiu&. in pi~aCiiCc. ZJ\A» 3 policy is to work directly with Tribal governments as independent authorities for reservation affairs and not as political subdivisions of States. B. Statutory and Regulatory Background The Safe Drinking Water Act was adopted on December 16.1974 (Pub. L H*-SUJJ and amended in ~i5~7 (Pub. L. 95-190). 1979 fPub. L. 96-63). 1980 (Pub. L 96-502), and 1966 (Pub. L. 95-353,. TIJC statute was enacted to protect the quality of drinking water supplies ------- Federal Register / Vol. 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations 37397 throughout the United States by establishing four major programs: Public Water System. Underground Injection Control, Wellhead Protection, and Sole Source Aquifer Demonstration programs. The Public Water System program establishes drinking water quality standards; the Underground Injection Control program protects groundwater by regulating the injection of fluids into the ground; the Wellhead Protection program is designed to protect aquifers from contamination through controls of the area around public water supply wells; and the Sole Source Aquifer Demonstration program is designed to protect "critical aquifer protection areas" within aquifers designated as "sole source aquifers." The Safe Drinking Water Act allows States to assume primary enforcement responsibility (primacy) to administer Public Water System and Underground Injection Control programs. The Safe Drinking Water Act also authorizes EPA to support Public Water System and Underground Injection Control programs by providing financial and technical assistance to develop and administer these programs. Currently. EPA administers the Public Water System and Underground Injection Control programs on Indian lands. However, the 1986 Safe Drinking Water Act Amendments change the relative roles and responsibilities of Indian Tribes and the EPA by enabling Indian Tribes to apply to EPA for "treatment as a State" and, if approved, subsequently to apply for primary enforcement responsibility for the Public Water System and Underground Injection Control programs. The EPA formed a workgroup in August 1986 to draft regulations that would implement the Safe Drinking Water Act Amendments pertaining to Indian Tribes. In October 1986. the workgroup circulated draft material to all Indian Tribes and States for comment. On July 27,1987, EPA proposed at 52 FR 28112 to amend the National Drinking Water regulations found at 40 CFR Parts 141.142, and 143; the Underground Injection Control regulations found at 40 CFR Parts 144, 145. and 146: the Public Water System and Underground Water Source Protection Grant regulations found at 40 CFR Part 35: and EPA's generic permitting procedures at 40 CFR Part 124. These regulations will enable Indian Tribes to be treated as States and enable Tribes meeting the "treatment as a State" criteria to apply for primary enforcement responsibility and financial assistance for the Public Water System and Underground Injection Control programs. Copies or the proposed regulations were sent to each Federally recognized Alaska Native Village and Indian Tribe prior to publication in the Federal Register to enable Indian Tribes and Alaska Native Villages additional time to comment on the proposed rule. The following final rule reflects the comments on the July 27,1987 proposal and the Agency's response. C. Public Comments on the Proposal The EPA requested comments on all aspects of the July 27 proposal. A summary of the major comments and the Agency's response to the issues raised ere presented in the following section. The Agency's detailed response to the comments received are presented in the document "Response to Comments Received on the Proposed Indian Primary Enforcement Responsibility Requirements of July 27,1987," which is available in the public docket for this rulemaking. The EPA received 38 written comments on the proposed rule. Twenty- two written comments were received representing the views of 32 Indian Tribes and Alaska Native Villages, nine written comments were received from States or Federal Agencies, five written comments were received from public or professional organizations, and two written comments were received from private industry. The EPA held three public hearings on the proposed rule: August 17,1987 in Washington. DC: August 25.1987 in Spokane, Washington; and September 3, 1987 in Denver, Colorado. Fourteen individuals representing eleven Indian Tribes, one professional organization. one industry, and one private individual made oral statements at the public hearings. ID. Summary and Explanation of Today's Action A. Statutory. Regulatory and Programmatic Framework 1. Statutory and Regulatory Framework Under the existing Safe Drinking Water Act requirements, Indian Tribes are currently treated as "municipalities." Today's rule implements section 1451 of the Safe Drinking Water Act which authorizes EPA to treat an Indian Tribe as a State if the Indian Tribe meets the eligibility criteria. Once eligible, the Indian Tribe may apply for primacy under sections 1413.1422, and 1425 of the Act. The statute provides that Indian Tribes which do not meet the criteria will still be treated as municipalities with Federal regulatory oversight. States and eligible Indian Tribes may apply for primary enforcement authority for a Public Water System program under section 1413 of the Safe Drinking Water Act; a Class I. II, III. W, and V Underground Injection Control program under section 1422 of the Act; and a Class I, HI, IV, and V Underground Injection Control program under section 1422 and/or a Class II Underground Injection Control program under section 1425 of the Act States and Indian Tribes treated as States may also apply to receive technical and/or financial assistance for primary enforcement responsibility under section 1443 of the Act The EPA discusses later in this notice how specific provisions of sections 1442,1443, and 1444 affect Indian Tribes. With respect to the Underground Injection Control program, EPA would like to clarify that eligible Indian Tribes can apply for primacy for the Class D program under section 1425 of the Act separately from primacy for the Class I, m. TV, and V program. However, an Indian Tribe would only need to apply for "treatment as a State" once for the Underground Injection Control programs since an EPA determination of "treatment as a State" will cover both the 1422 and the 1425 programs. A Tribe must show the appropriate jurisdiction and capability and otherwise qualify for treatment as a State in order to subsequently apply for Public Water System and Underground Injection Control grants and primacy. For example, if the Tribe is designated for "treatment as a State" for the Public Water System program, the Tribe would then be treated as a State for only those provisions of the Act and EPA regulations relating to the Public Water System program (e.g., SDWA sections 1412,1413,1414.1415,1416,1443(a)). The Tribe would not be eligible to participate in other programs or grants contained in the Act until EPA approved the corresponding separate application for "treatment as a State." For programs authorized by the Safe Drinking Water Act EPA intends to approve Indian Tribes for "treatment as a State" on a program-by-program basis. As is the case for States, an Indian Tribe must have its own legal authorities to administer a program under the Safe Drinking Water Act; EPA cannot delegate its own authority. The EPA received several comments suggesting that EPA should require Indian Tribes to apply once for "treatment as a State" for all EPA water programs. The Agency finds that this ------- 37398 Federal Register / VoL S3. No. 186 / Monday. September 2t. 1968 / Rules and Regulations comment haa merit. When all regulations under me Safe Drinking Water and Clean Water Acts stipulating how Tribes shell be treated aa Slatea are final the Agency will develop procedures to implement a single application procedure. Most qualifications are of a genera) nature and need only be provided when a Tribe first applies for "treatment ai a State" under the Safe Drinking Water or the Clean Water Acts. However, the Agency believes that even with a streamlined application procedure, some qualifications such, as §5 142.76(c), 142.56(d)t«). 145»76(cJ. andl45-56(dU.fl} will need to be demonstrated Cor each program. For example,, an Indian Tribe may possess the requisite jurisdiction to regulate public water systems on certain lands but lack the authority to regulate underground injection wells on these lands. Consequent!;, the Agency has revised the final rule to enable Indian Tribes which have previously been designated as a State to provide only that information which is unique to the Public Water System or Underground Injection Control programs (H 142.76(1") and M5-56(f}J. 2. Programmatic Framework Today's rule establishes a three-step process for an Indian Tribe to assume primary enforcement responsibihy for the Public Water System and Underground Injection Control programs. The first step is to receive designation for "treatment a* a State." The four-criteria an Indian Tribe must meet for "Stare" designation for the Public Water System and Underground Injection Contra! programs are set forth in 40 CFR MZ.72 and 145.52 respectively. After receiving "State" dtesignefion for a program, a Tribe is then eligible to apply for a grant to develop the program (the second step) and primacy fthe third step). EPA anticipates that typically Indian Tribes will apply for a development grant before applying for primacy. Furthermore. EPA expects that most Indian Tabes will need &e faH three and/or four years (this issue is discussed nor* fully in section iH to develop the corresponding public Water System and Underground Injection Control program*. Consequently, EPA anticipates (hat applications for primary enforcement responsibility would not occur until near the end of the program development process. Before a Tribe can receive a development grant the Tribe mast submit a deveiopmeni plan tot EFA approval. This plan must outline in • detail what activities the Tribe wiii undertake to obtain primacy, how the Tribe wiil carry out these activities, and the specific time frame in which the Tri'ue wilTaccampush these artivUies. The EPA will- on an annual basis evaluate Tribal adherence to me development plan. The Regional Administrator will not give a continuation award to any Tribe unless it demonstrates reasonable progress towards astiiming irknary enforcement responsibility within the three-year or four year period. Approximately six to twelve months before completion of the program development process. Tribes would formally apply ta EPA for primary. If the Tribe hits- fbilcwcd far deveiojurent plan, it typinallp wouU meet the programmatic requirements as well as possess the necessary administrative and technical capability to assume primacy. Excepting the "treatment as a State" designation, the process outlined above ifl similar to the process States currently use to abUic primacy. However, as discussed later in. this notice. Indian Tribes are afforded longer deveiopmeni times than Stales in order to gain tae necessary expertise to assume primacy. B Treatment of Indian Tribes as States This rule creates procedures for Indian Tribes to apply to EPA fur "treatment as a Stare." After "State" designation. Tribes are subsequently eligible to apply for financial assistance and primacy for the Public Water System and Underground fcrjectron Control programs. This rule creates procedures set forth, m a new Subpart H under Part M2 {National Primary Drinking Water Regulations Implementation), and a new Subpcrt E under Part 145 (State CIC PsBgiwu Requirement), each ttfcd: "Tteateient of Indian Tribes a« States." Sutparts H and E establish criteria Indian Tribes- must meet for "treatment as a State". list the information the Tribe must provide in its application to EPA, and provide a procedure for EPA to formally review applications far "treatment as a State." The requirements a Tribe must meat under SubparU H and E are identical. ner iu» rtuc. • treatment as a State if it meets the four criteria listed in S S M2.72 and 145.52. The four eligibility criteria are: (1) The Indian Tribe nuct be recognized by the Secretary of the Interior. (2) the Indian Tribe must have a governing body carry ii^ out «nh^iai»tial governmental duties and powers over a defined area: (3) ths Tribs ~"~- J*-JT~^«*-.'»*» that *e public water systems and/or unijergi uiciif injection wclk it •xti! regulate are within the area of its jurisdiction: and (4) the Tube most demonstrate that it • "reasonably expected to-be capable" of administering [in a manner consistent with the tenns and purposes of the Act and all applicable negaialicna.) an effective Public Water System and/or Underground Injection Control program. The EPA's review of the comments revealed; general support toe tn» proposed apptwdL to treating Tribes as States. H*v«e«*r. tae support was qualified: bj the view tha4 some criteria for "treatment as a State" wen- tea demanding. One of the commeatec* argued that the criteria in Pacts 142 and 145 should be eliminated since there is no statutory basis for the teqairtmeiu that Tribes must go through a. "prequalificatian" process that was not required of States. However, section 1451f.a) of the Act clearly specifies that the Agency is authorized to treat Tribes as Stales and subsequently to award grants and delegate primacy only to those Tribes which meet the criteria for "treatment as a State" set forth in section 1451(b). The Agency must ensure that a Tribe meets the statutory criteria in section 1451ft>Kl) before it is empowered.to treat the Tribe as a State under the Act Another commenter stated that the statutory criteria contained in section 1451(b)[ll of the Safe Drinking Water Act are "boiler plate." The commenter stated that the language of 1451[b)(l) was "" * * simply to reaffirm mat Tribal primacy programs would be no less rigorous than the States." This view is based upon the commenier's- reading of the legislative history and discussion with "individuals involved" in the development of the 1986 Amendments. The Agency cannot presume that such statutory language is superffaous. The Agency finds nothing in the legislative history *> support this interpretation of section WBlfbrJfl). Moreover, ff this view were correct. mere wwrfd hare been no need to stale in section 1451f»f2) that "Indian Tribes [may mot f assame or maintain primary enforcement respomsibffity in a marine- less proteetpve of me pobfic health then- such ~er«nncAiK*y nay be cssumed or maintained by a State." 1. Federaf Recognition With icspect to Federal recognition as an Indian Tribe, the Secretary of the Interior periodically publishes a list of Federally recognized Tribes. If the applicant appears on Ibis liet it ne*d nnly state that this is so. If ne TrikaJ name does not appear on this Ksi bsesnse the h»i has not been updated. the Tribe can still provide appropriate ------- Federal Register / Vol. 53. No. 186 / Monday, September 26. 1988 / Rules and Regulation* 37399 documentation lo EPA verifying that it is Federally recognized. 2. "Substantial Governmental Duties and Powers" The second criterion that a Tribe must satisfy to be treated a« a State is that the Tribe has a governing body which is "carrying out substantial governmental duties and power*." The Agency received several comments on this issue. A number of the commenters suggested that most Indian Tribes will be able to meet this criterion because most Tribal governments do. in {act, carry out substantial governmental duties and powers. One cf the commenters stated that the phrase "carrying out substantial governmental duties and powers" was only designed to "limit eligibility to those Tribes that are Federally- recognized" and that "(f)ew if any Tribes do not carry out substantial governmental duties and functions." The same commenter stated that if more is required than establishing that the Indian Tribe is Federally recognized, then the regulations should establish a presumption that a "federally- recognized" Tribe does carry out "substantial governmental duties and functions." The Agency cannot presume that the statutory phrase "carrying out substantial governmental duties and powers" is superfluous. If the terms "Federally recognized" and "carrying out substantial governmental duties and powers" are synonymous, then the latter phrase would necessarily be redundant. The Agency does not find any evidence in the legislative history that the only purpose of this language was to limit the eligibility determination to the issue of whether a Tribe was Federally recognized. Moreover, the essential significance of Federal recognition is that a given recognized Tribe is eligible to receive services and participate in programs which are available only to Indians because of their status as Indians. Although Federal recognition may imply that the Tribe has some form of governmental structure (/.e.. has some identity as a governmental entity), this does not automatically mean that a particular applicant which is a Federally recognized Tribe is. in fact, currently "carrying out substantial governmental duties and powers." The same commenter stated that the Agency's use of the Indian Governmental Tax Status Act (Pub. L. 97-4 73} in the discussion of this requirement accompanying the proposed rule (52 FR 28113) was inappropriate. The commenter stated that the Internal Revenue Service (IRS) has presumed that Federally recognized Tribes carry out "essential governmental functions" (the language in the Tax Status Act),* and thus IRS has established a "conclusive ptesnmption" that a Federally recognized Tribe does, in fact. carry out "essential governmental functions." The EPA made reference to the Tax Status Act because of IRS's interpretation of the phrase "substantial governmental functions"; the IRS regulations state that the police power, the power to tax, and me power of eminent domain are the usual types of basic governmental functions performed by sovereigns. In construing the term "carrying out substantial .governmental duties and powers" in Section 1451(b)(l) of the Safe Drinking Water Act EPA is not bound by the decision of IRS to presume that Federally recognized Tribes carry out "essential governmental functions", especially since the purposes of the two statutes are different. The Agency believes that this second criterion will not pose a barrier to treatment of Tribes as States. Baaed on the comments received, the Agency believes that most Tribes will be able to meet this requirement with relative ease. The Agency recognizes that in general. Federally recognized Tribes do carry out "substantial governmental duties and powers." However, the Agency has a statutory obligation to make this determination on a case-by-case,basis. Therefore, the Agency does not believe that it is appropriate to create a presumption (whether conclusive or returnable in nature) that all Federally recognized Tribes are "carrying out substantial governmental duties and powers." The comments expressed the general view that the proposed requirements for submission of documentation (eg.. Tribal constitutions, codes, etc.] would be unduly burdensome and unnecessary. Based on the comments received, the Agency is relaxing the proposed rule so as not to require such documentation initially. Rather, the Agency will require a narrative statement: (1) Describing the form of Tribal government (2] describing the types of substantial governmental functions currendy performed; and (3) identifying the source of the authority to perform these functions (e-g.. Tribal constitutions, codes, etc.J. The Agency is, however. continuing to require documentation lo support the Tribe's claim of jurisdiction. Additionally, the Agency is reserving the right to request supplemental information as it may deem necessary. Finally, one commenter inquired as to whether an applicant must be exercising each of the types cf substantial governmental functions listed in { 142.78(b)(l) and S 145.52(b)tl) fi«, police powers affecting the health, safety and welfare, taxation, and power of eminent domain) to meet this criterion. The Agency merely intended the listed types of functions aj examples. It is not necessary that an applicant be currently performing each: such function to qualify for "treatment a> a State." 3. Jurisdiction The third requirement a Tribe mast meet for "treatment as a State" is that the functions to be exercised by the Tribe must be within the "area of the Tribal Government's jurisdiction." EPA interprets this statutory language io mean that the Tribal government must have both the subject matter and geographical jurisdiction necessary to administer a Public Water System and/" or Underground Injection Control program. A number of commenters urged that the Agency should automatically assume (or establish a rebuttable presumption to the effect) that a Tribal government has the necessary jurisdiction to administer and enforce either the Public Water System program or the Underground Injection Control program within the exterior boundaries of the particular Tribe's reservation. The concern of the commenters appears to have been two-fold. First, many commenters expressed the view that Tribes should not lace the burdeo of proving their jurisdiction, i.e.. that they should receive the same general recognition of sovereign authority that EPA accords States when reviewing applications for primacy. A related, but different, concern is that EPA should not establish a process for resolving jurisdictional disputes that allows States to impede Tribal assertions of jurisdiction over reservation lands. This second concern is addressed in Section. nifBNS) of this preamble. The Agency recognizes that there is substantial support for the general proposition that a Tribal government has jurisdiction lo administer a Public Water System and/or Underground Injection Control program within the exterior boundaries of the Tribe's reservation. The Agency does not - believe, however, that it is appropriate to establish a rebuttable presumption concerning Tribal governmental jurisdiction on reservation lands. EPA la- under a duty to ensure that all public water systems and underground injection control activities are being regulated by EPA. the Tribes, or States. Just as when EPA considers an ------- 37400 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1986 / Rules and Regulations application for State primacy. EPA rnust not delegate enforcement responsibility to a Tribe unless the Tribe can adequately show it possesses the requisite jurisdiction. Establishment of a presumption regarding Tribal jurisdiction would not be protective of human health and the environment since Tribal authority may, in some instances. be in question. The inappropriateness of establishing a presumption is exemplified by the comments of the Penobscot Tribe of Maine requesting that EPA promulgate special regulations to enable the Penobscot Tribe to be treated as a State for purposes of both the Public Water System and Underground Injection Control programs. This request is based on the fact that under the terms of the Maine Indian Land Claims Settlement Act of 1980 (25 U.S.C. 1721 et seq.) and the Maine Implementation Act (30 Me. Rev. Stat. Ann. section 670 et seq. (1979. as amended 1981}) the State has limited. but not clearly defined, regulatory jurisdiction over the lands within the exterior boundaries of the Tribe's reservation, presumably, the other two Federally recognized Tribes which were parties to the Maine Settlement Act. the Passamaquoddy Tribe and the Houllon Band of Maliseet Indians, are subject to the same jurisdictional infirmity. In addition, different jurisdictional problems may arise with respect to complex ownerships potentially involving Federal. State, and Tribal jurisdiction within so-called "checkerboard areas" (i.e.. fee lands owned by non-Indians or non-Indian entities interspersed with Indian owned lands within the exterior boundaries of reservations). The request that a given Tribe establish its jurisdiction for either a Public Water System program or an Underground Injection Control program is not meant to be a barrier or deterrent to that Tribe's attainment of primacy. Rather, it reflects the need to identify at an early date the presence or absence of a key element to effective administration of either program. The EPA recognizes its statutory responsibility not to delegate eufurcemeiii euiliuriiy iu o Tri'ue unless the Tribal government possesses the necessary regulatory authority. Therefore, EPA believes that it would be inappropriate to develop special procedures to allow Tribes which do not meet the statutory criteria under section 1451 (a) nonetheless to be treated as a State as requested by the Penobscot lacks the statutory authority to make funds available under SfcUioii 1433 to Tribes which do not qualify for "treatment as a State", as further requested by the Penobscot Tribe. Several"commenters suggested that for jurisdictional determinations the Agency should include a definition of "Indian lands" in the regulations which equates Indian lands with "Indian Country." The pertinent text of 18 U.S.C. 1151 is as follows: ' * * the term "Indian Country", as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government. notwithstanding the issuance of any patent. and. including rights-of-wey running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) ell Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. One of the commenters noted further that the draft Underground Injection Control Direct Implementation Regulations (52 FR 17684) proposed to adopt the 18 U.S.C. 1151 definition and that, to be consistent, it should also be used in these regulations. The EPA's recognition that there is substantial support for the general proposition that a Tribal government has jurisdiction to administer a Public Water System and/or an Underground Injection Control program within the exterior boundaries of a Tribe's reservation does not require the Agency to adopt a definition of "Indian lands" which equates this term with the term "Indian Country." The adoption of the "Indian Country" definition within the Underground Injection Control Direct Implementation draft regulations reflects EPA's basic concern with ensuring that all underground injection activities on all lands, including Indian lands, are regulated. By contrast, the basic concern addressed by these regulations is to allow an eligible Indian Tribe to regulate public water systems and underground injection activities located only on those lands over which the Tribe adequately demonstrates its jurisdiction, in shon. the underlying concern addressed by these regulations is not as broad as the basic concern addressed by the Underground Injection Control Direct Implementation proposed regulations of May 11.1987. Furthermore, EPA believes that adoption of the proposed definition of "Indian Country" would tend to . 11... \ . -»... * gcuciaie auuinulidi jiAJlBunuuildl disputes. This is because the term "Indian Country" encompasses areas which are "dependent Indian communities." The issue of whether a particular area constitutes a "dependent Indian community" is inherently complex; what constitutes the proper resolution of this issue will be the subject of sharply divergent, views among the affected governmental entities. To effectively increase the number of potentially disputed areas would not be in the best interest of the public health. Also, regulated entities carrying on activities within disputed areas would be presented with uncertainty as to whether a particular Indian Tribe or another governmental entity was the proper regulatory authority. Finally, the comments received from Indian Tribes indicate a basic concern with obtaining authority to administer Public Water System and Underground Injection Control programs within the exterior boundaries of their respective reservations. The Agency does not need to adopt the definition of "Indian Country" to meet this basic concern. EPA notes that this rule is not intended to. and does not, preclude a Tribe from applying for "treatment as a Stale" with respect to any lands over which it believes it has jurisdiction. To assist EPA in reviewing the Tribe's assertion of jurisdiction, the Agency is adding a requirement to §§ 142.76(c) and 145.56(^1181 the Tribe submit a statement signed by the Tribal Attorney General or an equivalent official explaining the legal basis for the Tribe's regulatory jurisdiction to administer a Public Water System and/or Underground Injection Control program. The statement is similar to the statement currently required of States applying for Underground Injection Control primacy (40 CFR 145.24}. It is a logical supplement to the jurisdictional documentation mentioned in !§ 142.76(c) and 145.56(c) of the proposed rule, which is still required under this final rule (a map. copies of tribal codes and ordinances, etc.) The Attorney General's statement with the supporting documentation will assist EPA in verifying that the Tribe has the necessary jurisdiction to run a Public Water System and/or Underground Injection Control program. 4. Tribal Capability The fourth criterion that a Tribe must meet is that in the Administrator's judgment it must be "reasonably expected to be capable" of administering an effective program. In i. ». ». . .. . % ..1 _ - uicsiujig 1115 ueieimiimuuij at> tu v\ncmcj a Tribe has shown that it is "reasonably expected to be capable" of ------- Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37401 administering an effective Public Water System and/or Underground Injection Control program, the Administrator will consider six factors: (1) the Tribe's previous management experience: (2) existing environmental or public health programs administered by the Tribe: (3) its accounting and procurement systems; (4) the mechanism(s) in place for carrying out the executive, legislative, and judicial functions of the Tribal government: (5) the relationship between the owner/operator of the public water systems and/or underground injection wells and the administrative agency of the Tribal government which is. or will be. designated as the primacy agent: and (6) the technical and administrative capabilities of the staff to administer and manage the Public Water System and/or Underground Injection Control program(s) or a plan describing how the Tribe intends to obtain the additional technical and administrative staff necessary to manage either program. One commenter noted that the Agency should look at general management experience. EPA agrees and emphasizes that the description of the Tribe's previous management experience may include information which indicates that the Tribe has the general managerial expertise tc administer an effective Public Water System and/or Underground Injection Control program. One source of information that a Tribe ' may use to demonstrate managerial capability is administration of programs and services under contracts authorized by the Indian Self-Determination and Education Assistance Act (Pub. L. 93- 638). the Indian Mineral Development Act (Pub. L. 97-382). and the Indian Sanitation Facilities Construction Activity Act (Pub. L. 86-121). The Agency recognizes that many Tribes may not have experience in administering environmental programs. Although lack of this experience will not preclude a Tribe from demonstrating the required capability, the presence of such experience will be of significant importance to the Agency. Some comments were received with respect to the proposed requirement that a Tribe describe the "technical and administrative capabilities of the staff to administer and manage an effective" Public Water System and/or Underground Injection Control program. The commenters stated that few Tribes have existing technical staff to operate such programs. Therefore, in response, the Agency is changing S J 142.72,142.76, 145.52. and 145.56 to require that a Tribe show that it has either the necessary staff or a viable plan to acquire the additional technical and administrative expertise. This presumes that while a Tribe may not yet possess all the necessary existing technical and adminstrative expertise to administer these programs at the outset, at a minimum, it must possess the administrative and technical expertise necessary to begin development of a Public Water System and/or Underground Injection Control program. The EPA. in its July 27 notice, proposed to require a Tribe to supply information on its accounting and procurement system. The purpose of this requirement is to make an applicant demonstrate its capability to track program funding. A description of this function may be included in the Tribe's discussion of previous managerial experience. This requirement is unchanged from the July 27 proposal. The EPA is requesting information on the Tribe's executive, legislative, and judicial functions to assure that the Tribe has the capability to: enact enforceable public water system and/or underground injection control regulations, administer and enforce effectively those regulations, and adjudicate alleged violations of those regulations. Some commenters felt that it is inappropriate for the Agency to expect Tribes to have separate executive, legislative, and judicial branches, as do State governments. The Agency is not requiring that Tribal governments have the same structure as State governments. On the other hand, the Agency believes it is appropriate to request Tribes to make a showing that their respective Tribal governments do, in fact, carry out the legislative, executive, and judicial functions necessary to administer effectively a Public Water System and/or Underground Injection Control program. The EPA's evaluation of the Tribe's capability will also consider the relationship between the existing or proposed Tribal agency which will assume primary enforcement authority and the owner/operator of the public water systems and/or the underground injection wells the agency would regulate. A common situation among Indian Tribes is that the Tribe is the owner/operator of the public water systems and/or the injection wells. Tribal ownership of the public water systems or underground injection wells could result in a conflict of interest if EPA delegated primary enforcement responsibility to the Tribe, since the Tribe would be regulating itself. Many comments were received indicating that Tribes believe they would not be in a conflict of interest situation if they owned and operated the public water systems and/or the underground injection wells they would be regulating under primacy. The preamble to the proposed rule indicated that Tribes would have to resolve the owner/operator conflict in order to receive primacy, but not for treatment as a State designation. The Agency still believes that the independence of the regulator and regulatee is necessary' to best assure effective and fair administration of these programs. However, the resolution of the matter is not meant to require the Tribes to divest themselves of these systems (i.e., sell the systems). As stated in the proposed regulations, a possible solution to the problem could be the development of a Tribal utility authority or an independent environmental commission. Failure to resolve the owner/operator conflict will not preclude a Tribe from being eligible for 'Treatment as a State", but is intended to signal Tribes at an early date about a potential bar to primacy that must be resolved. Resolution of the regulator/ regulatee issue relative to primacy will be evaluated on a case-by-case basis. One of the commenters pointed out that States are sometimes owners/ operators of public water systems over which they have primary enforcement responsibility. Examples the commenter pointed out include State universities, • prisons, and hospitals. The Agency is aware of this situation; however, the actual number of these types of systems in States is quite small in proportion to the total inventory. In addition. State infrastructures are typically such that the State agency operating the State public water systems is not the same State agency that has primary enforcement authority. This is in contrast to the typical situation exhibited by Indian Tribes which own and operate most or all of the public water systems on their reservations. The Agency considered in its July 27 proposal whether the eligibility and primary enforcement requirements would tend to exclude the smaller Tribes. To address the concerns of small Tribes, as reflected in several of the comments. EPA will consider applications by a group or consortium of Tribes within the same geographical area. However, the applicant must still meet all the eligibility requirements to be treated as a State, particularly the furisdictional requirement In response to a comment, EPA in this rule will include a definition of "Interstate Agency" in { 142.2 for the Public Water System program. A definition. ------- 37402 Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations "Interstate Agency" for the Underground Injection Control prop-em was previously proposed. As slated earlier in thic notice, many Tribes, particularly the smaller Tribe* may feel that it is not cost-effective or otherwise beneficial ta apply for primary enforcement responsibility because of finding and workload consideration. The Agency anticipates that, ki general, a certain mininum size (as determined by tribal populations, the size of the regulated community, and the number of entities regelated) will prove necessary for Tribe* to effectively and efficiently administer these programs. The EPA further anticipate* that, in general, the mailer Tribes win have difficulty obtaining the required expertise to adutini*ter effectively these programs. Consequently, the Agency encourages smaller Tribes to consider consortiums or intertribal agencies as ways to obtain the necessary expertise to administer these programs and to make the attainment of primacy cost- effective and beneficial to the Tribe. The Agency will consider and evaluate all applications fl receives, regardless of the applicant's size, on a case-by-case basis. 5. Process for Evaluating Application* Within thirty days after receipt of a Tribe's complete application for treatment as a State (which has all th« information required in 1142.76 and/or { 145.56), EPA wffl notify appropriate governmental entities (e.g.. neighboring Tribal and State governments) of the receipt of the application and the substance of the Tribe's ptrisdictkmal assertions. Each of the governmental entities will have thirty days after receipt of the notice to submit comments to EPA. Comments wifl be limited solely to the issue of the Tribe's assertion of jurisdiction. EPA will not consider comments directed to whether me Tribe meets EPA's other requirements for treatment as a State. If an Indian Tribe's asserted jurisdiction is subjected to a competing claim, the Administrator, after consultation with the Secretary of the Department of the Interior, or kis desigaee, and in consideratiOB of comments received, will evaluate the validity of a ay challenge to the Tribe's jurisdicttonal claim for the Public Water System and/or Underground injection Control programs and make a final decision on the Tribe's jurisdictional claim. If the Administrator concludes that the Tribe has not adequately demonstrated its jurisdiction with respect to an area in dispute, then Tribal primacy will be restricted accordingly. Any such determination by the Administrator is not a determination of a Tribe's general regulatory jurisdiction, but only jurisdiction relative to administration of-the Public Water System and/or Underground Injection Control programs. This procedure does not imply that States or Federal agencies bare veto power over Tribal applications for "treatment as a State." Rather, the procedure is simply intended to ensure that the Tribe has the necessary jurisdiction to administer a Public Water System and/or Underground Injection Control program. The EPA received several comments stating that the Agency should approve all applications for "treatment is a State" within a specified time period (i.e.. 90 or 120 days). Though the Agency agrees with the intent of the suggestions, it does not believe that it will be possible to approve or disapprove all appBcations far "treatment as a State" within a designated time frame. The Agency ruDy anticipates that there will be instances where the jurisdictional and capability determinations will require the Agency to go back to a Tribe for clarification or additional information. Likewise, the Agency's experience with State primacy applications for the Underground Injection Control and Pub&c Water System programs indicates that at times many meetings and communications between EPA and a State are necessary before all requirements are met The Agency believes tbet the same process of negotiation and communication with Tribes will be beneficial in ensuring that Tribes meet the "treatment as a State" criteria in an expeditious manner. If the Administrator determines that a Tribe meets all the requirements of Subpart H and/or Sobpart E • Tribe is then eligible to apply for a development grant and primary enforcement responsibility for the Public Water System aid/or Underground injection Control programs and associated funding to administer effective programs. One commenter suggested that applications for "treatment as a State" and for development grants occur at the same time. AB applicant should note that EPA will not award a development grant until the applicant is found eligible to be treated as a Slate. Though EPA sees ao reason to bar an applicant from applying for "treatment as a State" and for a development grant simultaneously, it cautions applicants to contact the appropriate EPA Regional Office to ensure that the requirements to be treated as a State and to receive a development grant are understood. C. Requirements for Primary Enforcement Responsibility 1. Tribal Primacy Requirements As stated above. Tribes which meet the requirements for treatment as States aw etigibke to apply for primary enforcement responsibility for these programs. The EPA hss promulgated regulations specifying requirements for primary enforcement responsibility for the Public Water System program (40 CFR Part 142) and the Underground Injection Control program (40 CFR Part 145). States and Indian Tribes treated as States mnsl meet the mimrmrm program requirements specified in these parts for EPA to grant primary enforcement responsibility. The EPA considered m its Joly 27 proposal which requirements currently applicable to States seeking primacy shook) apply to Indian Tribes. Section 1451{bKZ) of the Safe Drinking Water Act is instructive. It states that "[njoming in this Section shalf be construed to allow Indian Tribes to assume or maintain primary enforcement responsibility for public water systems or for underground injection control in a manner less protective of the health of persons than such responsibility may be assaawd or maintained by a State," In the Jury 27 Federal Register notice. EPA proposed that except for the laboratory certifies lion and the criminal enforcement responsibility requirements, as described below, all primary enforcement responabibtT requirements for Public Water System and/or Underground Injection Control programs applicable to States also apply to Indian Tribes. The Agency in this rule retains the same requirements far Indian Tribes as described in the July 27 proposal One of the commenter* expressed coacem about the ability of non-Indians generally to participate in the Tribal regulatory decision-making process. The EPA points out mat the requirements for primacy imclude the provisions for public participation by the affected population in the Tribal regulatory decision-making process (See 40 CFR Part 124). Specifically, the applicant must afford public participation in regulatory decisions pertaining to. but not limited to. ndemaking, permit hearings, and aquifer exemptions. This will ensure that the concerns of the non- Indian portion of the affected population are brought to the attention of the Tribal government It should also be noted that the Indian Civil Rights Act of 1968 (Pub. L. 90-284) affords non-Indians as well as Indians certain protections which are ------- Federal Register / Vol. 53. No. 186 / Monday. September 26. 1988 / Rules and Regulations 37403 similar in nature to "due process" or "equal protection" safeguards. Four commenters stated that the primary enforcement requirements proposed for Tribes were more stringent than those that States must meet. The EPA disagrees. As stated in the July 27 proposal. Tribes must meet the same requirements as States except in the areas of laboratory certification and criminal enforcement responsibility. The commenters may have misunderstood the Agency's July 27 proposal by confusing the requirements Tribes must meet for "treatment as a State" with the primary enforcement responsibility requirements. These two sets of requirements are separate and distinct. Section 1451{b)(l) of the Act effectively requires the Agency to develop regulations that enable Tribes to be treated as States. The Agency has done this by establishing the criteria Tribes must meet to be treated as States under subparts H and E. The Agency fully intends that once Tribes do meet the regulatory requirements for "treatment as a State" that they will be treated in the same manner as States except where noted in this rule (i.e., grant match requirements, developmental grant time frames, primary enforcement responsibility requirements, etc.). Several commenters stated that EPA should be flexible in the primary enforcement requirements that Tribes must meet. They stated that some Tribes may not be able to meet all the requirements and that EPA should consider a waiver of some primacy requirements to enable the applicant to receive primacy. The EPA believes that additional flexibility 'oevor.d waiver of the criminal enforcement and laboratory' certification requirements would be inappropriate and might be less protective of the public health and the environment. Two commenters suggested that Indian Tribes should be able to apply for "partial primacy" for certain parts of the program(s). The EPA's policy for the Public Water System and Underground Injection Control programs is to delegate primary enforcement responsibility for all program activities and not allow partial program delegations. Consequently. when an Indian Tribe or State applies for Public Water Supply primacy under section 1413 of the Safe Drinking Water Act. it must assume all the requirements found in § 142.10. Likewise, when an Indian Tribe applies for Underground Injection Control primacy programs under sections 1422 and/or 1425 of the Safe Drinking Water Act, it must assume all the requirements found in {§ 145.11. 145.12.145.13 (as amended for Indian Tribes), and 145.14. However, a Tribe may apply for primacy over a particular class of injection wells without applying for primacy over other classes. 2. Primacy Requirements Not Applicable to Tribes The Agency has determined that it is inappropriate to require Tribes to meet the primary enforcement responsibility requirements found in { 142.10(b)(3), development of a laboratory certification program, and 1145.13 pertaining to criminal enforcement jurisdiction. Section 142.10(b][3) requires a State seeking primacy for a Public Water System program to establish and maintain a State program for the certification of laboratories conducting analytical measurements of drinking water contaminants. To comply with the statute, EPA is amending { 142.10(b)(3) so that an Indian Tribe will not have to establish a separate or independent laboratory certification program in order to receive primary enforcement responsibility. If a Tribe chooses to avail itself of the laboratory certification waiver provision, EPA will require each Tribe to demonstrate that It has access to a State or EPA certified laboratory to conduct all required analyses through formal agreements or other arrangements. The EPA received four comments on this issue, each supporting the laboratory certification waiver. The commenters stated that the laboratory certification requirements could bar small tribes from seeking primacy and that, in general, most Tribes would not be able to develop a laboratory certification program. The EPA agrees. The waiver in i 142.10(b)(3) is promulgated as proposed. Section 145.13 of the Underground Injection Control regulations requires that a State have criminal enforcement authority to obtain primacy. Likewise, { 142.10(b)(vi) requires that a State have authority to assess civil or criminal penalties to obtain primacy for Public Water System programs. EPA interprets section 1451 to mean that criminal enforcement jurisdiction shall not be a requirement for granting primacy to Indian Tribes. Therefore, this rule amends { 145.13 to state that Tribes will not be required to possess and/or exercise criminal enforcement authority as a condition of obtaining primary enforcement responsibility. Instead. { 145.13 requires Tribes to develop a memorandum of agreement with EPA to refer criminal enforcement matters to the Administrator in an appropriate and timely manner. EPA is not making a similar change to § 142.10, since for Public Water System primacy a Tribe need not have criminal enforcement authority. All commenters favored this change though two commenters expressed concerns about how this process will work. One commenter voiced the • concern that care should be taken to ensure that specific language is developed detailing conditions under which a Tribe will refer criminal enforcement cases to EPA. The EPA shares this concern and will require that all proposed memoranda of agreement be submitted simultaneously with the primary enforcement responsibility application to ensure that criminal enforcement cases are referred in a timely manner. Another commenter wrote that the criminal enforcement referrals in { 145.13 should not bar or remove Tribal courts from the enforcement process. The EPA agrees and believes that the process outlined in this rule will not interfere with authorized Tribal enforcement activities. Tribes retain their own authority to pursue criminal enforcement cases. The EPA points out that a Tribe's criminal enforcement jurisdiction does not extend to non-Indians unless Congress has explicitly so provided by treaty or statute. The procedure outlined in ( 145.13 does not diminish Tribal criminal enforcement authority. 5. Administrative Options Available to Tribes Several commenters urged that these regulations should allow Indian Tribes flexibility to meet the primary enforcement requirements. For example. several of the comments stated that Tribes should be able to meet program requirements through contracts, grants, or memoranda of agreement with States or the Indian Health Service. The EPA agrees that there are various administrative and organizational options available to Tribes in implementing the Public Water System and Underground Injection Control programs. However, the Agency cautions that not all program functions can be accomplished through a contract grant, or a memorandum of agreement For example, EPA will not approve delegation of the enforcement function through a contract or memorandum of agreement because that would be inconsistent with EPA's primacy policies. For activities such as plan review and inspections, the Tribe may consider other administrative arrangements. Tribes should be aware that EPA will require the Tribe to have the basic "in-house" capabilities to attain and administer Public Water System and/or Underground Injection ------- 37404 Federal Register / Vol. 53, No. 186 / Monday. September 26. 1988 / Rules and Regulations Control programs. Administrative arrangements which result in "paper" or "shell" programs will be unacceptable to the Agency. Three commentere wrote that EPA should establish "core primacy requirements" for all EPA programs so Tribes will only have to apply a single time for ell Agency programs. The EPA believes that this is administratively infeasible since Agency programs have different statutory bases and consequently different program require meats. 4. Primacy Technical Assistance Two ccmzoeBters stated that EPA has a statutory obligation under section 1442 of the Rafp Drinkiag Water Act to assist Tribes to obtain "regulatory primacy" by providing technical assistance. To the extent that funds are available for technical assistance to Tribes under section 1442. the EPA win give eligible Tribes (i.e.. Tribes which have met the "treatment as State" criteria] priority to help them obtain "regulatory primacy" for the Public Water System and the Underground Injection Control programs. After addressing the needs of eligible Tribes, the Agency will consider providing Tribes which do not meet the requirements for "treatment as a State" with technical assistance. Regardless of whether funds are available, it is the responsibility of the Tribes to gain the basic capabilities to meet the "treatment as a State" criteria. To ensure that eligible Tribes receive adequate technical assistance, the Agency, in fiscal year 1968 has allocated two additional staff positions in the Public Water System Program to provide technical and programmatic assistance to Tribes which are developing or applying for primary enforcement responsibility programs. In subsequent years the Agency wifl reevahjate its Public Water System and Underground Injection Control program staffing needs in Kght of the applications received. D. Program Grants The requirements for program wants to States are found at 40 CFR Part 35. Subpart A. This nil* addresses, grant eligibility, initial reserve sr set-aside fund* for ose on Indian buds, grant- match requirements, grant reallocations, and grants to develop Indian Public Water System and/or Underground injection Control programs. In both the Public Water System and Underground Injection Control programs. EPA allocates available funds or. the bccis cf 2 forwjl? f-nnffres* appropriates a fixed amount of funds for ihese programs each yea;. The amount appropriated in any year may not equal the amount desired by eligible States or Tribes treated as States. As discussed later in this notice, this situation often accounts forthe facTthat Stales actually contribute more to the program costs than the required minimum of 2S°-i. It is important to note that the dtr.ial of a g*an*. application submitted by ar. Indian Tribe treated as a State or a State is not a denial of a right or an entitlement. 1. Grant Eligibility This rule expands the list of jurisdictions eligible to receive Public Water System and/or Underground Injection Control grants to include Indian Tribes meeting the requirements of Subparts H and/or E (Treatment of Indian Tribes 33 States). It implements section 1451 of the Safe Drinking Water Act which authorizes EPA to make grant and contract assistance available to eligible Indian Tribes. One commenter stated that there is no legal justification for requiring that Indian Tribes meet the criteria for "treatment as a State" in order to apply lor program grants. However. EPA does not interpret sections 1443 and 1451 as allowing the issuance of a section 1443 grant to a Tribe before it rs designated as a State. 2. Reserves for Indian Lands Beginning in Fiscal Year 1988 (October l.}988) EPA annually will reserve up to 3% and 5% respectively of the Public Water System and Underground Water Source grant funds for development or primacy grants to eligible Tribes and to EPA Regions for direct implementation purposes on Indian lands. It is EPA's intent that once the reserve amounts are established each year that these funds will only be used for development or primacy grants by Indian Tribes or by EPA Regions for use on Indian lands. EPA intends to use these funds for Indian progress even if tbe February 1 deadline passes and the funds are reallocated. This deadline is further discussed in section foor which addresses reailocabon. EPA intends to make development or primacy grants available to eligible Tribes according to an equitable formula. The Agency is now considering several formula options. A possible option includes applying to the Tribes the same formula now used for States. The current formula for tbe PWS program assigns 10% of the available funds to land area. 30% to population. 48% to community water systems and 12% to non-community water systems. If this option is used, a particular Tribe's grant would be determined by adding Us percentage of the national fnriiqp total for each factor. For the U1C program, the assigned weights are 10% to land area. 10% to population. 14V to Class 1 wells. 41*. to Class D wells. 10% to Class 111 wells. 4% to Class IV wells and 11% to Class V weils. Again, individual grants are based on that recipient's percuitax'- of the national total for each factor. While EPA's intention is to allocate available grant hinds by formula at the beginning of each fiscal year, in the first few years alter primacy becomes possible for Indian Tribes it will be very difficult to anticipate tbe mnber of Tribes that may become eligible for grants during the year. Therefore, initially EPA will reserve or set sufficient grant funds aside K assure that funds will be available to -aake grants to Tribes that qualify. This reserve or set-aside will also cover EPA's costs of implementing the two programs on Indian lands. In the July 27 Federal Register notice. EPA proposed to limit the reserve to not more than 3% of Public Water System and 5% of the Underground Injection Control program grants. Many commenters stated that the proposed set •sides (or resenres) of up to 3% and 5%, respectively, were inadequate. A number of commenters stated that the reserves should be minimum amounts rather than maximum amounts. Five commenters stated the proposed set asides were too great and would adversely impact existing State programs. The EPA believes that the reserves for Indian lands as proposed on July 27 are adequate and at the same time will not have an adverse effect on existing State programs. Historically, EPA has spent about 1% of the Public Water System and just over 2.5% of the Underground Injection Control program grants for its irnpJementatton of these programs on Indian lands. Tbe proposed limits of 3% and 5% represent an increase over the historical levels and recognize that Indian Tribes may need addrbonal resources to develop and administer primacy programs. In the hily 27 proposal, EPA estimated that 10-12 Tribes may meet the requirements for primacy. EPA has further refined its estimates based upon Regional data. EPA believes that 25 Tri'ucS may apply for sr.d receive "treatment as a State" designation within the next three years. These Tribes would thus be eligible to apply for financial assistance. However, the Agency still anticipates that orriy 10-12 of these Tribes will apply for and receive primacy within the next three • years. uiCiudcd i£ the rscord for *h'e rulp is an analysis of bow the 25 Tribe* estimated to IP.ZPJVS "treetmsnt as s ------- Federal Register / Vol. 53, No. 186/Monday. September 26, 1988 / Rules and Regulations 37405 State" within the next three years and the 10-12 Tribes estimated to receive primacy within the ntxt three years correlate with the 3% and 5% limits selected as the Public Water System and Underground Injection Control reserves. In l;gh! of the foregoing estimate and additional analysis the Agency conducted, the EPA believes that the reserves for Indian Tribes of "up to 3"i" a::d "up to 5%" are sufficient. The Agency intends to reevaluate the funding levels within three years (or sooner if necessary) to ensure their adequacy. EPA does not anticipate that the full 3% and 5% reserves will be fully utilized by Indian Tribes unless and until each Indian Tribe which might qualify for a grant has applied for and received financiul assistance for these programs. EPA does not anticipate, at least initially, that all potentially qualified Indian Tribes will apply for these programs. The EPA believes that the Public Water System and Underground Injection Control reserves of "up to" 3% and 5% for Indian Tribes will not adversely affect existing State programs. The EPA'notes that the Public Water System and Underground Injection Control grants were increased by S5.000.000 and S3.000.00a respectively. in Fiscal Year 1988 over the Fiscal Year 1986 levels. Moreover, given the relatively small number of Tribes which are likely to apply for and receive grants and the small amount of funds which may be reserved compared to the total State allocation, EPA believes that the reserves will not adversely affect existing State programs. Consequently. the reserves established for Indian Tribes are unchanged from the July 27 proposal. 3. Grant Matching Requirements In the July 27 notice, EPA proposed that Tribes meet a 25 percent match requirement In addition, the Agency noted that Tribes could use in-kind contributions and Federal matching funds authorized by statute as the Tribal match. The EPA also proposed reducing the Tribal match to ten percent in the event that the Tribe does not have adequate funds to meet the 25 percent match requirement. Several comments were received with respect to the proposed matching requirements. Several commenters urged the Agency to either eliminate the matching requirement for Tribes or to reduce the current 25 percent minimum applicable to States to ten percent or less. These commenters noted that many Indian Tribes lack a revenue base and thus lack the ability to fund these programs. Other comrr.enters pointed out that States" fre'querffly match Federal grant funds beyond the minimum requirements. This observation is consistent with the study conducted by thr Association of State Drinking Water Administrators as reported in its recent draft report entitled "A Survey of Resource Needs of State Drinking Water Programs" of April 16,1987. The Association conducted an analysis of the actual percentage of program costs contributed by EPA and the primacy States in the Public Water System program. This analysis show* that, on average, EPA contributes 47% of the total program costs with States contributing 53%. Moreover. EPA notes that the 1986 Safe Drinking Water Act Amendments authorizing the Aqency to "treat Tribes as States" also imposed additional requirements on States and Indian Tribes to adopt filtration/ disinfection regulations, a lead ban. unregulated contaminant regulations and an expanded list of regulated contaminants. Administration of these new requirements will require that Indian Tribes and States obtain additional resources. After considering the comments, the Agency believes that a matching requirement is appropriate because such a requirement ensures from the outset • that Tribes have a financial stake in developing and operating viable Public Water System and Underground Injection Control programs. The Agency acknowledges, however, that many Indian Tribes do not have the revenue base needed to meet the 25% matching requirement. The provisions for a reduction of the required matching funds to 10% address this situation. Further. Tribes which qualify for a 10% reduction should be able to provide the requisite match through in-kind contributions and Federal funds authorized by statute to be used as a match for Public Water System and Underground Injection Control programs. Accordingly, the matching requirements are unchanged from the proposed rule. It is important for Tribes to realize that regardless of the required matching level, the actual percentage of program costs that may be incurred by a given Tribe in the course of adequately administering these programs could easily exceed the 25% matching requirement 4. Reallocation of Reserve Funds As stated above, EPA intends to develop a formula to determine the amount of funds available each year to eligible recipients and EPA Regions. Thus, once the number of eligible Tribes stabilizes, there should be no unused funds and no need for reallocation since EPA will allocate funds for its own implementation needs and each eligible recipient at the beginning of each fiscal year. Until that point of stability is reached. however, EPA will reserve amounts. based on its best estimate of ETA implementation needs, eligible Tribes and likely applicants. Any funds allocated to a Region from this reserve which are not awarded to specific Indian Tribes by February 1 of each fiscal year (four months after the fiscal year begins) may be subject to reallocation to other Regions. Regions which receive reallocated funds may use them for supplemental awards to eligible Indian Tribes or for direct implementation activities on Indian lands. As stated earlier, once EPA reserves these funds, it is the Agency's intent that Indian reserve funds will be used either by EPA Regions for activities on Indian lands or by eligible Indian Tribes. EPA's decision on the actual timing of reallocation (whether it is February l or later in the fiscal year) will depend upon a number of factors including how long the current fiscal year's appropriation has been available to Indian Tribes. A number of comments were received pertaining to the reallocation of funds. Some commenters stated that unallocated reserves for Indian Tribes should be reallocated solely to States, since initially the program grant funds were established only for States. Conversely, numerous comments were received that unallocated reserves should be solely reallocated to Tribes or that the Agency should show a preference for Indian Tribes in the reallocation process. Since the Agency intends to reserve funds each year based on its best estimate of what will actually be used, the amount reserved will, in all likelihood, be less than the 3% and 5% limits. Thus, the Agency does not believe that impacts on State programs will be significant, nor that a preference for States in the reallocation process is appropriate. Rather, the Agency believes that the objectives of the drinking water programs will be better served if. as stated above, the unused funds are reallocated for use on Indian lands. Three commenters suggested that ET'A should extend the reallocation date beyond the February 1 deadline. One commenter suggested May 1 as an appropriate date for Fiscal Year 1988. Except for Fiscal Year 1988 when the promulgation of this rule will delay Tribal applications, EPA believes ------- 37406 Federal Register / Vol. 53. No. 186 / Monday. September 26, 1988 / Rules and Regulations February 1 is as late in the Fiscal Year as funds can be withheld and still enable the Agency and eligible Indian Tribes to effectively utilize these funds during the remainder of the Fiscal Year. EPA notes that the reallocation of State funds typically occurs around December 1. Fiscal year 1986 represents a special case for the reallocation of these reserve funds. In October 1987. the EPA allocated $334,500 for the Public Water System program and $339.000 for the Underground Injection Control program to its Regional Offices for use on Indian lands in Fiscal Year 1988. In addition, the Agency reserved $669.000 and $236.300 respectively for the Public Water System and Underground Injection Control programs for grants to eligible Indian Tribes. However, with the delay in promulgating this rule, the Agency decided in July to reallocate the remaining $236,300 in U1C funds to EPA Regions for grants to primacy States and for direct implementation in States and Indian lands. Within the PWS program, the Agency decided to reallocate $494,000 of the $669,000 amount to EPA Regions for additional grants to States or for direct implementation purposes in States and Indian lands. Until the Fiscal Year 1989 appropriations become available, EPA will continue to reserve the remaining $175,000 of Fiscal Year 1988 Public Water System funds for grants to eligible Indian Tribes and for direct implementation on Indian lands. This amount will assure that there is no interruption in our ability to make grants to.all Tribes that may qualify in the near term. 5. Development Grant Time Frames and Grants The next issue is how much time should be allowed to eligible Tribes to develop Public Water System and Underground Injection Control programs with EPA financial assistance. The proposed rule allowed for two years for the Public Water System and three years for the Underground Injection Control program. A number of commenters pointed out that many Tribes do not have the existing staff or resources to develop a Public Water SyctPTO program >n 2 years, or an Underground Injection Control program in 3 years. In addition, several commenters felt that the lack of Agency funding in past years has contributed to Tribal inability to establish the necessary staff and administrative and technical expertise to apply for Public Water System and/or Underground Injection Control programs. Most commenters proposed that there be no time limitations on Indian Tribes or that there be a provision for waiver from any time frames the Agency establishes, if a Tribe is making a good faith effort to develop a prograriTand is making reasonable progress in this endeavor. Other commenters proposed that, at a minimum, the time frames should be lengthened—for example, to 4 and 5 years, respectively. In order to make the best use of the limited amount of available grant funds the Agency believes that Indian Tribes receiving Section 1443 (a) and (b) grants should be required to develop primacy within a definite time period The Agency recognizes that Tribes generally do not possess the resources States have to develop Public Water System and Underground Injection Control programs. After careful consideration of the comments, it is the Agency's best judgment that it should extend the time frames for the development of programs to three years for the Public Water System program and four years for the Underground Injection Control program but with no provision for waiver from these time frames. Tribes which do not achieve primacy within the three and/or four year periods of grant eligibility would be ineligible for further grants until primacy is achieved. The Agency believes that establishing longer time frames, beyond three and/or four years is not warranted in that meeting "treatment as a State" criteria will mean that a Tribe has a basic level of capability. Consequently, three years and four years should be adequate for developing the respective programs. The EPA believes that some Tribes may require less than three or four years to develop their program. EPA wishes to clarify, however, that Tribes may apply for these programs at any time. Tribes are not required to apply for these programs within three or four years after promulgation of this rule. Further, Tribes are not required to develop their programs within three and/or four consecutive years. For example, after developing a Public Water System program for two years with EPA's financial assistance, a Tribe could then opt to work on program development without EPA financial assistance for a year. Thereafter, the Tribe would still have one more year to develop a program with EPA's financial assistance. Tribes which have received development grants for three years and four years without achieving primacy may continue to develop their programs beyond the three and four-year time limits for the Public Water System and Underground Injection Control programs, respectively, without EPA financial assistance. A number of comments were received stating that many Tribes may not have the technical staff in place at the time of the development grant application. It is the intent of the Agency to be flexible and recognize that some Tribes may not have each required element in place. such as all the required technical staff needed to administer a Public Water System or Underground Injection Control program at the time the Tribe applies for its initial development grant. Indeed, the purpose of development grants is to ensure that the basic organizational structure is in place which can then be "fine tuned" to meet the primacy requirements. The EPA will evaluate each Tribal applicant's capability to achieve primacy within the three-year development period for the Public Water System program or four-year development period for the Underground Injection Control Program by reviewing the development grant application that the Tribe submits. With the application. EPA will require that the Tribe submit a development plan specifying how it will develop its Public Water System and/or Underground Injection Control program(s). An applicant will not be awarded additional grants unless it can demonstrate reasonable progress as measured against its development plan commitment during each grant period. As stated earlier. Tribes which fail to obtain primacy within the respective three or four-year grant eligibility development periods will be ineligible to receive further grants until primacy is obtained. It was suggested by some commenters that the Agency recognize the possibility of Tribes entering into memoranda of agreement with Regional Offices. States. or other Tribes in order to develop primacy programs in an effective manner. The Agency agrees that in many cases such agreements may be beneficial to all parties involved. It should be recognized, however, that the Tribe initiating the agreement is expected to take the lead in assuring all n*r\nT-rt*v* *>a3r*'">n3^ilit!C£ 9r° *n?t Anv such agreements should be entered into with the understanding that the initiating Tribe is expected to assume full programmatic responsibility within a definite period of time. Examples of such agreements could include an inspection program such as conducting sanitary surveys, data entry for purposes of tracking aainpiiiig requirements, or laboratory analyses. ------- Federal Register / Vol. 53. No. 166 / Monday. September 26. 1988 / Rules and Regulation* 37407 E. Other Issues 1. Technical Assistance Several commenters pointed out that the Agency in its July 27,1987 proposal made no mention of technical assistance funds authorized under section 1442[g) of the Act The 1986 Amendments authorized an appropriation of $10,000.000 for each of the Fiscal Years 1987 through 1991 for technical assistance. Subsection (g) states. In part: "Not less than the greater of (1) 3 percent of the the amounts appropriated * * * or (2) $260,000 shall be utilized for technical assistance to public water systems owned or operated by Indian Tribes." To date no funds have been appropriated under section 1442(g) of the Act. The Agency further notes that section 1442(g) specifies that technical assistance funds are to be used for matters such as operator certification, circuit rider programs, and technical assistance visits to community water systems. The Agency interprets section 1442{g) to mean that technical assistance funds can be made available to water systems. Individual Indian public water systems would be eligible to receive technical assistance in the form of circuit rider programs, training. and preliminary engineering studies if funds are subsequently appropriated. Several commenters mentioned that the Agency has not historically provided technical assistance to Tribes. The Agency disagrees. Each EPA Regional Office which has primary enforcement responsibility for Indian reservations annually receives a direct implementation budget Historically, the Agency's direct implementation budget for Indian lands has been approximately $300.000 for the Public Water System program and 5250.000 for the Underground Infection Control program. In addition, approximately eleven and twenty full-rime staff are currently assigned to administer the Public Water System and Underground Injection Control programs on Indian land* respectively. Because the Regional Offices are the primary enforcement agents for programs on Indian lands, each office uses its direct implementation budget to implement requirements of the National Primary Drinking Water and/or Underground Injection Control regulations on Indian lands. In addition to tracking monitoring and reporting requirements. Regional staff also provide on-site technical assistance. Technical assistance provided by EPA Regional Offices is often coordinated with the Indian Health Service (IMS). Many of the Regions fund "circuit rider" programs that are for the purpose of providing technical assistance to public water system operators on reservations. The circuit riders have a working knowledge of small rural systems such as those found on reservations. In addition to technical assistance, the circuit rider programs (often in conjunction with the IHS) provide training to the Indian operators that can lead to certification. The EPA believes that certified operators, in turn, can contribute greatly (in an indirect way) to a Tribe's in-house technical expertise. Many oommenten asserted that technical assistance and technical assistance funds should be used for construction of new community water systems and/or upgrading existing facilities. With the limited exception of special demonstration projects authorized by section 1444, (for which appropriations are not currently available], there is no statutory authority within the Safe Drinking Water Act for the Agency to fund either the construction of new facilities or the upgrading of existing facilities. The Indian Health Service, the Department of Housing and Urban Development, the Bureau of Indian Affairs, or an individual Indian Tribe each have the requisite authority to construct and/or maintain water systems. 2. Alaska Native Villages In its July 27.1987 proposal EPA addressed the question of whether Alaska Native Villages meet the definition of an "Indian Tribe" contained in section 1401 of the Safe Drinking Water Act The EPA noted that the SDWA definition of "Indian Tribe" does not mention Alaska Native Villages. The EPA stated in its proposal that it believed the legislative history of the Act indicated that Congress intended to exclude Alaska Native Villages from coverage under the "Indian Tribes" amendment (section 1451). Support for this interpretation was derived from the Senate definition of "Indian tribal organization" in S. 124 (i.e., the bill containing the Safe Drinking Water Act amendments that the Senate originally passed) which specifically included Alaska Native Villages. However, since Congress adopted the House definition of "Indian Tribe" (which did not include Alaska Native Villages), EPA concluded that Congress intended to exclude Alaska Native Villages from the definition of "Indian Tribe." The Agency also noted that in Section 101 of the Superfund Amendments and Reauthorization Act of 1986 (SARA). Congress specifically referred to "Alaska Native Villages" in the definition of 'Indian Tribe". The Safe Drinking Water Act amendments and SARA were both enacted by the same session of Congress. This contrast in definitions constituted additional evidence of Congressional intent to exclude Alaska Native Villages from the scppe of the Safe Drinking Water Act amendments. EPA received two comments during the formal comment period, and additional comments after the formal comment period EPA also met with representatives of Alaska Native Villages after the formal comment period had dosed. All of the comments EPA received during and after the formal comment period disagreed with EPA's conclusion that the legislative history shows Congressional intent to make Alaska Native Villages ineligible to apply for "treatment as a State" for the Underground Injection Control and Public Water System programs. The commenters further asserted that Alaska Native Villages clearly fall within the Safe Drinking Water Act's definition of "Indian Tribe." One commenter noted that major Indian legislation has applied to Alaska Native Villages. EPA notes, however, that whenever Congress has desired to have the term "Indian Tribe" in major Indian legislation encompass Alaska Native Villages it specifically has included them within the respective statutory definitions of "Indian Tribe" (e.g., Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 etseq.}. Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.}, and the Indian Child Welfare Act (25 U.S.C 1901 etseq.)). Based on the legislative history of the Act, the comparisons with SARA, and the specific references to Alaska Native Villages in the definitions of the term "Indian Tribe" contained in major Indian legislation, the Agency has concluded that the SDWA definition of "Indian Tribe" does not include Alaska Native Villages. Consequently, under this rule, Alaska Native Villages will not be eligible to apply for: treatment as a State; primary enforcement responsibility for the Public Water System and Underground Injection Control programs: or financial assistance available to States and Indian Tribes treated as States. 3. Trust Responsibility One commenter stated that "[p]erhaps the greatest flaw in these proposed regulations is EPA's failure to consider its trust responsibility and develop an affirmative action program to assist Tribes in developing the capability to regulate programs under SDWA." ------- 37408 Federal Register / Vol. S3, No. 186 / Monday. September 26, 1988 / Rules and Regulations Several other commentera echoed this viewpoint. Both the Public Water System program and the Underground Injection Control program are regulatory in nature and designed to protect the public health and overall environmental quality for the benefit of the general public, including Indian Tribes. Specifically, these are not programs applicable solely to Indians because of their status as Indians. Instead, these programs were created to ensure acceptable water quality to all consumers (Indian and non-Indian) and also ensure that underground injection is regulated in an environmentally acceptable manner through promulgated standards. The purpose of section 1451 of the Safe Drinking Water Act is to authorize the Agency (under certain conditions) to treat Indian Tribes as States and subsequently to allow eligible Indian Tribes to apply for primacy (and the corresponding regulatory responsibilities) under either the Public Water System or the Underground Injection Control provisions. Those Indian Tribes not found eligible for treatment as States, or opting not to apply for treatment as States, are to continue to benefit from existing programs through Regional direct implementation. In sum, the purpose of the 1986 Amendments is jo allow eligible Indian Tribes to participate in the administration of these general regulatory programs. The Agency does not believe that the 1986 Amendments mandate establishment of an "affirmative action program" to assist Indian Tribes, in general, to meet the criteria for "treatment as a State." The scope of EPA's "responsibility." however characterized, is defined by the language of the 1986 Amendments and the provisions of the Safe Drinking Water Act. The EPA believes that its statutory responsibility under the 1986 Amendments is to promulgate regulatory requirements which afford eligible Indian Tribes a fair and reasonable opportunity to attain primacy for Public Water System and/or Underground Injection Control programs and. at the same time, ensure that Tribes assume and maintain primacy in a manner which is "no less protective of the public health than such responsibility may be assumed or maintained by a State." These regulations 5r6 n^incifitpnt with that mandate and with EPA's Indian P_!:_.. c._.-_„_. Wiawjr W»tJ lw»**^a*k. IV. Other Regulatory Requirements A. Compliance With Executive Order J22S1 . _ Executive Order 12291 (46 FR13193. February 9.1981) requires that a regulatory agency determine whether a new regulation will be "major" and. if so. that a regulatory impact analysis be conducted. A major rule is defined as a regulation which is likely to result in: (1) An annual effect on the economy of $100 million or more; (2) A major increase in costs or prices for consumers; individual industries; Federal. State, end local government agencies; or geographic regions; or (3) Significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. - Since this rule does not meet the definition of a major regulation, the Agency has not conducted a regulatory impact analysis. The proposed rule was submitted to the Office of Management and Budget (OMB) for review as required by Executive Order 12291. Any comments from OMB to EPA and any response to these comments will be available for viewing at the Environmental Protection Agency, Room 1003 East Tower, 401 M Street SW., Washington, DC 20460. B. Paperwork Reduction Act The information collection requirements ifi this final rule was approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has been assigned control numbers 2040-0090 (Public Water System) and 2040-0042 (Underground Injection Control). C. Regulatory Flexibility Act The Regulatory Flexibility Act requires that Federal agencies prepare regulatory flexibility analyses assessing the impacts of proposed rules on entities such as small businesses, small organizations, and small governmental jurisdictions. Such analysis is not required, however, when the head of the agency certifies ilioi a Pule will not hcvc a significant economic impact on a substantial number of small entities. The EPA considers the information required by this rule to be the minimum necessary to administer effectively the Indian provisions of the 1986 Safe Drinking Water Act amendments. Any additional economic impact on the public resulting frcrr. reporting sr.d recordkeeping requirements that Tribes odop; as psr; of a Public V.'c'.cr Syciem and/or Underground Injection Control program(s) is expected to be negligible since owners/opera tors of public water systems and/or underground injection wells are already reporting to EPA. Awarding primacy to an Indian Tribe will not change the reporting or regulatory requirements, but only the government to which the owner/ operator reports. Accordingly, I certify that these regulations, when promulgated, will not have a substantial impact on a number of small entities. List of Subjects ID 40 CFR Parts 35,124, 141,142,143,144,145, and 146 Administrative practices and procedures, Air pollution control. Chemicals, Confidential business information, Grant programs— environmental protection. Hazardous materials, Indians, Intergovernmental relations. Penalties, Pesticides and pests, Radiation protection. Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control, Water supply. Dated: September 12,1988. Lac M. Thomas, Administrator. Therefore, for the reasons set forth in the preamble. 40 CFR Chapter I is amended as follows: PART 35—STATE AND LOCAL ASSISTANCE Subpart A—Financial Assistance tor Continuing Environmental Programs 1. The authority citation for Subpart A is amended to read: Authority: Sees. 105 and 301(a) of the Clean Air Act. as amended (42 U.S.C. 7405 and 7801(a)); sees. 106. 205(g), 205(j). 208 and 501 (a) of the Clean Water Act. as amended (33 U.S.C. 1256.1285(g). 1285(j). 1288. and 1361(a)); sees. 1443,1450. and 1451 of the Safe Drinking Water Act (42 U.S.C. 300J-2 and 300J-9): sees. 2002(a) and 3011 of the Solid Waste Disposal Act. ae amended by the Resource Conservation and Recover)' Act of 1876 (42 U.S.C. 6912(a). 6931. 6947. and 6949): and sees. 4.23. and 25(a) of the Federal Insecticide. Fungicide, and Rodenticide Act. as amended (7 U.S.C. 136(b). 136(u). and 136w(a)). 2. Seciicr. :5.1C5 \z a~.cr.dcd tc add. :n alphabetical order, new definitions for "Indian Tribe" and "State" to read as follows: §35.105 Definition*. • • 0 * • "Indian Tribe" means, within the context of the Public Water System Super"*"'"" ""d Underground Water Source Protection grants, any Indian Tribe hsvln^ a Federally recognized ------- Federal Register / Vol. 53. No. 186 / Monday. September 26. 1938 / Rules and Regulations 37409 governing body carrying out substantial governmental duties and powers over a defined area. • • • • • "State" means, within the context of the Public Water System Supervision and Underground Water Source Protection grants, one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands. Guam, American Samoa, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, or an Indian Tribe treated as a State. • • • • • 3. Section 35.115 (e) and (f) are revised to read as follows: §35.115 State allotments and reserves. « • • « • (e) Public Water System Supervision allotment (Safe Drinking Water Act, section 1443{a)): Population, geographic area, numbers of community and noncommunity water systems and other relevant factors. All jurisdictions except American Samoa, Guam, the Northern Mariana Islands, the Virgin Islands or an individual Indian Tribe treated as a State shall be allotted at least one percent. Up to three percent of the Public Water System Supervision funds shall be reserved each year for use on Indian lands. (f) Underground Water Source. Protection allotment (Safe Drinking Water Act, section 1443(b)): Population. geographic area, extent of underground injection practices, and other relevant ' factors. L'p to five percent of the Underground Water Source Protection funds shall be reserved each year for >ise on Indian lands. • • • • • 4. Section 35.155 is amended by adding a new paragraph (c) to read as follows: § 35.155 Realiocation. • • • • • (c) Public Water System Supervision and Underground Water Source Protection funds reserved for use on Indian lands which are not awarded to specific Indian Tribes by February 1 of a fiscal year, may be reallocated by the Administrator for supplementary awards to Indian Tribes treated as States or to EPA Regions for purposes of direct implementation on Indian lands. 5. Section 35.400 is revised to read as follows: §35.400 Purpose. Sections 1443(a) and 1451(a](3) of the Safe Drinking Water Act authorize assistance to States and Indian Tribes treated as States for Public Water System Supervision Programs. Associated program regulations are found in 40 CFR Parts 141.142, and 143. 6. Section~35.405 is amended by designating existing text as paragraph (a) and adding a new paragraph (b) to read as follows: § 35.405 Maximum Federal share. * » * * * (b) The Regional Administrator may increase the 75 percent maximum Federal share for an Indian Tribe based upon application and demonstration by the Tribe that it does not have adequate funds (including Federal funds authorized by statute to be used for matching purposes), Tribal funds, or in- kind contributions to meet the required 25 percent Tribal match. In no case shall the Federal share be greater than 90 percent. 7. Section 35.410 is amended by adding a new paragraph (c) to read as follows: §35.410 Limitations. • * • * • (c) The limitations in paragraphs (a) and (b), of this section do not apply to funds allotted to Indian Tribes. B. Part 35 is amended by adding a new § 35.415 to read as follows: §35.415 Indian Tribes. (a) The Regional Administrator will not award initial section 1443(a) funds to an Indian Tribe unless: (1J EPA has determined that the Indian Tribe meets the requirements of 40 CFR Part 142. Subpart H—Treatment of Indian Tribes as States; and (2] The applicant has a Public Water System Supervision Program or agrees to establish one within three years of the initial award and agrees to assume primary enforcement responsibility within this period. (b) The Regional Administrator shall not give a continuation award to any Indian Tribe unless the Tribe can demonstrate reasonable progress towards assuming primary enforcement responsibility within the three-year period. (c) After the three-year period expires. the Regional Administrator shall not award section 1443(a) funds to an Indian Tribe unless the Tribe has assumed primary enforcement responsibility. 9. Section 35.450 is revised to read as follows: §35.450 Purpose. Section 1443(b) of the Safe Drinking Water Act authorizes assistance to States and Indian Tribes treated as States for Underground Water Source Protection Programs. Associated program regulations are found in 40 CFR Parts 124,144,145.146, and 147. 10. Section 35.455 is amended by designating existing text as paragraph (a) and adding a new paragraph (b) to read as follows: § 35.455 Maximum Federal share. * • • • • (b) The Regional Administrator may increase the 75 percent maximum Federal share for an Indian Tribe based upon application and demonstration by the Tribe that it does not have adequate funds (including Federal funds authorized by statute to be used for matching purposes), Tribal funds, or in- kind contributions to meet the required 25 percent match requirement. In no case shall the Federal share be greater than 90 percent. 11. Section 35.460 is revised to read as follows: § 35.460 Limitation*. After September 30,1983. the Regional Administrator will not award section 1443(b] funds unless the applicant has primary enforcement responsibility for the Underground Water Source Protection program. The above limitation shall not apply to funds allotted to Indian Tribes. 12. Part 35 is amended to add a new- Section 35.465 to read as follows: § 35.4C5 Indian Tribes. (a) The Regional Administrator will not award initial section 1443(b) funds to an Indian Tribe unless: (1) EPA has determined that the Indian Tribe meets the requirements of 40 CFR Part 145 Subpart E—Treatment of Indian Tribes as States. (2) The applicant has an Underground Water Source Protection program or agrees to establish one within four years of the initial award and agrees to assume primary enforcement responsibility within this period. (b) The Regional Administrator shall not give a continuation award to any- Indian Tribe unless the Tribe can demonstrate reasonable progress towards assuming primary enforcement responsibility within the four-year period. (c) After the four-year period expires. the Regional Administrator shall not award section 1443(b) funds to an Indian Tribe unless the Tribe has assumed primary' enforcement responsibility. PART 124—PROCEDURES FOR DECISION MAKING 1. The authority citation for Part 124 continues to read as follows: ------- 37410 Federal Register / Vol. 53, No. 186 / Monday. September 26, 1988 / Rules and Regulations Authority: Resource Conservation and Recovery Act. 42 US.C. 6901 et seq.: Safe Drinking Water Act. 42 U5.C. 300f et seq.; Clean Water Act. 33 L'S.C 1251 et seq.: and Clean Air Act 42 U.S.C. 18S7 et teq. 2. Section 124.2 is amended by adding the definition "Indian Tribe" in alphabetical order and by revising the following definitions to read: { 124.2 Definition*. "Director" means the Regional Administrator, the State director or the Tribal director as the context requires, or an authorized representative. When there is no approved State or Tribal program, and there is en EPA administered program, "Director" means the Regional Administrator. When there is an approved State or Tribal program. "Director" normally means the State or Tribal director. In some circumstances. however, EPA retains the authority to take certain actions even when there is an approved State or Tribal program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval; see { 123.1) In such cases, the term "Director" means the Regional Administrator and not the State or Tribal director. • »•«•* "Indian Tribe" mear.s (except in the • case of RCRA) any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties end powers over a defined area. 0 • • « • "Person" means an individual association, partnership, corporation. municipality. State. Federal, or Tribal agency, or an agency or employee thereof. » • • • * "State*' means one of the States of the United States, the District of Columbia. the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific islands (except in the case of RCRA), the Commonwealth of the Northern Mariana Islands, or an Indian Tribe treated as a State (except in the case of RCRA). "State Director" means the chief administrative officer of any State. interstate, or Tribal agency operating an approved program, or the delegated representative of the State director. If the responsibility is divided among two or more States, interstate, or Tribal agencies, "State Director" means the chief administrative officer of the State, interstate, or Tribal agency authorized to perform the particular procedure or function to which reference is made. • « . •._ ** * 3. Section 124.10(c)(l)(iii) is revised to read as follows: § 124.10 Public notice of permrt actions and public comment period. • • * a • (c) ' • • (I)'" (iii) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation. State Historic Preservation Officer*, including any affected States (Indian Tribes). (For purposes of this paragraph, and in the context of the Underground Injection Control Program only, the term State includes Indian Tribes treated as States.) PART 141— NATIONAL PRIMARY DRINKING WATER REGULATIONS 1. The authority citation for Part 141 is revised to read as follows: Authority: 42 U.S.C 300f et seg. 2. Section 141.2 (d) and (hj are revised to read as follows: §141.2 Definition*. • • * • • (d) "Person" means an individual; corporation; company; association; partnership; municipality, or State. Federal, or tribal agency. • • • « • (h) "Stale" means the agency of the State or Tribal government which has jurisdiction over public water systems. During any period when a State or Tribal government does not have primary enforcement responsibility pursuant to Section 1413 of the Act, the term "State" means the Regional Adminstrator, U.S. Environmental Protection Agency. PART 142—NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION 1. The authority citation for Part 142 is revised to read as follows: Authority: 42 U.S.C. 300f et seq. 2. Section 142.2 is amended by redesignaring paragraphs (f) through (p) as paragraphs (h) through (r) and by adding new patagiaphs (i) anu ig). and the redesignated paragraphs (i). (k). and (o) are revised to read as follows: 11425 Definitions. • * * • • (f) "Indian Tribe" mear.s any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over a defined area. (g) "Interstate Agency" means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States or Indian Tribes having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator. * « * • • (i) "Municipality" means a city, town, or other public body created by or pursuant to State law. or an Indian Tribe which does not meet the requirements of Subpart H of this part. * • • • • (kj "Person" means an individual: corporation; company; association; partnership; municipality; or State, federal, or Tribal agency. « • • • • (o) 'State" means one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands. Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific islan'ds. or an Indian Tribe treated as a State. » « * • * 3. Section 142.3 is amended by adding a new paragraph (c) to read as follows: §142.3 Scope. • • • • * (c) Section 1451 of the SDWA authorizes the Administrator to delegate primary enforcement responsibility for public water systems to Indian Tribes. An Indian Tribe must be designated by the Administrator for treatment as a State before it is eligible to apply for Public Water System Supervision grants and primary enforcement responsibility. All primary enforcement responsibility requirements of Parts 141 and 142 apply to Indian Tribes except where jna^ifi^ajlt/ nnted. 4. Section 142.10 is amended by designating existing paragraph (fa)(3) as paragraph (b)(3)(i) and by adding a new paragraph (b)(3)(ii) and by adding paragraph (f) to read as follows: § 142.10 Requirements tor a determlmtion of primary enforcement responsibility. (3)!;} ------- Federal Register / Vol. 53. No. 186 / Monday. September 26. 1968 / Rules and Regulationi 37411 (ii)'Upon a showing by an Indian Tribe of an intergovernmental or other agreement tc have all analytical tests performed by a certified laboratory, the Admirrstrij'.or may waive this rrquirement. • • • • • (f) An Indian Tribe shall not be required to exercise criminal enforcement jurisdiction to meet the requirements for primary enforcement responsibility. 5. Part 142 is amended to add a new Subpart H to read as follows: PART 142—NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION Subpart H—Treatment of Indian Tribes as State* S*c. 142.72 Requirements for treatment as a State. 142.76 Request by an Indian Tribe for a determination of treatment as a Stale. 142.78 Procedure for processing an Indian Tribe's application for treatment as a State. Subpart H—Treatment of Indian Tribes as States § 142.72 Requirements for treatment as a State. The Administrator is authorized to treat an Indian Tribe as a State (for purposes of making the Tribe eligible to apply for a Public Water System Program) if it meets the following criteria: (a) The Indian Tribe is recognized b> the Secretary of the Interior. (b) The Indian Tribe has a tribal governing body which is currently "carrying out substantial govemmentdl duties and powers" over a defined area. (i.e.. is currently performing governmental functions tc promote the health, safety, and welfare of the affected population within a defined geographic area). (c) The Indian Tribe demonstrates that the functions to be performed in regulating the public water systems that the applicant intends to regulate are within the area of the Indian Tribal government's jurisdiction. (d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of administering (in a manner consistent with the terms and purposes of the Act and all applicable regulations) an effective Public Water System program by the existence of management and technical skills necessary to administer an effective Public Water System program or a plan to acquire the additional management and/or technical skills to administer an effective Public Water System Program: by the existence of institutions to exercise executive, legislative, and judicicl functions: by a history of successful managerial performance of public health or environmental programs: and by acceptable accounting and procurement procedures. § 142.76 Request by an Indian Tribe for a determination of treatment as a State. An Indian Tribe may apply to the Administrator for a determination that it qualifies for treatment as a State pursuant to section 1451 of the Act. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of S 142.72. The application shall consist of the following information: fa) A statement that the Tribe is recognized by the Secretary of the Interior. (b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement shall: (1) Describe the form of the Tribal government (2) Describe the types of governmental functions currently performed by the Tribal governing»body such as. but not limited to. the exercise of police powers affecting (or relating to) the health. safety, and welfare of the affected population: taxation: and the exercise of the pdVer of eminent domain: and (3) Identify the sources of the Tribal government's authority to carry out the governmental functions currently being performed. (c) A map or tegal description of the area over which the Indian Tribe asserts jurisdiction; a statement by the Tribal Attorney General (or equivalent official) which describes the basis for the Tribe's jurisdictions! assertion (including the nature or subject matter of the asserted jurisdiction): a copy of all documents such as Tribal constitutions, by-laws, charters, executive orders, codes. ordinances, and/or resolutions which support the Tribe's assertedrjurisdiciion: and a description of the locations of the public water systems the Tribe proposes to regulate. (d) A narrative statement describing the capability of the Indian Tribe to administer an effective Public Water System program. The narrative statement shall include: (1) A description of the Indian Tribe's previous management experience including, but not limited to, the administration of programs and services authorized by the Indian SeH- Determinabon and Education Assistance Act (25 U.S.C 450 et »eq.). the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the radian Sanitation Facilities Construction Activity Act (42 U.S.C. 2004a). (2) A list of existing environmental or public health programs administered by the Tribal governing body and a copy of related Tribal laws, regulations and policies. (3) A description of the Indian Tribe's accounting and procurement systems. (4) A description of the entity (or entities) which exercise the executive. legislative, and judicial functions of the Tribal government. (5) A description of the existing, or proposed, agency of die Indian Tribe which will assume primary enforcement responsibility, including a description of the relationship between owners/ operators of the public water systems and the agency. (6) A description of the technical and administrative capabilities of the staff to administer and manage an effective Public Water System Program or a plan which proposes how the Tribe will acquire additional administrative and/ or technical expertise. The plan must address how the Tribe will obtain the funds to acquire the additional administrative and technical expertise. (e) The Administrator may. in his discretion, request further documentation necessary to support a Tribal request for treatment as a State. (f) If the Administrator has previously determined that a Tribe has met the requirement for "treatment as a State" for programs authorized under the Sale Drinking Water or the Clean Water Acts, then thai Tribe may provide only that information unique to the Public Water System program (/«.. §J 142.76(c) and 142-76(d)(6)). $ 142.76 Procedure for processing an Indian Tribe's application for treatment as a State. (a) The Administrator shall process a completed apphcation of an Indian Tribe for treatment as a State submitted pursuant to S 142.76 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application. (b) Within 30 days after receipt of the Indian Tribe's completed application for treatment as a State, the Administrator shall notify the appropriate governmental entities. Notice shall include information on the substance of and basis for the Tribe's jurisdictions! assertions. (c) Each governmental entity so notified by the Administrator shall havr ------- 37412 Federal Register / Vol. 53. No. 186 / Monday, September 26. 1988 / Rules and Regulations 30'days to comment upon the Tribe's assertion of jurisdiction. Comments by governmental entities shall be limited to the Tribe's assertion of jurisdiction. (d) If a Tribe's asserted jurisdiction is subject to a competing or conflicting claim, the Administrator, after consultation with the Secretary of the Department of the Interior, or his designee, and in consideration of other comments received, shall determine whether the Tribe has adequately demonstrated the requisite jurisdiction for primacy for the Public Water System Program. (e) If the Administrator determines that a Tribe meets the requirements of S 142.72, the Indian Tribe is then eligible to apply for development grants and primary enforcement responsibility for a Public Water System Program and associated funding under section 1443(a) of the Act and for primary enforcement responsibility for public water systems under section 1413 of the Act PART 143—NATIONAL SECONDARY DRINKING WATER REGULATIONS 1. The authority citation for Part 143 is reviised to read as follows: Authority: 42 U.S.C 300f et se<). 2. Section 143.2(d) is revised to read as follows: § 143.2 Definition*. • • • • * (d) "State" means the agency of the State or Tribal government which has jurisdiction over public water systems. During any period when a State does not have responsibility pursuant to section 1443 of the Act, the term "State" means the Regional Administrator, U.S. Environmental Protection Agency. PART 144—UNDERGROUND INJECTION CONTROL PROGRAM 1. The authority citation for Part 144 is revised to read as follows: Authority: Safe Drinking Water Act. 42 U.S.C. 300f et sec/: Resource Conservation and Recovery Act. 42 U.S.C. 6901 el seq. 2. Section 144.3 is amended by adding the definition "Indian tribe" in alphabetical order and by revising the following definitions to read: { 144.3 Definitions. • • • • • "Approved State Program" means a U1C program administered by the State or Indian Tribe that has been approved by EPA according to SDWA sections 1422 and/or 1425. "Director" means the Regional Administrator, the State director or the Tribal director as the context requires. or en authorized representative. When there is no approved State or Tribal program, and there is an EPA administered program, "Director" means the Regional Administrator. When there is an approved State or Tribal program, "Director" normally means the State or Tribal director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State or Tribal program. In such cases, the term "Director" means the Regional Administrator and not the State or Tribal director. • • • • • "Indian Tribe" means any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over a defined area. • • • • • "Interstate Agency" means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States or Indian Tribes having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the "appropriate Act and regulations." * • * • • "Person" means an individual, association, partnership, corporation, municipality, State, Federal, or Tribal agency, or an agency orjemployee thereof. • • * • * "Slate" means any of the 50 States. the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, or an Indian Tribe treated as a State. "State Director" means the chief administrative officer of any State. interstate, or Tribal agency operating an "approved program," or the delegated representative of the State director. If the responsibility is divided among two or more States, interstate, or Tribal agencies, "State Director" means the chief administrative officer of the State, interstate, or Tribal agency authorized to perform the particular procedure or function to which reference is made. PART 145—STATE UIC PROGRAM REQUIREMENTS 1. The authority citation for Part 145 is revised to read as follows: Authority: 42 U.S C 300f et seq. 2. Section 145.1 is amended to add a new paragraph (h) to mod as follow*: § 145.1 Purpose and scope. • • • # • (h) Section 1451 of the SDWA authorizes the Administrator to delegate primary enforcement responsibility for the Underground Injection Control Program to Indian Tribes. An Indian Tribe must establish its eligibility to be treated as a State before it is eligible to apply for Underground Injection Control grants and primary enforcement responsibility. All requirements of Paris 124,144,145. and 146 that apply to States with UIC primary enforcement responsibility also apply to Indian Tribes except where specifically noted. 3. Section 145.13 is amended to add a new paragraph (e) to read as follows: 1145.13 Requirements for enforcement authority. • • • * • (e) To the extent that an Indian Tribe does not assert or is precluded from asserting criminal enforcement authority the Administrator will assume primary enforcement responsibility for criminal violations. The Memorandum of Agreement in J 145.25 shall reflect a system where the Tribal agency will refer such violations to the Administrator in an appropriate and timely manner. 4. In Section 145.21. existing paragraphs (c) through (f) are redesignated as paragraphs (d) through (g) and a new paragraph (c) is added to read as follows: § 145.21 General requirement* for program approvals. • • • • • (c) The requirements of § 145.21 (a) and (b) shall not apply to Indian Tribes • • • • • 5. Part 145 is amended to add a new Subpart E to read as follows: Subpart E—Treatment of Indian Tribes as States Sec 145.52 Requirements for treatment as a Stale. 145.56 Request by an Indian Tribe fur i> determination of treatment as a State 145.58 Procedure for processing an Ind.jr, Tribe's application for treatment as a State. Subpart E—Treatment of Indian Tribes as States § 145.52 Requirements for treatment as a State. The Administrator is authorized to treat an Indian Tribe as a State (for ------- Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations 97413 purposes of making the Tribe eligible to apply for an Underground Injection Control Program) if it meets the following criteria: (a) The Indian Tribe is recognized by the Secretary of the Interior. (b) The Indian Tribe has a Tribal governing body which is currently "carry-ing out substantial governmental duties and powers" over a defined area. (i.e., is currently performing governmental functions to promote the health, safety, and welfare of the affected population within a defined geographic area). (c) The Indian Tribe demonstrates that the functions to be performed in regulating the underground injection wells that the applicant intends to regulate are within the area of the Indian Tribal government's jurisdiction. (d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment of administering (in a manner consistent with the terms and purposes of the Act and all applicable regulations) an effective Underground Injection Control Program by the existence of management and technical skills necessary to administer an effective Underground Injection Control Program or a plan to acquire the additional management and/or technical skills to administer an effective Underground Injection.Control Program; by the existence of institutions to exercise executive, legislative, and judicial functions: by a history1 of successful managerial performance of public health or environmental programs: and by acceptable accounting a:.d p.ocuK.-.ien! procedures. { 145.56 Requect by an Indian Tribe tor a determination of treatment as • State. An Indian Tribe may apply to the Administrator for a determination that it qualifies for treatment as a State pursuant to section 1451 of the Act. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of § 145.52. The application shall consist of the following: (a) A statement that the Tribe is recognized by the Secretary of the Interior. (b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement shall: (1) Describe the form of the Tribal government: (2) Describe the types of governmental functions currently performed by the Tribal governing body such as. but not limited to, the exercise of police powers affecting (or relating to) the health. safety, and welfare of the affected population: taxation; and the exercise of the power of eminent domain; and (3) Identify the sources of the Tribal government's authority to carry out the governmental functions currently being performed. *. (c) A map or legal description of the area over which the Indian Tribe asserts jurisdiction; a statement by the Tribal Attorney General (or equivalent official) which describes the basis for the Tribe's jurisdictional assertion (including the nature or subject matter of the asserted jurisdiction); a copy of all documents such as Tribal constitutions, by-laws. charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's asserted jurisdiction; and a description of the locations of the underground injection wells the Tribe proposes to regulate. (d) A narrative statement describing the capability of the Indian Tribe to administer an effective Underground Injection Control program which stval! include: (1) A description of the Indian Tribe's previous management experience including, but not limited to, the administration of programs and services authorized under the Indian Self- Determination and Education Assistance Act (25 U.S.C. 450 et ~seq.}. the Indian Mineral Development Act (25 U.S.C. 2101 et seq.}. or the Indian Sanitation Facilities Construction Activity Act (42 U.S C. 2004a). (2) A list cf existing environmental or public health programs administered by the Tribal governing body and a copy of related Tribal laws, regulations and policies. (3) A description of the Indian Tribe's accounting and procurement systems. (4) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government. (5) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary enforcement responsibility, including a description of the relationship between owners/ operators of the underground injection wells and the agp.icy. (6) A diSLiiption of ihe technical and administrative capabilities of the staff to administer and manage an effective Underground Injection Control Program or a plan which proposes how the Tribe will acquire additional administrative and/or technical expertise. The plan must address how the Tribe will obtain the funds to acquire the additional administrative and technical expertise. (e) The Adminstrator may. in his discretion, request further documentation necessary to support a Tribal request for treatment as a State, yff) If the Administrator has previously determined that a TjaheJ%t.met the requiremeni fbr^treatmem aB,a State" for programs authorized underthe Safe Drinking Water or the deep-Water Acts, then that Tribe may provide only that information unique to the Underground Injection Control program (i.e., ii 145.78(c) and 145.T6{d)(6)). 5 145.5» Procadurs tor processing an Indian Tribe's application for traatmant as a Stats. (a) The Administrator shall process a completed application of an Indian Tribe for treatment as a State submitted pursuant to i 145.56 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application. (b) Within 30 days after receipt of the Indian Tribe's completed application for treatment as a State, the Administrator shall notify the appropriate governmental entities. Notice shall include information on the substance and base for the Tribe's jurisdictional assertions. (c) Each governmental entity so notified by the Administrator shall have 30 days to comment upon the Tribe's assertion of jurisdiction. Comments by governmental entities shall be limited to •the Tribe's assertion of jurisdiction. (d) If a Tribe's asserted jurisdiction is subject to a competing or conflicting claim, the Administrator, after consultation with the Secretary of the Department of the Interior, or his designee, and in consideration of other comments received, shall determine whether the Tribe has adequately demonstrated the requisite jurisdiction for primacy for the Underground Injection Control Program. (e) If the Administrator determines that a Tribe meets the requirements of S 145.52. the Indian Tribe is then eligible to apply for development grants and primary enforcement responsibility for an Underground Injection Control program and the associated funding under section 1443(b) of the Act and primary enforcement responsibility for the Underground Injection Control Program under sections 1422 and/or 1425 of the Act. PART 146—UNDERGROUND INJECTION CONTROL PROGRAM: CRITERIA AND STANDARDS 1. The authority citation for Par. 146 is revised to read as follows: ------- 37414 Federal Register / Vol. S3. No. 186 / Monday. September 26. 1988 / Rules and Regulations Authority: Safe Drinking Water Act. 42 U.S.C. 300f et seq.: Resource Conservation and Recovery Act. 42 U.S.C. 6901 et seq. 2. Section 146.3 is amended by adding the definition "Indian Tribe" in alphabetical order and by revising the following definitions to read: J 146.3 Definitions. « o • • • "Director" means the Regional Administrator, the State director or the Tribal director as the context requires, or an authorized representative. When there is no approved State or Tribal program, and there is an EPA administered program, "Director" means the Regions 1 Administrator. When there is an approved State or Tribal program. "Director" normally means the State or Tribal director. In some circumstances, however-EPA retains the authority to take certain actions even when there is an approved State or Tribal program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval; see § 123.69). In such cases, the term "Director" means the Regional Administrator and not the State or Tribal director. • • • • « "Indian Tribe" means any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over a defined area. • • • • • "Stale Director" means the chief administrative officer of any Stale. interstate, or Tribal agency operating an "approved program." or the delegated representative of the State Director. If the responsibility is divided among two or more State, interstate, or Tribal agencies, "State Director" means the chief administrative officer of the State. interstate, or Tribal agency authorized to perform the particular procedure or function to which reference is made. » • « • • [FR Doc. 86-21695 Filed 9-23-88: 8:45 am] •IUIMG CODE IMO-SO-M ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY APR 2 51989 MJEMORANDUM SUBJECT: FROM: TO: Final Guidance on Implementing the Indian Primacy Rule for the PWSS and UIC Programs Robert J. Blanco, Director State Programs Division Drinking Water Branch Chiefs Regions I-II and IV - X . This memorandum transmits to you our final guidance document on Implementing the Indian Primacy Regulations for the PWSS and UIC programs. A copy of the final draft of this document was sent to you on February 23 along with a request for comments. We received comments from the Office of General Counsel and the Office of Water. In response to these, we have made some minor changes, for example, we have moved the discussion of Tribal Courts into the section on Capabilities. We also clarified our discussion on enforcement and added a Table of Contents. I wish to thank all of you for your assistance in this project and I hope this document will be useful to you and your staff. Should you have any questions, please contact Betsy Devlin (FTS 382-2303) for the PWSS program and Don Olson (TTS 382-5558) for the UIC program. Attachment CUMMAM; pi ••«•••••••••••••«* ------- TABLE OF COHTEHTS SECTION PAGE NUMBER I. Introduction 1 II. Treat-ent as a State 3 A. Required Inf crrr.aiion 3 B. EPA Review of Treatment as a State Applications 9 C. Tir.e Frar.e for Processing Treatment as a State Applications 11 III. Develop-.ent Grants 11 A. Required Ir.f orrr.ation 11 B. EPA Review 15 IV. Privacy 16 A. Required Ir.f orr.ation 16 E-. IrA Review 16 A. Treet-ent as 5 State Checklist 3. Treatment as a State Decision Process -Flowchart C. Suggested Development Grant Goals for the PWSS and UIC Programs ------- IKDIA1! PRIMACY GUIDANCE April 1989 I • INTRODUCTION Section 1451 of the Safe Drinking Water Act (SDWA) authorizes the Administrator to treat Indian Tribes as States. Section 1451 states: "Such treatment shall be authorized only ; c . +. A. . (a) the Indian Tribe is recognized by the Secretary of the Interior and has a governing body carrying out substantial governmental duties and powers; ft) the functions t.o be exercised by the Indian Tribe are vitr.iri the area of the Tribal government's jurisdiction; and \c] the Indian Tribe is reasonably expected to be capable. in the Administrator's judgement, of carrying out the functions to be exercised in a manner consistent with the -err.s and purposes of this title and all applicable regulations." On September 26, 1988, EPA published the final regulations for addressing primary enforcement responsibility (primacy) for Indian Tribes for the Public Water System Supervision (PWSS) and the Ur.cercround Injection Control (UIC) programs (53 FR 37396). The regulations envision a three-step process for Indian Tribes to be Granted primary enforcement responsibility for administering a ?wss cr a UIC program. The first is to be designated eligible for treatment as a State; the second, to apply for and receive Federal funding tc develop program capability; and finally, to apply for and be granted primary enforcement responsibility using the same procedures and meeting the same requirements as States must meet. The regulations also expand on the statutory criteria identified above by specifying various factors the Agency will evaluate in determining a given Tribe's eligibility for treatment - as a State. Readers of this guidance are directed to the Preamble of the final rule (53 FR 37396) for a thorough discussion of the treatment as a State requirements. The regulations may be found at 40 C?R 142.76 for the PWSS program and 40 CFR 145.56 for the UIC program. It is important for all to be aware that Tribes rr.ay apply for treatment as a State under either the Safe Drinking Water Act or the Clean '.'ater Act and that once so designated, a Tribe need ------- -2- only submit infornation unique to the specific program (e.g.. PWSS or UIC) for vhich it is applying (rather that resubir.itting all previous treatment as a State information). (It is therefore critical that contacts be kept a^.cng all water programs.) After being designated eligible to be treated as a State, a Tribe reay apply for a developrer.t grant. As has been done with the States, development grants will be handled on a case-by-case basis. Staff should work closely with Tribal applicants to identify both existing and needed program capabilities. Much of the information pertaining to existing program capabilities is likely to be par-: of the treatment as a State application. If ths Tribe has applied for treatment as a State for the PWSS or the UIC program, the development grant application way reference the treatr.ent as a State application and not repeat information already provided. If the Tribe has applied for treatment as a State under another program, then information en PWSS and/or UIC program capabilities will have to be prepared and submitted. This guidance package identifies goals to be achieved during the period of the development grant. The Regions r.ay r.odify these suggested goals to fit the specific situation. The third and final application is for primacy. Once a Tribe has completed the development phase and has demonstrated to the satisfaction of the Regional Administrator that it can effectively acr.irvister the prograr.., the Tribe submits an application fcr primacy. The requirements and procedures for applying for prir.acy are specifically defined in 40 CFR Sections 142.10 through 142.13 for the PWSS program and in 40 CFR Part 145 for. the UIC prograr.. Tribes T.ust r.eet these requirements in order to be granted prir.acy. Ulote: the PWSS primacy regulations are undergoing revisii... Indian Tribes applying for primacy will be subject to the new regulations which are expected to be promulgated •in July 198S.> When these are final, a copy will be circulated to all for their use.) lional staff should work with the Tribes in their Region to fully explain the rule and its potential impact on the Tribes. An important itess which sust bs dealt with early on is the economic aspects of assuring a PWSS or UIC primacy program. The grant regulations state that a Tribe must natch federal funding at 25% unless the Tribe can demonstrate that it does not have adequate funds, including federal funds authorized by statute, to be used for matching purposes. In that case, the Tribal match could be lowered tc 10%. The key point which must be communicated is that the level of funding -v»ilmbl* for a given fiscal year is fixed, ------- -3- and consequently, an applicant -ay not receive the entire level of funding requested. Those funds required, but not provided by thefederal government will have to come fro- Tribal sources. An analysis of State PWSS prograr.s indicated that although the States are required to match federal funds at 25%, in reality they are matching 50 to 60 % because the Agency is unable to provide any additional resources. It is quite likely that Tribes assuming primacy viil face similar situations. In addition, in these early discussions, the limitations of the privacy prograr.s rmst be pointed out. For example, the SDWA does not provide funds for construction and/or maintenance of drinking vater facilities nor can facilities be upgraded using SDw; funds. It is important that these be understood at the beginning of the process. This guidance document is meant to serve two primary purposes. First, it is designed to familiarize all staff with the Indian primacy rule and its requirements. Secondly, it should giv« Regional Staff the assistance they need to discuss the rule with Tribes and to evaluate Tribal submissions. Finally, please note that this guidance does not provide a detailed discussion of the . requirements for primacy. These are handled in other materials ?.nc staff should consult these for additional details. Tribes must sucmi— information which demonstrates the follcwing: (1) Federal Jlecqc/iiirion.. The Secretary of the Interior publishes in the Fe_deral Reg iste r a list of Federally recognized Tribes. The applicant r.ay submit a copy of this list to establish the fact that it has Federal recognition. In the event.that the Tribe has been recently "recognized" but does not yet appear on the list in the Federal Register. the Tribe should provide copies of the appropriate paperwork it has received from the Secretary of the Interior. If a Tribe has other documentation which shows Federal Recognition, it rr.ay subr.it this in lieu of a copy of the Federal Register notice. ------- -4- ( 2 ) "Governing body carrying^ out substantial duties and powers. " The regulations require that a Tribe subr.it a" narrative statement which shows that a Tribe is performing these duties in providing for the health, safety, and welfare of its Tribal members. ..Examples of the duties include, but are not limited to, the power to tax, the power of eminent domain, and the power to adopt civil regulations. The regulations also require document at ion to support the information provided in the narrative. Rather than have Tribes provide what could be a great deal of extraneous information, Regions should have applicants focus the material as appropriate. For example, sor-e Tribal constitutions are very lengthy and incorporate all Tribal codes. It would be very tine consuming for the Tribe to make copies of this material and also for Regional staff to review it. The Tribe could sinply provide a copy of the ratification page, a table of contents, and the appropriate codes . Most Indian Tribal governments perform essential governmental functions traditionally performed by sovereicn governments; however., the degrt* to which, these functions are developed and exercised can vary widely among the Tribes. Consequently, the Region must evaluate each application on a case-by-case basis to determine if the Tribe exercises the necessary duties and pcwers to promote the health, safety, and welfare of the residents. The narrative statements required by the regulations 1142. 76 (b) for the PWSS program and 145. 56 (b) for the UIC program.] ir.ust include, at a minimum., the following: A !a) An identification of the sources of the Tribal government's authority to carry out the governmental functions currently being performed (e.g.. Tribal constitution) . x de«cription of the organizational structure of the Tribe. This must include a description of the powers exercised by each governmental entity, for example, police powers and taxation. It must also include a description of how governmental members are elected or appointed and the length of the terms served. (c) A description of the programs that the Tribe has instituted to promote the health, safety, and welfare of its ------- -5- Tribal members. This must include a description of the responsible Tribal entities for enforcing the programs and the enforcement mechanism. ( 3) "Functions to be exercised ... are within the Tribal government' s jurisdiction". In order to assume responsibility for an environmental regulatory prograrr. within the extsrior boundaries of a reservation, the Tribe must have regulatory authority over the geographic area in question. A Tribe's authority over the area may .appear clouded by the existence of fee lands, federal lands, and non-Indian or federally owned water systems within the reservation boundaries. (These complications, however. should not significantly affect the Tribe's application for treatment as a State.) The Tribe must demonstrate its legal authority over the area in question. The Tribal Attorney General, or an equivalent officer, must subr.it a statement certifying that the Tribe possesses sufficient authority to regulate and enforce the F»SS or VIC prograr. in the appropriate are?.. This statement -us" be supported by attaching copies (or portions thereof) of appropriate treaties', Tribal constitutions, codes, or resolutions documenting this authority, where possible, specific language maintaining the assertion should be highlighted or excerpted so as to provide.the strongest ani most logical arguments for Tribal authority. In addition to the legal documentation, the Tribe must submit a legal description of the area over which its asserts-Tribal authority and a map showing the location of this area. Finally, the Tribe should submit information identifying specific public water systems or injection wells over which they assert Tribal authority. Map scales are left to the applicant's discretion, however, they should clearly delineate the reservation boundary and public water supply facilities and/or underground injection wells which they consider tc be within their legal authority. Finally, the Tribe must have jurisdiction over the persons '(i.e.. the owners/operators of the public water systems and/or injection wells). This is dealt with in the section on Tribal court systems. ------- -6- (4) "Reasonably expected to be capable". The regulatory language requires Tribes to subrr.it a narrative statement that addresses the six criteria related to capability identified in 40 CFR 142.76(d) for the PWSS program and in 40 CFR 145.56(d) for the UIC program. Each .of the six criteria is listed in this section alone with an explanation of the information which must be provided. (a) Previous management experience [142.76(d) (1) and 145.56(d)(1)]. The Tribe's managerial skills will be evaluated on the basis of their experience in administering contracts and grants awarded under such authorities as the Indian Self-Determination Act, the Indian Mineral Development Act, or the Indian Sanitation Facility Construction Activity Act. The narrative should state each of the contracts and/or grants that the Tribe administers o: has administered, and provide a copy cf each. The Tribe should also provide a copy of any evaluations by the awarding Agencies. EPA will consider such factors as the variety and length of the managerial experiences end will consider the evaluations of Tribal performance in administering programs performed b-y the avarding Agencies (b) Existing environmental or public health progra-s administered by the tribal governing body^and. a copy of_ related Tribal laws, regulations, and policies. [142.76(d)(2) and 145.56 (d) (2) ] . ' fhV'Trib* should describe each of the programs specified above and submit the appropriate documentation specifying the authority for implementing the program. The description should include the responsible Tribal entity for administering the program. EPA will consider such factors as number of programs the Tribe implements and their record of progress in enforcing the, provisions of each prograr. (If this information has been provided in the discussion of "governing body carrying out substantial duties and powers", then the material may be referenced and not repeated here.) {c) Accounting and Procurement system.. [ 14 i. 7 6 i d) i 3> and 145.56 (d) (3) ]. The Tribe must p~ro~vi.de a description of its accounting and procurement system. EPA will review the Tribe's system to insure that it meets established federal guidelines (e.g.. 25 CFR 271.46). ------- -7- (d) Entities which exercise the executive, legislative.__ and judicial functions of Tribal_ goyernmen- ' [142 . 76 (d ) ( 4~f and 145.56(d) (4) ]. The submission required under the "substantial governmental duties and powers" is likely to provide the necessary information as tp the executive and legislative functions of 'Tribal government and ir.ay be referenced by the Tribe in its application. The ir.formatior. will be reviewed according to the criteria in that section. Information on Tribal judicial functions is discussed below. Please note that this information -ay also be submitted under the "substantial governmental duties" section or with jurisdiction. If it has been submitted there, it may be referenced and not repeated. Tribal court systems may vary in make-up fror. non-Indian courts. In order for EPA to- evaluate a Tribe's judicial system, specific knowledge of the court organization and procedures is required. .-. second issue is the question of how a non-Indian receives "cue process" in a Tribal court. Both of these issues are central to determining whether a Tribe satisfies th-= criteria fcr treatment as a State. However. EFA cess no't intend ~o prescribe general criteria for what it considers "good" tribal court systems due to the fact that there are a variety of systems which could meet the objective stated above. Further, the effectiveness of Tribsl courts is, at least to some extent. Tribally and culturally dependent. This guidance is therefore confined to the types of information that r.ust be submitted to determine a Tribe's eligibility to be treated as a State. At a minimum, a Tribe must submit a narrative statement describing the following aspects of its judicial system: (a) Overview; A general overview of the judicial system and the source of authority (e.g.. Tribal constitution). (b) Lower Court. Include information on the court structure and court rules. If two or more Tribes seek to share program responsibilities, the relationship between the respective Tribal courts must be specified. (c) Appellate Court. Information similar to that provided for the lower court system is necessary for the Agency's understanding of the appellate court. A ------- -8- description cf the court structure and rule should be provided and the appeals process described. If two or -ore Tribes wish to share program responsibility, the relationship between the appellate courts and each of the Tribes should be addressed. (-) Penalty System. The syste- used to levy fines cr penalties should be described, including the statutory authority for assessing penalties, and any minimum or maximum penalties. If available, a schedule cf penalty amounts should also be included. (e) Judge Selection. The process used for selecting court judges (including minimum qualifications) should be specified. If judges are shared through a "circuit rider" syster,, details of that system and the .background of court officials should be provided. In addition, the legal process, appeals procedures, and any other legal rer.ecies available to Indians and non-Indians should be specified. This infcreation is necessary to evaluate the legal rights of non-Indians in the Tribal court syster.. (e) Existing or proposed agency of the Indian Tribe which wilJL assuna primary enforcement responsibility' [ 142 . 76 (d") ( 5) and 145.56(d) (5)] . The Tribe will be required" to describe the Agency of the Tribe which will assume prirr.ary enforcement responsibility. The Tribe will be required to sub-it supporting documentation which establishes the Agency and provides a description of the authorities that the Agency is given. An organization chart which shows the relationship of this Agency to other Tribal Agencies will be required. This Agency must have the authority to implement a prinacy program and a statement from the Tribal Attorney General or attorney representing the Tribe must be provided as noted previously. EPA will determine in its review if any potential conflict of interest exists between the regulating Agency and the owner/operator of the public water systems or underground injection wells (See information on this under Development Grants.) (f) Technical and administrative capabilities of the staff to administer and manage a public water system supervision and/or an underground injection control program. [142.76(d)(6) and 145.56 (d) (6) ]. The Tribe ir.ust: provide = description of the technical and administrative capabilities ------- -9- of the staff that will fill the positions in the proposed Agency Position descriptions will be acceptable for describing the expected capabilities. At a minimum, the Tribe should employ individuals knowledgeable in the areas of public health and environmental engineering and/or science. The Indian Health Service (IHS) presently provides varying levels of assistance to Tribes. Many cf the areas in which IKS provides this assistance are areas a Tribe would have to take over if it is to be granted primacy. ~oi example, IHS currently provides plan and specification review for Tribes and conducts sanitary surveys at Tribal facilities. Regional Offices should recognize these IKS/Tribal agreements; however, these agreements will need to clearly define the responsibilities of IKS and the Tribe The Tribe should comr.it to assume full responsibility for these functions. 3. EFA Review of Treatment as a State Applications. EPA staff will review and evaluate Tribal submissions based on the regulations and this guidance. If a Tribe's application is found tc be lacking some needed materials, it should be returnee for a-endr.ent by the Tribe. A' checklist of required el-sre.-ts is provided in Attachment A to assist Regional staff in their review. •D Federal Recognition. Regional staff should obtain and ke=p on file the most recent Department of the Interior Bureau of Indian Affairs (BIA) Federal Register notification of Federally recognized Tribes. In the event a Tribe has been formally recognized, but has not been included on the most recent BIA Federal Register list. Regional staff should review the relevant correspondence that the Tribe has received front BIA. Staff may also contact appropriate IKS and BIA offices for confirmation of a Tribe's status. (2) "Governing body carrying out substantial duties and powers". The Region should insure that the narrative statement and supporting documentation show that the Tribe has an organized governmental body which exercises legislative, executive, and judicial powers. The records should show an established record of orderly government transitions and also that the government exercises and has ------- -10- exercised substantial governmental duties and powers in implementing programs to promote the health, safety, and welfare of its residents. (3) "Functions to be exercised ... are within the Tribe^_ government's jurisdiction". Review of the material on jurisdiction should be concurred on by the Office of Regional Counsel. It is important to recognize thai: the legislative history supports Tribal jurisdiction within exterior boundaries of reservations relative to Tribal health and welfare. Possible competing claims of jurisdiction rr.ay arise in checkerboard areas where States feel they have jurisdiction over non-Indian communities that have been incorporated under State statute within he exterior boundaries of the reservation. Regional Offices should facilitate State/Tribal meeting* to resolve these situations as soon as possible. Much of the information provided in ite- r2 will be applicable here. The Tribe is required to submit a legal descrip-io- and r-ap showing the geographic area over which it claims jurisdiction and also the location of the water syster.s and/or ir.jection wells over' which it claims regulatory authority. The Region should review the map submitted carefully along with the supporting documentation (treaties, etc.) The Attorney General for the Tribe or an attorney representing the Tribe is required to submit a statement that the governmental powers and duties exercised by the Tribe are within the authority of the Tribe. The statement rcust include Citations to the specific Tribal statutes, codes, resolutions, and where appropriate, judicial decisions which demonstrate adequate authority. (4) "Reasonably expected to be capable". Regional staff should reroer.ber that the decision to treat a Tribe as a State is wade very early in the process of developing Tribal programs. The standard for the capability determination is whether the Tribe is "reasonable expected to be capable" of administering the program. ------- -11- C. Time Frame for Processing Treatment as a State Applications. Within thirty (30) days of receipt of a Tribe's completed treatment as a State application, the Regional Administrator must notify the appropriate governmental entities (as discussed below) . ., Notice is to include information on the substance of, and basis • for, the Tribe's jurisdiction assertions. Each governmental entity so notified by the Administrator shall have 30 days to comment upon the Tribe's assertion of jurisdiction. Comments by governmental entities are limited to the Tribe's assertion of jurisdiction (40 CFR 142.78 and 145.58). It is suggested that the Regional Offices contact the Stats primacy agent and any Federal governmental entities such as the National Park Service, Department of Defense,-and the Department of Energy as appropriate. The State primacy agency may wish to contact any non-Indian communities that may be incorporated under State statute and located with the exterior boundaries of the applicant's reservation. Regional staff should request review by the Office of Regional Counsel and by other water program staff (as treatment as a State determinations made for one water procra- affect other wat-er programs). The Regional Indian Affairs Coordinator may be involved as appropriate. * If no competing claim of jurisdiction is received, the Regional Office should complete processing the application wi-r.in thirty cays. In the event there is a competing claim of jurisdiction, the regulations require the Administrator to consult with the Secretary of the Interior (or his designee) and to consider any other comments that may have been received prior tc making the determination as to whether the applicant meets the treatment as 4 State criteria. The Region should attempt to resolve such situations as expeditiously as possible. III. DEVELOPMENT GRANTS A. Required Information. Once a Tribe has been determined to be eligible to be treated as a State, it may apply for federal funding to develop its program. Regional staff have to work closely with their respective Tribes to clearly identify the various primacy program needs of each individual applicant and the costs. As noted earlier, a Tribe must match federal funding at 25% unless it can show it does not have adequate funds or in-kind contributions to meet this ------- -12- requirement. In that case, the Tribe may be allowed to match only 10%. A Region's decision to allow only a 10% match should be made very carefully as financial capability on the part of a Tribe is extremely important if they are to assume primacy. As stated earlier. Tribes can use certain Federal funds and/or "in-kind" contributions to neet the match requirements. In addition to the Tribal-specific needs, the following issues •nust be addressed by the Tribe in its errant application. (1) Reoulator/Regulatee conflicts must be resolved. In order to evaluate any potential conflict of interest created by the Tribe as both the regulator and the regulatee, the Tribe must sub-nit an inventory of all public water systems and/or underground injection wells to be regulated by the Tribe. The inventory must also identify the owner of the water system and/or the injection well. If not included as part of the treatment as a State application, the Tribe must also identify the existing or proposed Tribal organization that will be implementing the primacy program. The relationship between the primacy organization and the organization that owns/operates the public water system(s) and/or the underground injection wells must be defined and clearly explained. If there is a conflict of interest, a plan should be included or developed to resolve this conflict. (2) Laboratory Analyses associated with the PWSS Program. States seeking to obtain PWSS primacy are required to establish and maintain a State program for the certification of laboratories conducting analytical measurements of drinking water contaminants. The regulations at 142.10(b) (3) (ii) state that: "Upon a showing by an Indian Tribe of an intergovernmental or other agreement to have all analytical tests performed by a certified laboratory, the Administrator may waive this requirement." It is the responsibility of the owner/operatory of the public water system to insure that samples are analyzed by a certified laboratory. In some cases, the Tribe may by the owner/operator of the system. In other cases, the Tribe may choose to take on the responsibility of sample analysis for the public water system as is the case in some States. In all cases, it is necessary for the Tribe to have access to a certified laboratory to insure that special sampling and analysis can be conducted. ------- -13- Therefore. as a part of a development program, the Tribe must submit an explanation of the type of sampling it intends to do. The Tribe must also submit a copy of & contract with a certified laboratory which specifies ths type of analyses to be performed. Multiple contracts are acceptable where one laboratory cannot perform all required analyses. EPA will review the contracts to ensure that the laboratory is certified by either the State or EPA and that analyses for all regulated contaminants can be conducted. (3) Criminal enforcement authority (UIC program). Tribes are not required to have criminal enforcement capability -c qualify for treatment as a State [SDWA Section 1451(b)(2-]. This is not a major concern in the PWSS program as the only criminal violation is tampering with public water systems (See SDWA Section 1432). The UIC program, however, has authority under SDWA Section 1423 to bring criminal actio-s for willful violations. The UIC primary enforcement responsibility regulations at 145.13(e) state that to th-= extent that a Tribe does not have or is precluded fro--. asserting c'rir.inal enforcement authority, the Administrator will assume primary enforcement responsibility for criminal violations. Further. 145.13 requires that the Memorandum cf Agreement (a requirement for primary enforcement responsibility described in 145.25) spell out provisions fcr referring criminal violations to EPA. [For additional details and a further discussion of enforcement activities in general, see the next section on Enforcement Activities.] The Tribal authority to pursue criminal actions is complicated. Tribes have criminal authority over Trifcal members but their criminal authority over Indians who are not members of their Tribe is not always clear. Tribal criminal authority over non-Indians is precluded by the Supreme Court's decision in 1978 in the Oliphant v. Suquanfish Indian Tribe case. Therefore, the Regions must be sufficiently^lexible on this issue to accomodate different procedures for criminal actions against Tribal members, non-Tribal Indians, and non-Indians. (4) Enforcement activities (both PWSS and UIC programs). The Tribe must develop a compliance and enforcement strategy and an enforcement agreement with EPA which spells out its response to violations of the SDWA, of the National Primary Drinking Water Regulations, or of its own regulations. ------- -14- The cer.pliance/enf orcement strategy should also discuss the aniticpated use of penalties and other sanctions to address violations, and the approach used to calculate civil penalties should be defined. [Note: EPA expects a reasonable effort to calculate the economic benefit of nonccTr.pliance and to remove that benefit by assessing a penalty.] The compliance strategy should be consistent with EPA's PWSS and UIC Compliance Strategies (4/1/87) and other EPA enforcement policies. EPA will review the documents to insure this. Regional staff should consult with their PWSS or 'JIC Enforcement Coordinators to insure consistency in enforcement policies and approaches. The Tribe must also have (or develop) the mechanisms to restrain immediately and effectively any person engaging in ar.y unauthorized activity or operation which is endangering cr causing damage to public health or the environment (as related to the PWSS or UIC program requirements). The Tribal agency administering the program r.ust also have the r.eans to sue in courts of competent jurisdiction to prohibit ?.ny threatened or continuing violation^ of any program requirements and to assess or recover 'civil penalties as required by 142.10 for the PWSS program and'145.13 for the UIC program. The compliance/enforcement strategy should explain these mechanisms also. The Tribe is responsible for ensuring that the Tribal counsel, Tribal Attorney-General, or appropriate Tribal officers/staff are properly notified and consulted about planned enforcement actions at the Tribal cr Federal level. The compliance strategy (or Memorandum of Agreement) should lay out this process. •« Federal Facilities will be treated in the sane manner as non-Federal facilities. The Regional Water Division Director should be notified on a case-by-case basis of each proposed enforcement action against a Federal facility. As noted in the previous section, criminal actions may be appropriate in certain circumstances. In the PWSS program. .SDWA Section 1432 allows for the filing of criminal charges for tampering or attempting to tamper with a public water system. In the UIC program. SDWA Section 1423 allows for the filing of criminal charges for willful violations of any requirement of an applicable UIC program. In both programs, deliberately making false statements to the ------- -15- federal government is a cri-inal offense. In the compliance strategy, enforcement agreement, or Memorandum of Agreement (UIC Program.) , the Tribe should set forth its criminal authority over Tribal members and over non-Tribal members. In those instances where the Tribe lacks criminal authority. the Tribe rust commit to referring the case to the appropirate Regional office within a reasonable time. This requires submission to the Water Division Director of all pertinent information and continued coordination with EPA and the sub-.ission of additional information as it becomes available. Specific procedures for the handling of criminal cases should be developed. As noted earlier, these procedures must be in the Memorandum of Agreement for the UIC program; for the PWSS program, they can be in any document. B. EFA Review. Regional Staff should conduct a careful review of. all r.sterials submitted with a development grant application. In addition, previous years' performance in meeting commitments should te carefully considered before another year's funding is awarded. The following guidance is provided to help the Regions in their (1) Regulator/Regulatee conflicts. In the event a Tribal application does not adequately identify a resolution of a regulator/regulatee conflict. Regional staff may suggest the following possible actions to minimize potential conflicts. » -• If the Tribe needs to establish an agency or department to implement the program, the Tribe should not place this agency within the same division/organization as any Tribal agency responsible for operating public water systems or underground injection wells. Where a responsible agency already exists in the same division/organization, the Tribe should consider moving it. -or the Tribe should subir.it a description of the enforcement procedure to be followed when a potential or actual conflict exists. (2) Laboratory Analyses. Regional Staff should obtain a copy of the contract or agreement ensuring access to a State or EPA certified laboratory or laboratories. ------- -16- (3) Criminal__Enf orcement . Regional staff from both the Office of Regional Counsel and the Water Division will be involved from the beginning in developing the necessary Memorandum of Agreement; hence the review process will be continual . (4) C.ojri!pJ:.iajnc,i3__S_tra^eoj._es . Regional staff will be involved in the development of these over the course of the grant and so review will be continual. In addition to the specific issues, the checklists in Attachment C provide models as to development grant goals and ti-ef rar.es. Regional staff may modify these as appropriate to specific situations: however, what is important is that all the elements of a primacy program be developed by the end of the development period. Once 2 development grant has been awarded, the Tribe has 3 ye?.rs in the PWSS program and 4 years in the UIC program to assume primacy. -During this developmental stage, EPA staff need to work closely vith Tribes to isure that commitments are being met and. the program is developing properly. i re _c. _ I nf o r r a t ion... The requirements for primacy are specified in 40 CFR Part 142 for the PWSS program and in 40^CFR Part 145 for the »UIC program. Tribes applying for primacy must meet these requirements and must fellow the same procedures as States. (Note: as stated earlier, the PWSS primacy regulations are currently being revised. It is anticipate^ rhat a final regulation will be published in July 1989. Tribes applying for primacy after that date will be required tc comply with the new regulation.; • B. EPA Review. ---- The majority of the review and negotiations with the Tribe will be performed by the project officer in the Regional Drinking Water Brarrh. After a preliminary determination t^*t th« T^ib^ has met all of the requirements, the Drinking Water Branch should ------- -17- forward the application to the Office of Regional Counsel and to Grants Administration for review. (The Region should follow established Regional procedures in this matter. Other offices rr.ay be involved as the Region feels is appropriate.) When the Region believes that the application is final, they should send it to headquarters for final review and approval. ------- TREATMENT AS A STATE CHECKLIST T. r_eJ t menjt _ as_ a_ State Criteria Material to be Submitted Acceptable (see comments) Unacceptable (see comments) Not Submitted (sect comments) 1. Federal Recognition 2, Possesses and exetjfclses substantial governmental duties and powers. Copy of appropriate BIA Federal Register notification (or other documentation showing Federal Recognition). (a) Sources of governmental authority identified. (b) Description of the organizational structure of the Tribe including the powers exercised by- each governmental entity -- executive, legislative, and judicial. (c) Description of the programs that the Tribe has instituted to promof. the health, safety, and welfare of the Tribal members. ------- Trea tment as a S tate Criteria Material to be Submitted Acceptable 4 (see comments) Unacceptable (see comments) Not Subn.it tc- (see comment 3. Tribal Capability Mote: You need not repeat information already provided in 2(b). (a) Description of existing managerial capabilities emphasizing successful managerial performance of public health programs: (1) Summaries of grants/contracts and associated evaluations. (2) Summary of each environmental health program managed and the entity that manages it. (3) Description of accounting and procurement system. (4) Description of Tribal agency that will assume primacy, including discussion of regulator/regulatee conf1ict. (b) Description of Tribal court system. ------- Tr e a t men t_as _a_ S t a t e Criteria 4. Tribal Jurisdiction .be. Submitted (a) A map defining exterior boundaries of the reservation.(For SDWA programs include location of public water systems and underground injection wells. (b) Signed statement from the Tribal Attorney General (or the corresponding official) that the governmental duties and powers exercised by the Tribe are within the authority of the Tribe. Acceptable (see comments) Unacceptable (see comments) Not Submittec (see comments Regiona 1 _.Comme_nt s : ------- Attachment B TREATMENT AS A STATE APPLICATION PROCESS Tribe Submits Treatment as a State Application within 30 days 142.76 (PWSS) 145.58 (UIC) Regional Administrator notifies 'appropriate governmental entities." within 30 dav* I 142.76 (PWSS) 145.58 (UIC) Appropriate governmental entities submit comments (to be limited to program specific jurisdiction). I 'in a timely manner' 142.76 (PWSS) 145.58 (UIC) Regional Administrator notifies Tribe of eligibility to apply for grants. ------- Attachment C Suggested Development Grant Goals f.or_ the PWSS and UIC Primacy Programs. Tribal applicants must commit to assuming primary enforcement responsibility within the designated 3-year period for PWS and/or 4-year period for UIC. The commitments in the development grant agreements will also have to be negotiated on a case by case basis for each Tribe; however, the following goals and time frames are suggested for Regional use in discussions with their Tribes. Public Water System Supervision Program Year «1 Goals - Signed Drinking Water Statute addressing at least the public water system program; - Codified regulations (Tribal codes) at least as stringent as Federal regulations; - Regulations (Tribal Codes) developed to insur-e public participation'; - Public: notification procedures developed; - Hire technical staff as needed; - Resolve any regulator/regulatee conflict; - Sanitary survey protocols/procedures developed: - Data processing/record keeping procedures established; Year «2 Goals - Evaluate previous year's performance; - Memorandum of Understanding (including referral of criminal matters as necessary);* - Analytical requirements addressed; - Quality assurance,./plan developed and approved; - Compliance tracking system developed; - Variance and exemption policies defined; - Compliance and enforcement strategy developed. • Final guidance oh the development of the necessary memorandum of understanding is still being developed. ------- Attachment C Page 2 of 3 Year «3 Goals - Evaluate previous year's performance; - Demonstrate capability to administer the progra.ro effectively. Underground Injection Control Program Year fl Goals - Signed Drinking Water statute addressing at least underground injection control; - Codified regulations (Tribal Codes) for protection of underground sources of drinking water (USDWs) at least as stringent as Federal regulations; - Inventory of UIC wells; - Develop regulations (Tribal codes) to insure public participation; - Hire technical staff as needed; - Establish data handling/record keepina procedures. Year *2 Goals ^^_^^__^B«P~«B^^^«_n«^^B^^B * - Evaluate previous year's performance; - Complete adoption of necessary statute and regulatory requirements; - Develop compliance tracking procedures; - Develop compliance and enforcement strategy; - Train inspectors as needed; - Draft program description; - Update inventory. Year «3 Goals - Evaluate previous year's performance; - Complete program description; - Memorandum of Understanding (including referral of criminal matters as necessary)* - Submit copies of all pertinent UIC statutes and regulations; - Gain experience running portions of the UIC program; - Update inventory. * Final guidance on the development of the necessary Memorandum of Understanding is still being developed. ------- Year #4 Goals - Evaluate previous year's performance; - Submit formal request for program approval; - Tribe continues to gain experience running portion of program: - Update inventory; - Demonstrate capability to administer program effectively. Attachment C Page 3 of 3 ------- United StrtM Environmental ProMctlen Agency Offic* of Drinking Witer (WH 650) WMhington, DC 20460 EPA 570/948-001 J»nu*ry 1988 Indian Drinking Water Supply Study ------- EXECUTIVE SUMMARY Under Section 302(e) of the 1986 Amendments to the Safe Drinking Water Act (SDWA), the Environmental Protection Agency (EPA), in cooperation with the Indian Health Service (IHS), is required to conduct a .survey of drinking water on Indian reservations, identifying drinking water problems and the need, if any, for alternative drinking water supplies. In accordance with this mandate, EPA defined the scope of the study to include only public water systems (which serve 25 or more persons or have at least 15 service connections) due to the fact that the SDWA Amendments define EPA's role in regulation development .as one which applies to public, not individual water systems. In addition to addressing these requirements, EPA used the study as an opportunity to assess tribal awareness of the proposed Indian primacy regulations arid to identify how existing, infor- mation and technical assistance programs can be used more effectively to meet the drinking water needs of American Indians living on reservations. As a foundation for this study, EPA integrated data from the Federal Reporting Data System (FRDS), IHS1 Sanitation Facility Data System (SFDS) and selected information from an IHS survey of Indian drinking water systems in order to characterize the conditions of community drinking water systems on Indian reser- vations. These three information sources were originally developed to accommodate information which would reflect the status of the systems, but in and of themselves do not reflect all the problems that exist. Consequently, the data bases were supplemented with information collected daring site visits to ------- - 2 - 24 tribes in 6 IHS Areas located throughout the United States. This first-hand information provided a furttier understanding of a portion of community drinking water quality and supply problems and pointed out several difficulties which were not made apparent from the data search. Data Analysis An analysis of the information in EPA's and IHS1 informa- tion systems identified 836 public water systems existing on 190 reservations. Community systems represent 701 of the public water systems which are defined in the SDWA as systems serving 15 or more homes or 25 or more persons. Based on the data managed in these systems (e.g., frequency and duration of maximjm contaminant level (MCL) and monitoring violations), it appears that most tribes are able- to consistently supply safe drinking water. Only 6 percent of the 836 systems known to be on reservations reported MCL violations during 1986 for microbiological contamination. However, not all systems monitor consistently; 37 percent reported at least one monitoring violation, while almost 13 percent reported 10 or more during 1986. Virtually all the systems within the Billings and Portland IHS Areas recorded at least one monitoring violation, while 67 of the 80 systems in the Aberdeen IHS Area recorded 10 or more. Nearly a quarter'of the systems in the California IHS Area recorded at least one microbiological MCL violation. ------- - 3 - The study's assessment of the quality of community drinking water systems is based solely on the frequency of reported microbiological contamination problems due to the fact that these are often the most serious and most frequent violations. In addition, on a national basis, little information is available concerning the extent to which Indian community drinking water systems are contaminated with organic chemicals, pesticides, or metals. Reservations having the capabilities and the initiative to provide routine operation and maintenance services seem to be better prepared to provide good quality water than those not conducting routine operation and maintenance activities. IHS who is, jurisdictionally, more familiar with operation and maintenance in most cases, measures the success of operation and maintenance in terms-of "adeq'uacy" ratings.- IHS data indicates that water systems funded exclusively through uset fees have the highest adequacy ratings and the best water quality. By contrast, systems which are financed entirely by tribal funds have the lowest adequacy ratings and poorest water quality. These systems, which depend on the tribal government for all or part of their operating budgets, typically compete for funding with other tribal concerns and preventive maintenance f r ortnent- 1 v »-onrSc «• r\ ho n nfio r f import when r oc nil r i"<»c nr> »• n hinhs»r — --a j — -- — - ...._.- - — -,_ .._-, tribal priorities. ------- - 4 - Site Visit Analyses' The ability of Indian tribes to provide clean, safe drinking water (characterized by an absence of reported water- borne disease outbreaks and minimal microbiological contami- nation among the tribes visited) is a function of the tribes' economic status, the degree of oversight by qualified water system managers and operators, the raw water quality, and adherence to routine preventive maintenance schedules. All the tribes visited face some combination of water quality, water supply, and administrative problems; the severity of these problems depends upon a variety of factors, although the level of financial support and/or support for collecting user fees provided by the tribal governments appears to be the most significant. » Some problems exist among Indian water systems which are not unique to Indian tribes. Small non-Indian community water • systems (defined as systems serving 25 to 3,300 persons on a regular basis) typically experience many of the same problems that are documented in this study and share a number of charac- teristics common to Indian community systems, including the inability to adequately finance their systems, lack of trained operators, and lack of routine preventive operation and main- tenance procedures. The capabilities of the tribes to perform the required operation and maintenance depends on three factors: 1) the skills, knowledge, and personal interest of the manager of the ------- - 5 - water system; 2) the level of- operator training; and 3) the financial resources available to fund water system operation and maintenance and to retain qualified personnel. When one or more of these factors is lacking, preventive maintenance is typically neglected, resulting in a gradual deterioration of the water system, a proliferation of operation and maintenance problems, and an increase in SDWA monitoring and MCL violations. In most cases, the technical assistance provided by IHS is a significant factor in keeping the community drinking water systems functioning adequately. The methods by which SDWA and technical information is provided to the tribes vary by IHS Area. For the most part, SDWA information is provided primarily by the EPA Regional offices, and IHS provides most of the technical assistance and technical information. Several tribes also obtain assistance from various other sources, including independent consultants, equipment manufacturers, Rural Water Associations, State agencies, and Indian organizations. Although all of the tribes visited are aware of the exis- tence of SDWA, many do not have a thorough understanding of the specific requirements of the Act, and have not developed plans to implement the 1986 Amendments. Of the reservations visited, it was observed that the majority of the population obtains its drinking water from centralized systems. Individuals not served by these community ------- - 6 - systems typically live in isolated rural housing and are served by individual wells. Ground water is the most prevalent source of drinking water on all of the reservations visited, accounting for over 95% of the raw water sources. In cases where bacteriological contamination occurs, it can most often be attributed to problems in distribution systems rather than the quality of the raw water supply. Among surface water systems, the potential for contamination by pathogenic organisms (i.e., protozoa, viruses) is also substantial. Problems typically result from cross-contamination from sewage lines or septic drainfields, service disruptions due to flooding, and improper operation and maintenance of the system. Except for tribes on the Colorado River and the mountain- ous regions of Arizona, most of the tribes visited experience seasonal water shortages and few have alternative water supplies. Regional summer droughts in Washington State, for example, result from increased water usage by summer resorts and the seasonal fish-processing business. Summer shortages in Southern California can be attributed to year-round distribution problems that are exacerbated by increased summer demand, water loss, and a lack of awareness of the need to conserve water. Water loss is attributed to poor household plumbing and leaking distribution systems and accou-nts for a substantial amount of water shortage. ------- - 7 - Most of the tribes recognize, the need to develop alternative sources and many are devising plans to search for new sources ; with the assistance of IHS and the Bureau of Indian Affairs 1 ! (BIA). I FINDINGS AND CONCLUSIONS { Organizational Structure of Tribal Governments j o Tribes may wish to re-organize their water system ! operations by assigning a manager who is responsible for overall operation of a system (financial operations and water delivery). Tribes may also wish to establish an environmental management office that oversees the water systems, monitors compliance with federal and state regulations, and reports results to EPA and IHS. , o Smaller tribes might consider working together and | employing one operator who would be responsible for • operation and maintenance for several tribes in the same general area. This individual would visit the water systems on a regular basis and ensure adequate and preventive water system services to the tribes. Sources of SDWA and Technical Information o ' With the cooperation of IHS and various Indian organi- zations, EPA could develop materials and training pro- grams concerning SDWA, the Amendments, and the regula- tions which present, in simple terms, what tribes need to do in order to comply with the Federal regulations, and why it is important to do so. Role of EPA o Tribal compliance with SDWA could be improved if tribes were visited by the EPA drinking water coordinator on a regular basis to assess compliance, address tribal concerns/inquiries, and provide the most current regulatory information. ------- - 8 - o EPA should ensure that the individual(s) in each Region who .serve as a point of contact for tribes are recognized by the tribe as the one who can supply information on a variety of environmental programs. o EPA Regional offices may wish to emphasize the impor- tance of protocol when dealing with the Indians. An understanding of tribal environmental concerns, a familiarity with the conditions of the water systems, and a sensitivity to tribal customs and lifestyles could improve working relations between the tribes and the coordinators. Adequacy of Water Systems and Operation and Maintenance o The financial status of the tribal community drinking water systems could be improved if tribes considered implementing an independent mechanism such as the collection of monthly utility fees, separate from the demands on tribal resources, to cover operation and maintenance expenses. o EPA and IHS need to continually emphasize the importance of routine and preventive maintenance in order to reduce the risk of equipment failures and potential contamina- tion incidents. Need for Alternative Water Supplies o Tribes and IHS may be able to conduct studies to identify the availability of alternative supplies and methods by which the sources may be developed. o Where feasible, tribes should be encouraged to negotiate with municipalities or local utilities to obtain water in emergency situations. ------- CHAPTER ONE INTRODUCTION ------- I. INTRODUCTION Section 302(e) of the 1986 Amendments to the Safe Drinking Water Act (SDWA), required the Environmental Protection Agency (EPA), in cooperation with the Indian Health Service (IHS), to conduct a survey of drinking water on Indian reservations, identifying drinking water problems and the need, if any, for alternative drinking water supplies. The purpose of this report is to address these requirements and to identify how existing information and technical assistance programs can be used more effectively to meet the drinking water needs of American Indians living on reservations. In addition, the Study Team and EPA Regional Office personnel provided tribes with additional information on current efforts to,implement the 1986 SDWA Amendments. Also, they were able to gather current information on the tribes' intent to apply for primacy. The Study Team visited 24 reservations located throughout 6 IHS Areas (see Appendix A). Objectives The specific objectives of the study were to: o Assess the rate of non-compliance with the National Primary Drinking Water Standards on Indian reservations; o Describe Indian drinking water systems and evaluate the adequacy of associated operation and maintenance practices; o Identify tribal actions designed to improve compliance and address water quality problems; o Characterize the need for and the availability of alternative drinking water supplies. ------- 1-2 o In addition to the above objectives, EPA used this opportunity to diseuss the SDWA and its Amendments, tribal eligibility for primacy as well as tribal interest in applying for primacy. The IHS assisted in establishing the appropriate protocol for the study, provided the Study Team with access to the IHS Sanitation Facility Data System (SFDS), and collected detailed information on all drinking water systems which was used to supplement SFDS information. The study involved two phases. In Phase I, the Study Team integrated the EPA and IHS data bases to develop information on the compliance status and condition of community drinking water systems on Indian reservations. In Phase II, a field study was conducted to review and confirm information in the data bases, to obtain information on drinking water quality problems and alternative sources, to discuss tribal government structure and water system operations, to characterize the relationship between tribes and the Federal government, and to communicate information on the new SDWA requirements. Phase I - Data Base Integration A significant aspect of this study involved analyzing and compiling the information in the EPA and IHS automated data base systems which differ in several aspects. ------- 1-3 FRDS contains information on the characteristics of each public water system (e.g., population served, capacity, source, and type of treatment) and the SDWA compliance rates for Indian community water systems located on reservations in eight EPA Regions. The two remaining EP* Regions do not contain Indian systems. SPDS contains information concerning the operation and maintenance adequacy, population, water utility rates, SDWA compliance, and "unmet needs." "Unmet needs" are defined as the total identifiable need for sanitation facilities for a community in terms of dollar volume and number of homes to bring that community/existing sanitation facility up to a level of feasible and desired service commensurate with accepted public health standards and EPA regulations. Although this information was reviewed throughout the site visits, it should be noted that these figures had not been updated in anticipation of the additional costs which would be incurred by systems in order to comply with the 1986 SDWA Amendment requirements and therefore were not used to a large extent in the data analysis. The Study Team integrated these two data bases to develop a comprehensive data base of drinking water systems on Indian reservations. Water systems from FRDS were matched with water systems in SFDS based on a unique identification number, the public water system identification number (PWS ID), assigned by EPA to each water system. IHS has adopted the EPA PWS ID ------- 1-4 number as its unique sanitation facility code number. In addition/ information on each drinking water system that was collected by IBS was used to verify the integrated data base and to supplement the information managed in FRDS and SFDS. The integration of these two information systems provided for the characterization of compliance problems and the adequacy of system operation and maintenance programs. Phase II - Field Studies Neither FRDS nor SFDS provides information related to the cause or nature of drinking water system problems, or tribal strategies foj obtaining SDWA information. In order to obtain this information, the Study Team visited 24 reservations and rancherias located in various parts of the U.S. The purpose of these visits was to obtain information; to identify the procedures tribes have implemented to provide an adequate supply of potable water and to determine the source of training and technical assistance for each tribe. In addition to offering first-hand observations of the operation of drinking water systems on reservations, the field visits also served to verify the technical data obtained from FRDS and SFDS. Methodology The methodology involved the following tasks: o FRDS and SFDS data were obtained for each water system located on an Indian reservation. o An integrated data file was developed using the FRDS and SFDS data supplemented with information obtained directly from the tribes. ------- FIGURE 1-1: HIS AREA DESIGNATIONS Billings Aberdeen Portland California Phoenix Tucson Navajo Nashville i tn Albuquerque ------- 1-6 o A candidate list of reservations for site visits was developed using information from the integrated data file, input from fwo Area offices, and input from the EPA Regional offices. In addition, all tribes responding to the letter were included in the list of candidates. o A group of reservations was selected for site visits according to a set of selection criteria including geographical location, willingness to participate, and characteristics of the water systems. o The selected reservations were contacted by EPA Regional office staff, IHS Area staff, and by EPA Headquarters to obtain their permission for the site visit and to encourage their cooperation. Only tribes electing to participate were visited. The site visits to six states were conducted during August 1987 and enabled the Study Team to acquire a firsthand perspective of water system facilities and discuss relevant topics related to drinking water quality. Each site visit consisted of a series of meetings or discussions with the IHS field staff, the EPA Drinking Water Coordinator, a representative of the tribal > leadership, a representative of the tribal utility authority if one existed, and at least one system operator. The IHS • field staff and EPA Regional staff met with the Study Team prior to the meetings with tribal representatives to verify the existence of systems identified in the data base and to obtain additional information on these systems. Information pertaining to water systems in the area and the IHS1 and EPA's perspective on the conditions and needs of the water systems were also discussed. In cases where representatives from the tribal council were unavailable, the information was collected ------- 1-7 from utility authority personnel and the water system operator A summary of the information obtained during each site visit was sent to the appropriate tribe for validation and the submission of additional information was encouraged. Both IBS field staff and EPA Regional staff were also given an opportunity to comment on these summaries. Remainder of the Report Data Analysis Section; presents a summary of the demographics of the reservations, characteristics of the water systems, com- pliance information, adequacy of the operation and maintenance, and the interrelationships among these factors. Site Visit Analysis Section; presents an overview of the demo- graphics and organizational structure of the tribal governments, identifies the source of. regulatory and technical information, discusses tribal relationships with EPA and IHS, describes sources and adequacy of water systems, the. need for alternative water supplies, and adequacy of operation and maintenance practices. This section also includes suggested improvements based on the Study Team's observations and findings. Findings and Conclusions Section; presents the findings which the tribes, EPA, and IHS may consider to help lead to improved quality of drinking water on Indian reservations. ------- CHAPTER FOUR FINDINGS AND CONCLUSIONS ------- IV. FINDINGS AND CONCLUSIONS This chapter presents the Study Team's conclusions con- cerning drinking water quality on Indian reservations, the need for alternative supplies, and actions that tribes, IHS, and EPA may undertake to improve and ensure quality drinking water supplies on Indian reservations. Based on the absence of reported waterborne diseases on the reservations visited, and limited MCL violations reported in FRDS and confirmed by the site visits, the overall quality of drinking water supplied by community systems owned and operated by Indian tribes and located on Indian reservations across the nation generally compiles with Federal drinking water regulations. There are four Areas which deviate from this generalization due to the high number of violation incidents. The Aberdeen, Billings, and Portland IHS Areas all recorded a significant percentage of systems with monitoring violations (see Figure 2-5). The importance of monitoring for contaminants is the cornerstone of detecting health threats posed by drinking water. The California and Tucson Areas have more serious problems with the high percentage of systems with microbiological violations. Because this percentage is so substantial, it also indicates that these Areas are more susceptible to outbreaks of waterborne diseases and other related health threats. In general, the ------- 4-2 fact that Indian systems appear to pose no particular risk to health, on the basis of- t'ne-compl iance data, does not mean that these systems are without problems. In fact, these systems have many of the problems typical of small Indian and non-Indian water systems overall. These conclusions are supported by the information gathered during the site visits to 24 reservations located in 6 IHS Areas. On a national basis, very little information is available concerning the extent to which Indian community drinking water systems are contaminated with organic chemicals, pesticides, or metals. Information in FRDS is incomplete for these contaminants. During the site visits, the Study Team was pre-sented with information concerning sampling and analysis that was conducted for organic chemicals, inorganic chemicals, and radionuclides. Due to the fact that this violation information in FRDS is not current, the water quality assessment was based solely .on the frequency of reported microbiological contamination problems. Based on the information which was accessed, the Study Team concluded that among ground water systems, which were the most prominent source for the Indian systems, microbiological contami- nation can most often be attributed to problems in distribution systems, rather than problems with the raw water supplies. The lack «">f preventive operation and maintenance procedures is often a major contributing factor to microbiological contamination, as ------- 4-3 are problems resulting from cross-connection from sewage lines or septic drainfields, service disruptions due to flooding, and improper operation and maintenance of the systems. Tribal Organization and Leadership General observations made during site visits and conclu- sions drawn from discussions with tribes, IBS and EPA Regional office staff indicate that the attitude of the tribal govern- ment has a substantial influence on the operation of tribal water systems. Tribes investing a noticeable amount of effort and funding into their water systems generally maintain a system which will deliver a satisfactory supply of drinking water, even though the resources, equipment and trained operators available may be minimal. More often than not, if the tribal leadership demonstrates a concern for the. operation and maintenance of the system, this attitude will be carried .through to other tribal members and proper attention will be given to the upkeep of the water system. In addition, it was observed that tribes that have formal operation and maintenance organiza- tions and good tribal support appear to have a high SDWA compliance rate because the water system receives a concentrated amount of attention on a regular basis. Although it is apparent that a number of factors influence the quality of drinking water supplies, the single most signifi- cant one is the economic stability of the tribe. A stable, well ------- 4-4 established budget allows the-tribes to devote the resources to fully maintain and repair the systems, rather than funding short-term solutions to problems that may recur later and increase in severity. A second, and perhaps more difficult issue affecting the water system operations is the attitude of tribal members concerning the provision of water and the way it affects the method of funding for the water system. Throughout the site visits, several references were made to the fact that there is often an unwillingness to pay for drinking water on reservations, a belief which is based on the idea that water is a natural resource and should be provided free of charge. It is often the case that tribal members do not understand that there are costs associated with system maintenance and the delivery of potable water; consequently, any fees which are imposed to help support the water system are not well received by tribal members. This difficulty is enhanced by the fact that because of familial relationships, most tribes are not willing to stop the delivery of water to tribal members who do not pay the fees. Because the attitude and organization of the tribal govern- ment often has a substantial influence on water system operations, several strategies related to the organizational structure of the tribal utilities or tribal oversight offices, and sources of funding could be considered which would improve the tribes' ------- 4-5 ability to provide safe drinking water. One approach would be to appoint a manager who is responsible for overall operation of the water systems (including both financial operations and water delivery) and all other utilities. Depending on the number of homes and businesses receiving water, the manager could have two deputies, one in charge of finances and one in charge of operation and maintenance. Smaller systems might consider employing one operator capable of performing operation and maintenance for several tribes located near one another. This would ensure the detection of problems tht may arise before they become more severe. Finally, tribes could consider developing a stringent preventive maintenance program to ensure the integrity of the water system, reduce water shortages through periodic equipment checks,and leak detection, and realize long-term savings of capital outlays. Tribes that have the financial capabilities may want to consider establishing environmental manager positions or tasking the planner with the job of overseeing the water department. It should be noted that the problems that exist with drinking water systems on Indian reservations are not unique to Indian tribes. Small non-Indian community water systems (defined as systems serving 25 to 3,300 persons on a regular basis) as a whole experience many of the same problems that are documented in this study and share a number of characteristics common to Indian community systems. ------- 4-6 The Wade Miller study LThe Nation's Public Works: Report on Water Supply - May 1987), observes that small water systems operate on a marginal basis, with inadequate operational and managerial resources to correct deficiencies. Owners/operators of these systems are often unable to respond effectively to emergencies or the need for unplanned improvements and yet are expected to deliver safe and dependable supplies of water to consumers consistently. These problems are identical to those observed on the reservations. Despite the deficiencies encountered by Indian community water systems, most tribes are able to deliver drinking water that meets drinking water standards. While similarities exist between the conditions of Indian and non-Indian small water systems, there is one important distinction. Indian land is held in trust by the Federal government for the.benefit of Indian Tribes, and within Indian Reservation boundaries, such land may be subject to tribal government jurisdiction. The unique status of Indian lands is recognized in the SDWA and other public health programs. The effect is that many State and county regulations are not enforceable on Indian lands. In particular, regulations governing construction and location of solid waste disposal facilities or septic tank/drainfield systems are the responsi- bility of State and local governments. These facilities can have adverse affects on water systems through ground water contamination. In addition, EPA is not responsible for approving construction plans for public water systems on Indian lands (as ------- 4-7 States do within their jurisdictions) nor for enforcing recommen- dations made in sanitary survey reports which would help alleviate operation and maintenance problems. While it is evident that a substantial amount of technical assistance from IMS has a positive impact on system performance, IHS does not have enforce- ment or regulatory authority. Without external pressure on Indian tribes to comply with such regulations, Indian Tribes bear a greater responsibility for ensuring adequate and safe drinking water. Treatment of Water Systems Based on the absence of reported disease outbreaks and the number of reported microbiological MCL violations in FRDS, the overall quality of community drinking water supplies on Indian reservations does not appear to pose a substantial human health threat. Again, it should be noted that violations may have occurred which were not reported, and therefore not accounted for in this analysis. Information derived from the site visits and an analysis of the data in FRDS and SFDS however, indicates that reported/investigated incidents of waterborne diseases are few and are mostly limited to the IHS Aberdeen and California Areas. In California's case, additional factors such as system size, structural deficiencies, and lack of preventive operation and maintenance also have an impact on the quality of finished water. ------- 4-8 In order to ensure the delivery of safe drinking water, treatment is required for all surface water sources and some ground water sources. Because the tribes have limited financial resources and training opportunities, treatment systems are often difficult for them to operate and maintain. There are methods which might be considered to overcome difficulties with implementing treatment techniques, particu- larly for tribes with drinking water systems that require treat- ment beyond chlorination. These water system operations would benefit from additional operator training, technical assistance, and funding to assist them in effectively and efficiently operating their systems. In cases where it is not already done, EPA and IHS should encourage the tribes to perform routine and preventive system maintenance to help alleviate•recurring problems and reduce .the risk of serious equipment failures and potential contamination incidents. A second approach is to provide additional resources for training and educational programs tht emphasize the importance of routine monitoring and recordkeeping and encourage them to develop monitoring schedules according to the SDWA requirements. Similar to the status of compliance rates among all small systems, the overall rate of compliance among Indian drinking water systems could be improved. Recordkeeping would serve both as a reminder to the tribes to conduct monitoring and as ------- 4-9 a tracking mechanism for EPA and IHS. Adequacy of Operation and Maintenance/Financing The adequacy of operation and maintenance activities varies considerably from tribe to tribe as a result of varying degrees of tribal emphasis, system size, economic status, operator training, and design of the system, among other factors. It was observed that larger reservations having one large system which serves the majority of the population tended to have a higher adequacy rating than smaller, less-populated reservations with a few, smaller water systems. It seems obvious that of all the factors affecting adequacy ratings, the most important is the method used to finance water system operation and maintenance. There is a definite relationship between adequacy ratings and t'he method of .financing, a conclusion confirmed through discussions with various representatives .during the site visits. Water systems supported through the collection of user fees exhibited the highest adequacy ratings on the whole; however, user charges are not easily administered by all tribes. Tribal governments often cite tribal members' resistance to fee payment as the cause for the lack of established fee charges or collection actions. This opposition might be over- come through the use of tribal public awareness campaigns aimed at educating the tribal members as to the reason they need to pay for the delivery of safe water. One tribe in the Phoenix ------- 4-10 area has published advertisements in the local newspaper that inform tribal members that the water in the local river is free, but if they want safe drinking water piped to their homes they need to pay for that service. To ensure an equitable charge for potable water, tribes that have metered water systems would benefit from routine meter repair and maintenance at all service connections. For those tribes having financial capabilities to maintain meters and the operator to monitor them, metering can be helpful in detecting water loss or leakage that is a significant problem for many of the systems covered during the site visits. In cases where the "water systems must rely, to some degree, on general tribal funds, tribes should consider establishing a mechanism independent of reliance on other tribal resources, to fund the water systems. Monthly utility fees would be an appropriate mechanism for generating revenues. Utilizing IHS assistance, tribes could conduct rate studies of the water systems to determine what fees should be charged for water usage. Fee structures, if enforced, would ensure that collec- tions cover all operation and maintenance expenses. Tribal government enforcement of fee payments has proven to be effective for many tribes and should be considered by others. Tribes could further encourage operators to seek training and gain more knowledge of their systems by allowing utility ------- 4-11 directors to provide financial incentives to operators who meet specified training and certification milestones. In areas such as California, where operators are part-time volunteers, tribes might consider pooling their resources in order to hire a full-time salaried operator who can serve several tribes. Because the majority of tribes are small and do not maintain complicated systems, a full-time operator serving several tribes would be more likely to have the time and expertise to maintain the water systems than a part-time volunteer who is likely to have many other obligations. Need for Alternative water Supplies It was evidenced throughout several site visits that summer water shortages and limited storage capacity are common problems on many Indian reservations. Many tribes have already investigated and identified future drinking water needs based on planned or anticipated population growth and development. In order to ensure an adequate supply of drinking water to accompany this expansion, it is important that the tribes and IHS continue conducting studies to assess the actual need for additional capacity and storage and the methods by which they may be able to develop these necessary sources. Although several tribes visited had conducted similar studies with IHS assistance, tribes that have not pursued these options would benefit from this information. If existing water resources are not sufficient to meet future needs, plans could be developed to identify ------- 4-12 additional water supplies and-increase storage and distribution capabilities. If no alternative sources of drinking water can be identified on tribal lands, tribes might consider alternatives such as cooperating with local municipalities or water districts to acquire additional sources of water. One of the puget Sound tribes resolved this problem by trading sewage treatment services for drinking water supplies. Where sovereignty issues can be negotiated, tribes which have an abundant water supply might consider selling it as a way of generating revenues to operate and maintain their systems. SDWA Information/Technical Assistance Based on the information collected during the site visits, Indian tribes have received some information concerning the Safe Drinking Water Act (SDWA) and the Amendments. While most tribes are aware of the statutory requirements, very few have a thorough understanding of the existing regulations or are aware of the specific provisions of the Amendments. At the time the site visits were conducted, a majority of the tribes indicated that they were not taking steps to implement the requirements of the Amendments by making plans to upgrade their systems. EPA Regional offices are the primary source of the SDWA information, although, the information provided often does not reach the person or persons directly responsible for the ------- 4-13 drinking water system. This is a result of the information being sent to the tribal office and not always being forwarded to the system planners or to the water system operators. Although most tribes are committed to providing an adequate supply of drinking water, they expressed a need for a clearer, more simplified explanation of the SDWA legislation and regula- tions as it applies to their operations. In accordance with the terms of the Interagency Agreement (IAG) between IHS and EPA, EPA could consider two approaches to help the tribes gain a better understanding of the SDWA, the 1986 Amendments, and the National Primary Drinking Water Regulations. One approach entails developing materials in cooperation with IHS and Indian organizations (e.g., Intertribal Council of Arizona (ITCA)). These would present in simple terms what tribes need to do to comply with the Federal regula- tions and the reasons why it is important to comply. Involving IHS and organizations like ITCA in the preparation of these materials could enhance the effectiveness of the presentation by tailoring it to the concerns of tribal leaders and water system operators. A second approach might involve the development of training programs offered by EPA and/or IHS to tribal leaders and water system operators explaining the SDWA, the regulations, and the need for monitoring to ensure the quality of the drinking water. If the training is designed such that tribal leaders and water ------- 4-14 system operators could help tra-in and educate their tribal members, problems with low fee collection rates, loss of water due to leakage, and lack of preventive maintenance could be overcome. The IAG, which was developed to coordinate agency efforts to provide assistance to the Indian communities, stipulates that IBS will provide the tribes with technical assistance and training while EPA provides information on the SDWA, monitors compliance, and enforces the SDWA (see Appendix D). In some cases, EPA provides technical assistance or consults with circuit riders or state field office personnel. Several other organizations provide assistance, including independent con- tractors, equipment manufacturers, state agencies, Inter-Tribal organizations, and rural water associations. Generally, the available techni-cal -assistance seems to be adequate to meet the needs of the tribes, although a greater amount of training classes, workshops and technical assistance would prove bene- ficial in areas such as California. Similar to the kind of assistance offered to all small non-Indian community water systems under state jurisdiction, technical assistance is provided to Indian tribes through routine inspections and sanitary surveys or in response to specific problems. In the same way as EPA and IHS are responsible for a comprehensive approach to delivering technical assistance to Indian community ------- 4-15 water systems, primacy States are likewise responsible for developing similar programs to support the small non-Indian public water systems under their jurisdiction. IHS has taken a very active role in providing tribes with technical assistance. Service unit sanitarians, utility consultants, and engineers work directly with the tribes on operation and maintenance problems and in many cases are able to provide assistance on a daily basis. Some IHS Areas also employ Operation and Maintenance Coordinators whose sole responsibility is to work with the tribes to solve problems and help the tribes develop the capabilities necessary to manage their systems independently. Roles of EPA and IHS The respective roles of EPA and IHS have been defined under the IAG and the Memorandum of Understanding (MOU) which was developed in 1986 (see Appendix D). Each EPA Regional office has been encouraged to develop a supplemental agreement with its local IHS Area office to further define the roles of each Agency in ensuring environmental health on Indian reservations. EPA and IHS levels of involvement with Indian tribes vary according to the MOU's developed and the needs and status of the tribes under their respective jurisdictions. Although the level of interaction and coordination between EPA and IHS differs among the EPA Regions, compliance with the SDWA appears to be better in Regions where EPA has a strong, technical presence. ------- 4-16 While this level of EPA involvement is clearly desirable, limited resources, staff ability, and EPA/IHS agreements limit the amount of EPA presence nationwide. In Regions where EPA cannot maintain a strong technical presence or a steady line of communication due to geographic limitations, technical assistance is primarily provided by the IHS individuals stationed on or near each reservation on a routine basis. As suggested in the MOU, EPA may wish to designate one or more individuals within each Region to serve full time as a point of contact for tribes seeking information on eanvironmental programs. It might be most effective if these individuals have experience working with Indian tribes and are familiar with a wide range of Agency programs and are recognized by the tribe as a source of information and assistance. The credibility of the Indian Drinking Water Coordinators contributes to EPA's success in working with the tribes. One way to improve the credibility of the coordinator's position is to appoint an individual who has background in or is familiar with drinking water supply technology, has a basic understanding of the analytical requirements of the SDWA, and a thorough knowledge of the SDWA, the Amendments, and the regulations. Credibility would be turther enhanced if the coordinator demon- strated a familiarity with other relevant environmental regula- tions and was able to refer the tribes to EPA, State, or local ------- 4-17 government representatives who can also assist them with these issues. ~ The Regional offices may wish to emphasize the importance of protocol when dealing with the Indians. As suggested in the IAG, the relationship between EPA and the tribes could be more positive if EPA solicited IHS input regarding communications with the tribes. An understanding of the tribal history with regard to environmental issues, a familiarity with the present condition and construction of the water system, and a sensitivity to tribal customs and lifestyles could improve tribal acceptance of the coordinator. The TAG also stipulates that one of EPA's major objectives is to coordinate training and ensure that tribes are offered ample training opportunities. EPA and IHS should coordinate with other organizations to develop training programs specific- cally designed to enhance tribal water system operators' familiarity with their systems, specific treatment methods, and to point out the benefits to acquiring state certification. Training targeted to the type of water systems operated by a tribe is more effective than standardized training programs dealing with general system operations because it would address specific problems experienced by the tribe. To the extent possible, training should be conducted on reservations with the equipment the tribal operators use. Technical assistance is available from sources outside ------- 4-18 of EPA and IHS, as well. For_instance, in several states, including New Mexico and Minnesota, the State rural water associations have hired circuit riders who travel to the reservations and work directly with Indian tribes. The circuit riders provide the necessary technical assistance and help train the water system operators in the proper operation of the equip- ment existing on the reservation. The national Rural Water Association is encouraged to work with the states and IHS to expand the Circuit Rider Program to other states in order to provide additional assistance to tribes with specific problems and to provide additional training on the equipment used by the tribes. Summary The provision of technical assistance and SDWA information • by IHS and EPA and the degree to which each agency interacts with the tribes greatly impacts tribal attitudes toward their water system. Consistent emphasis on routine maintenance and attention to water quality definitely has a positive impact on system performance when combined with other factors. For instance, the way in which each EPA region has structured and supported the Indian Drinking Water Coordinator position has a noticeable influence on the drinking water quality and system operation on each reservation. Where the level of EPA involve- ment is minimal or where additional assistance is requested by ------- 4-19 the tribes, EPA might consider developing new mechanisms to assist the tribes and improve its outreach. * The EPA FRDS data base, on which a large portion of the assessment of drinking water quality problems was based, does not contain enough current information on compliance data and inventory. For example, there are cases where the inventory is out of date, data for Indian water systems is missing, and information on systems which have merged or are no longer in operation is not current. An understanding of the nature and magnitude of drinking water quality problems on Indian reser- vations could be enhanced by the maintenance of an up to date inventory of Indian community drinking water systems. In order to overcome some of the EPA FRDS data limitations, IHS Headquarters requested that its Area offices provide addi- tional information.on. all drinking water systems serving Indian tribes. This additional information was used to verify the FRDS and SFDS data, identify data gaps, and supplement information that was missing from FRDS. In addition, the Study Team identi- fied other sources of information on Indian drinking water systems. Several Regions maintain independent information systems that track data on Indian drinking water systems. Based on an analysis of FRDS data for the Indian drinking water systems, it does not appear that these systems are used to update FRDS on a regular basis. Operation of independent information systems is appropriate for day-to-day operations, but the EPA ------- 4-20 Regional offices need to update FRDS on a quarterly basis, just as primacy States routinely do. In order to develop a single comprehensive data base of Indian drinking water systems, the information managed by the Regions, FRDS, SFDS, and the IHS survey should be completely integrated. This would provide a thorough data base that could be a valuable tool in monitoring the changes in drinking water quality on Indian reservations as the 1986 SDWA Amendment regulations are promulgated and implemented. IHS could also use the data base to reevaluate the unmet needs of Indian community drinking water systems in light of the 1986 SDWA Amendments. Many of the tribes visited as part of this study expressed interest in primacy. Most-did not have a clear understanding • • of primacy, nor of the requirements to obtain primacy. While there are a variety of reasons why tribes may be interested in obtaining primary enforcement responsibilities for their water systems, most tribes believed that it was a way to maintain sovereignty over their water systems and obtain financial assistance in developing environmental planning capabilities, which are high priorities among many tribes. Although they lack the resources to establish a strong environmental planning organization, many tribes are currently active in planning activities and maintain a strong desire to expand their ------- 4-21 capabilities. While EPA has provided incentive for improvements through development grants in the primacy regulations, Indian tribes can be encouraged to further develop their self-sufficiency and emphasize the importance of overall environmental protection whether or not they are interested in primacy or able to qualify for it. The net result will be better operation and maintenance of their water, sewer, and solid waste facilities and better overall quality drinking water on a consistent basis. It is apparent that there is not one single factor which, if emphasized, would improve the status of Indian community drinking water supplies in and of itself. On the contrary, a combination and coordination of factors involving tribal perspectives on water quality, economic status of tribal com- munities, concise .a.nd up to date regulatory, information, and a stable relationship among tribal authorities', EPA, and IHS are necessary. While the overall conclusions of this analysis indicate that the quality of finished water is in compliance with Federal drinking water standards in most cases, there is substantial room for improvement and enhancement to other aspects of Indian drinking water systems. A variety of programs are currently being developed and implemented by EPA to address some of the existing problems with water systems- and provide assistance to tribes in prepara- tion for the new regulations. IHS continues to pursue methods ------- 4-22 of improvement which would be most beneficial to the Indian community's sanitation facilities. The degree of each agency's efforts within their respective jurisdictions indicates the level of concern and importance for the elimination of health threats posed by contamination of Indian drinking water systems, ------- ------- UNDERGROUND INJECTION CONTROL (UIC) PROGRAM TABLE OF CONTENTS: EXECUTIVE SUMMARY SUPPORTING DOCUMENTS: • Final Rule: Safe Drinking Water Act-National Drinking Water Regulations, Underground Injection Control Regulations, Indian Lands (40 CRF Parts 35,141,142,143,144,145, and 146) (SEE SUPPORTING DOCUMENTS FOR PWS PROGRAM SECTION) • Final Guidance on Implementing the Indian Primacy Rule for the PWSS and UIC Programs April 25,1989 (SEE SUPPORTING DOCUMENTS FOR PWS PROGRAM SECTION) • Wind River (Wyoming) and Uintah-Ouray (Utah) Indian Lands Programs - Fact Sheet ------- EXECUTIVE SUMMARY: UNDERGROUND INJECTION CONTROL (UIC) (40 CFR Parts 35,124,141,143,144,145,146, and 147) OVERALL PROGRAM PURPOSE The Safe Drinking Water Act (SOWA) of 1974 was enacted to protect the quality of drinking water supplies throughout the U.S. by establishing four major programs: the Public Water System (PWS), Underground Injection Control (UIC), Wellhead Protection, and Sole Source Aquifer Demonstration programs. The purpose of the Underground Injection Control (UIC) program under the Safe Drinking Water Act (SWDA) is to protect sources of underground drinking water from the improper injection of fluids through injection wells. The SDWA Amendments of 1986 allow Indian Tribes to be treated as States for purposes of administering UIC programs. These amendments establish rules and its implementing regulations for: 1. Applying for eligibility of Tribes for treatment as States; 2. Applying for and receiving Federal funding to support a UIC program approved by EPA; and 3. Applying for primary enforcement responsibility on Indian Lands. In addition, SDWA authorizes EPA to provide technical and financial support to develop and administer the UIC program. ELIGIBILITY REQUIREMENTS FOR TREATMENT AS STATES (40 CFR PART 145) Tribes may apply for treatment as States under either the Safe Drinking Water Act or the Clean Water Act. If approved, the Tribe need only submit information specific to the UIC program to be eligible to apply for financial assistance and primacy for their wells. To meet the eligibility requirements for treatment as a State, a Tribe must: 1. Be Federally Recognized. The Tribe must demonstrate that it is included on the list of Federally recognized Tribes, published by the Department of the Interior, or submit other appropriate documentation. 2. Carry out Substantial Governmental Duties and Powers. EPA defines this to mean the Tribe is performing functions to promote the health, ------- safety, and welfare of the affected population in a defined geographic area. (Examples of these functions include, but are not limited to, the power to tax, the power of eminent domain, and police power.) To address this criterion, the Tribe must submit a narrative describing: 1) its form Tribal government; 2) the types of government functions being performed; and 3) the sources of authority to perform these functions. 3. Have the Authority to Regulate the Quality of Reservation Waters. To verify that it has this authority, the Tribe must include a statement signed by the Tribal legal counsel, or an equivalent, explaining the basis for the Tribe's regulatory authority. Included with this statement should be appropriate supporting documentation, such as maps, tribal codes, and ordinances. 4. Be Capable of Administering the UIC Programs. To meet this criterion, a tribe must be reasonably expected to be capable of administering an effective program. PROGRAM RESPONSIBILITIES AND ASSISTANCE THAT STEM FROM ASSUMING THE UIC PROGRAM Primacy Responsibilities (40 CFR Part 145) Once the Tribe has completed the development phase, which can last up to 4 years, and has shown it can administer the program, the Tribe may apply for primacy. The requirements for primacy are defined in 40 CFR Sections 145.10 through 145.13. Underground Injection Control (UIC) program grant and primary enforcement responsibility regulations are currently being reviewed. The issue will be addressed in a future Federal Register Notice. Until the Tribes are able to apply for and become eligible for grant and primary enforcement responsibilities, the Federal UIC program, in 40 CFR Parts 144 and 146) will be administered by the EPA on Indian Lands which do not have existing programs. The SDWA allows flexibility to respond to the unique conditions and needs of Indian Tribes, and EPA encourages and accommodates requests by Tribes to tailor the Federal UIC programs to meet their concerns. Program Assistance If designated eligible to be treated as a State, a Tribe may apply for a development grant. Regional staff must work closely with the Tribes to clearly identify the individual needs of the Tribe and the costs. ------- A Tribe must match 25% of Federal funding unless it can show that it does not have adequate funds or in-kind contributions to meet this requirement, in which case it may be allowed to match only 10%. In addition, the grant application must address: 1. A plan to resolve any conflicts of interest between the primacy organization and the organization that owns/operates the wells; 2. Establishment and maintenance of a program to certify laboratories conducting contaminant measurements of drinking water; and 3. Development of a compliance and enforcement strategy and an enforcement agreement with EPA to respond to violations of the SWDA, National Primary Drinking Water Regulations, or the Tribe's own regulations. ------- fact sheet underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS SUMMARY INFORMATION Background The purpose of the Underground Injection Control (UIC) program for Wind River (Wyoming) and Uintah-Ouray (Utah) Indian Lands is to protect underground sources of drinking water (USDWs) from the improper injection of fluids through injection wells. Although not widely recognized, the injection of waste materials is a very common practice. The oil and gas industry operates tens of thousands of wells nationwide which reinject brine or brackish wastewater brought to the surface in conjunction with the production of oil and gas. Other types or "classes" of injection wells include hazardous waste disposal operations, industrial waste disposal wells and nuclear storage and disposal wells. Although no hazardous waste disposal wells currently operate on either of these reservations, this is a common practice in other areas of the country and one which warrants regulation. The UIC program was established under the authority of Part C of the Safe Drinking Water Act (SDWA). The SDWA requires EPA to administer UIC programs in states and on Indian Lands which do not have approved programs. These Tribal Governments have not applied for primacy over the UIC program. On May 11, 1987, EPA proposed a direct federally implemented program for the Wind River and Uintah-Ouray Indian Lands. Taking all public comments into consideration, EPA amended and published the UIC regulations in final form on October 25, 1988 (40 CFR Part 147) (53FR43084). The October 25 promulgation establishes regulations to implement UIC programs on the Wind River Indian Lands in Wyoming and the Uintah-Ouray Indian Lands in Utah. EPA has adopted the definition of "Indian country" found at 18 U.S.C. 1151, and set forth in full at 40 CFR 144.3, for the purpose of defining "Indian Lands" for the Direct Implementation UIC program. Certain additional definitions are summarized herein; specific, binding information and definitions are to be found in the appropriate, published Federal Regulations. This Summary Sheet is intended to serve as an aid to owners and operators; however, it does not substitute for the Safe Drinking Water Act or the regulations adopted pursuant to the statute. ------- -2- Definitions A few terms are frequently used in UIC program regulations. A discussion of these terms, and their applicability to the program, follows: UNDERGROUND SOURCE OF DRINKING WATER (USDW): The Safe Drinking Water Act (SDWA) protects all USOWs, whether or not specifically designated as such. The primary objective of the Underground Injection Control (UIC) program is the protection of USDWs. By definition, an USDW is an aquifer or its portion: (1) which supplies any public water system; or (2) which contains a sufficient quantity of ground water to supply a public water system; and (a) currently supplies drinking water for human consumption; or (b) contains fewer than 10,000 mg/1 total dissolved solids (TDS) and which is not an exempted aquifer. AQUIFER EXEMPTIONS; In the course of permitting wells, EPA is often requested to exempt portions of certain aquifers, or possibly entire aquifers, which qualify as USDWs. After an aquifer has been exempted, EPA will allow injections to take place that normally would be prohibited. For EPA to designate an underground source of drinking water as an exempted aquifer, the aquifer must meet the following criteria: ( 1 ) It does not currently serve as a source of drinking water; and (2) It cannot now and will not in the future serve as a source of drinking water because: (a) It is mineral, hydrocarbon or geothermal energy producing, or can be demonstrated by a permit application for a Class II or III operation to contain minerals or hydrocarbons that, considering their quantity and location are expected to be commercially producible; and/or (b) It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical; and/or (c) It is so contaminated that it would be economically or technologically impractical to render that water fit for human consumption; and/or ------- -3- (d) It is located over a Class III (see Well Classifications, belov) veil mining area subject to subsidence or catastrophic collapse; and/or (e) The Total Dissolved Solids (TDS) content of the ground water is more than 3,000 rag/1 and less than 10,000 mg/1 and it is not reasonably expected to supply a public water system. The public is encouraged to comment on all proposed aquifer exemptions. Public notice will be published in local and area newspapers for all aquifer exemption and permit actions. Public hearings will be held if sufficient interest is shown. WELL CLASSIFICATIONS; There are five classes of injection wells regulated by the UIC program. A specific well classification is made subsequent to determination of: (1) the type of fluid to be injected; and (2) the stragraphic zone (formation) into which the fluid is to be injected. Injection well classes can be summarized as follows (specific definitions can be found in the regulations): CLASS I. CLASS II. CLASS III. CLASS IV. CLASS V. Hazardous, industrial, and municipal waste disposal wells which inject below the lowermost formation containing an underground source of drinking water; Injection wells associated with oil and gas production and liquid hydrocarbon storage; Special process wells used in conjunction with solution mining of minerals; Wells which are used by generators of hazardous wastes or hazardous waste management facilities and inject into or above an underground source of drinking water [these wells are banned after May 25, 1989; see 144.13(a) (3 )] Wells which do not fall into any of the other categories, such as: recharge wells; drainage wells; septic system wells; cesspools; in situ gasification of oil shale and coal, etc. A total of 32 Class V well types are specified in the Class V Injection Wells, Office of Water Report to Congress, EPA 570/9- 87-006, September, 1987. ------- -4- Current Program EPA will be dminist' .ng these Indian Lands programs from its Denver Regi al Offi . In its administration of the program, EPA will pe. zorm the following functions: o Act on requests to exempt portions of aquifers to accommodate injection activities. o Establish and maintain a complete inventory of all wells within the outer boundaries of the Reservation. o Operate an injection well permitting program. o Provide surveillance and enforce the program over wells authorized by rule and by permit to ensure compliance with federal regulations. o Respond to emergencies. Effective November 25, 1988, any injection well not authorized by rule or by permit is unlawful. 40 CFR Part 144 Subpart C (Authorization by rule) and 40 CFR Part 147 Subparts TT and ZZ authorize the following wells for the indicated periods of time from the effective date of the program, November 25, 1988, after which time: o New wells must be permitted. o Existing Class II salt water disposal wells are authorized for up to five years. o Wells placed on shut-in (TA) status for two (2) years must be properly plugged and abandoned unless an extension is granted. o Existing Class I and III wells are authorized for up to one year. o Existing Class II liquid hydrocarbon storage and enhanced .recovery wells are authorized for the life of the well. o Except under certain very limited conditions, Class IV wells must be plugged and abandoned within the first six (6) months of the program (no later than May 25, 1989). c Injection into Class V wells is authorised by rule until requirements under future regulations become available, or until EPA determines that a specific facility should be regulated by permit. ------- -5- In the case of veils authorized by rule, the Regional Administrator may require an operator to submit a permit application at any time if he determines that: 0 The injection well is not complying with the provisions of the rule. 0 The injection well has ceased to be in the category of wells authorized by rule. o The protection of USDWs requires that the injection operation be regulated by requirements not contained in the rule (i.e. a permit). For all Class I, II, and III wells not in operation prior to November 25, 1988, the operator must submit permit applications and the well must be permitted before any further drilling, construction, conversion, or injection may begin. Whether authorized by rule or by permit, all injection well operations must comply with EPA requirements. The requirements for these programs can be found in 40 CFR Parts 124 (Permitting and Appeal Procedures); 144 (UIC Program); 146 (Criteria and Standards); the State of Wyoming, Subpart ZZ, amended with the new Sections 147.2553 and 147.2554 (Wyoming/Wind River Indian Reservation-Specific Requirements); and the State of Utah, Subpart TT, amended with the revised Section 147.2251 and the new Section 147.2253 (Utah/Indian Lands). • Owners and operators should note that application for, and receipt of a UIC permit from EPA does not constitute approval for any other State or (in the case of Federal or Indian Lands) Federal permit which may be required for a facility or project. Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (8WM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 2/6/89 ------- 0 EZDA fact sheet underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS MECHANICAL INTEGRITY TESTING (MIT) REQUIREMENT General All Class I, II, and III wells must be tested for mechanical integrity. Before a new injection well is put into operation and prior to issuance of a permit for an existing well, and at least once every five (5) years, injection wells must be tested for mechanical integrity. Mechanical integrity (MI) is defined in the underground injection control (UIC) regulations (40 CFR 146.8). The UIC requirements are summarized below: Section 40 CFR §l44.28(g)(2)(iv) - For enhanced oil recovery or hydrocarbon storage wells authorized by rule, MI must be demonstrated at least every five (5) years, when notified in writing by EPA. The owner or operator shall notify EPA at least thirty (30) days before testing (notice may be waived by EPA). 40 CFR §144.51(p) - EPA may require the owners/operators of permitted wells to comply with MI testing schedules. 40 CFR S144.52(a)(8) - A permit may require MI demonstration before injection operations begin, if the Regional Administrator suspects lack of MI. » 40 CFR §146.8 - Defines MI and specifies appropriate MI tests (see next two pages for summary of tests). 40 CFR §146.23(b)(3) - Requires MI demonstration of Class II wells at least every five (5) years. ------- -2- A well has mechanical integrity if: o There is no significant leak in the casing, tubing, or packer; and o There is no significant fluid movement into an underground source of drinking water (USDW) outside the casing through vertical channels adjacent to the injection well bore. This Fact Sheet addresses the mechanical integrity testing and reporting requirements with which owners of all oil and gas injection wells must comply. Demonstration of the Absence of Significant Leaks in the Casing, Tubing and/or Packer* Must be Made Using One of the Following Methods: o Tubing/Casing Annulus Pressure Test: Pressure test on the casing/tubing annulus of a newly drilled or converted well should be for a minimum of 45 minutes at a pressure of at least 300 psig (measured at the surface). The annulus of existing wells shall also be tested at a pressure of at least 300 psig for a minimum of 45 minutes. The annulus should be filled with a non-corrosive liquid. Pressure values should be recorded at five-minute intervals or less; a well is considered to pass the mechanical integrity test if the pressure change (greater or less than the imposed pressure) is less than ten (10) percent in forty-five (45) minutes. o Records of Monitoring Tubing/Casing Annulus Pressure; Annulus monitoring may be performed only after mechanical integrity is demonstrated by an acceptable pressure test. The positive pressure must be maintained on the annulus and pressure must be monitored at least monthly and reported annually. The annulus must be filled with a non-corrosive fluid. o Monitoring records showing absence of significant changes in the relationship between injection pressure and either flow rate or volume (for certain enhanced recovery wells only). Records must be available from time of initial injection. This monitoring may be used only for the following Class II enhanced recovery wells: (a) Existing veils vithcut packer ar.d having completed a previous pressure test; ------- -3- (b) Existing wells without long string casing, but with surface casing terminating at the base of fresh water. A monitoring program shall be established for these wells by EPA Regional Administrator which will verify absence of significant fluid movement from the injection zone into the USDW. o Radioactive Tracer Survey/Drag Method; This test is for use with wells in which the standard pressure test is not practical. Specific procedures for running the test should be submitted for review by the Regional office in advance. o Other Demonstrations; Subject to EPA approval and must be fully documented with detailed description of tests and/or monitoring records which confirms the absence of endangerment to an USDW. The owner or operator must apply methods and standards generally accepted in the industry. Demonstration of the Absence of Fluid Movement Into an USDW Through Vertical Channels Adjacent to the Injection Well Bore* Must be Made Using One of the Following Methods; o Cementing Records; Acceptable for Class II wells only; a review of cementing records will be accomplished by reviewing available data or information submitted by the operator. The cementing records must demonstrate no flow into a USDW, if cementing records are to be used for this part of the MIT demonstration. The results of a valid cement bond log (which contains the following information: i) an amplitude curve, 2) a transit time curve, 3) a full wave display, and 4) a collar locator curve) may be utilized as part of the demonstration that cementing records are adequate. o Radioactive Tracer Survey; Acceptable by itself for Class I, II, and III wells where the confining zone overlying the injection reservoir is immediately adjacent to the lowermost underground source of drinking water. It may, however, be utilized under all geologic conditions if run in conjunction with a temperature or noise log; it must be run at the proposed injection pressure. o Temperature Log; Acceptable for Class I, II, and III wells where geologic and well construction do not affect validity of results. Specific procedures must be approved by the EPA prior to testing. ------- -4- o Noise Log: Acceptable for Class I, II, and III wells where site conditions do not affect validity of results. Specific procedures must be approved by the EPA prior to testing. o Other Demonstrations: Subject to EPA approval and must be fully documented vith detailed description of tests and/or monitoring records which confirms the absence of endangerment to an USDW. The ovner or operator must apply methods and standards generally accepted in the industry. Mechanical integrity demonstration and testing notification: o Owner must demonstrate mechanical integrity at least once every five (5) years during the life of the well. EPA may require the owner to make a demonstration at any time (40 CFR 146.8). o Owner must notify EPA at least thirty (30) days prior to his scheduled nechanical integrity test date. A shorter notification time may be allowed, but only if notification will allow EPA to witness the test [40 CFR 144.28(g)]. o If EPA requests that a specific well be tested, the owner or operator will be given a reasonable period of time to schedule such test. In most cases, tests will be required within a 90-day time period. * Any noncompliance which may cause endangerment of an USDW must be reported to EPA: (a) Orally within twenty-four (24) hours; and (b) In writing within five (5) days of owner knowledge. Failure to comply with UIC regulations may result in fines of up to $10,000 per day and revocation of the operator's authorization to inject. * Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (BWM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 . 2/6/89 ------- ^ CDA fact sheet underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS AUTHORIZATION BY PERMIT General Owners of existing Class I and III wells must submit permit applications within one (1) year of the effective date of the program (40 CFR 144.31), by November 25, 1989. Owners of existing Class II salt water disposal wells must submit permit applications as expeditious as practicable, but no later than four (4) years of the effective date of the program (40 CFR 144.31), as scheduled by EPA. Existing Class II enhanced recovery and hydrocarbon storage wells are authorized for injection for the life of the well or project. (EPA well classifications detailed in 40 CFR §144.6.) All proposed injection well operators must submit UIC permit applications and be permitted by EPA before drilling, construction, conversion, or injection may begin after the effective date of this program (November 25, 1988); this includes conversion workovers, reperforations, or tubing installation. The permitting procedure for Class II wells includes the following steps: Submission of the permit application; Completeness and technical review; Issuance of the EPA draft permit and public notice; Preparation and issuance of the final permit and response to comments, where applicable; Operator demonstration of mechanical integrity and compliance with final permit conditions, and Preparation and issuance of the authorization to inject. The owner/operator must submit the original and one copy of the permit application and attachments to the Region VIII EPA Office. EPA will conduct an administrative completeness review of the application, including financial assurance. EPA may supplement incomplete application data with information from well records. ------- -2- After reviewing the application for completeness, a letter will be sent to the applicant specifying that either (1) the application is complete, or (2) it is incomplete, in which case the information needed to complete the explication will be listed and the operator will be advised of and requested to remedy the application deficiencies. If the applicant fails to complete the application within a reasonable period of time, the permit may be denied. The permit application is then reviewed for technical adequacy and a draft permit is prepared. A notice is published informing the public of the opportunity to comment on the draft permit action and to request a public hearing. (Further information on public participation activities is included in 40 CFR Part 124). At the conclusion of the public comment period, the comments will be evaluated and a decision whether or not to hold a hearing will be made. The final permit decision will take into account all comments received. EPA's final permit decision will be routed to the BLM, BIA, appropriate Tribes, and anyone submitting comments. If the permit is denied, notice of the denial shall be sent to the applicant. Upon issuance of the final permit decision, a responsiveness summary will be sent to all commenters, together with a copy of the final permit or denial letter. A final permit decision will become effective thirty (30) days after notice of a decision unless: (1) a later date is specified in the permit decision, (2) review of the permit is requested, or (3) no comments requesting a change in the draft permit have been received, in which case the permit will become effective immediately upon issuance. Construction, operation, and reporting requirements are included in the final permit. These are referenced in 40 CFR Part 146. Except for all new wells authorized by an area permit, a new injection well may not commence injection until construction is completed, the well has passed a mechanical integrity test, the operator has completed all "prior to injection" requirements, the permittee has submitted notice of completion of construction to EPA, and EPA has inspected the well and found it to be in compliance with the permit conditions. Inspection prior to beginning injection may be waived if the permittee does not receive notice from EPA of intent to inspect within thJ days from the date the permittee's notice of completed construction was received. Permit Application The permit application must be submitted using the approved forms. It must include: A description of the activities conducted by the applicant which require a permit. ------- -3- Name, mailing address, and location of the facility. Operator's name, address, telephone number, and ownership status. A list of each owner or tenant of the land within one fourth (1/4) mile of the site. A listing of all other State or EPA issued permits pertaining to the subject facilities. A map extending two (2) miles beyond the property boundary showing all injection wells, springs, surface water bodies and drinking water wells listed in public records or otherwise known to the applicant within one half (1/2) mile of the property boundary. A tabulation of construction data on all identified wells penetrating the injection interval, including hole size, casing details, top of cement, plugging details, if applicable, etc. For proposed new wells, plans for testing, drilling, and construction. For wells to be converted, copies of the daily drilling and completion records, if available. Plans for corrective action of improperly completed or abandoned wells within the area of review, if necessary. Operating data (injection pressures and volumes). Description of proposed monitoring equipment. Geologic and hydrogeologic data on injection and confining zones. Identification of all USDWs (formation, depth, and total dissolved solids (TDS) content of water in the aquifer. Injection zone water quality. Injected fluid water quality. Construction data (including a schematic of the well). Proof of financial responsibility. ------- -4- Available logging and testing data for existing wells (including results of mechanical integrity testing). - Plugging and abandonment plan. Area of Review The area of review for Class II permits is defined by a fixed radius around the well (of not less than one fourth [1/4] mile). Area Permits Area permits may be issued if the wells are described and identified by location in the application; if the wells are in the same well field, facility site, reservoir, project, or similar unit in the same state; operated by a single owner or operator and used to inject fluids other than hazardous wastes. This Fact Sheet is intended to serve as an aid to owners and operators; however, it does not substitute for the Safe Drinking Hater Act or the regulations adopted pursuant to the statute. Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (8WM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 2/6/89 ------- EPA fact sheet underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS EXISTING ENHANCED RECOVERY AND HYDROCARBON STORAGE WELLS General For all EPA administered Underground Injection Control programs, injection wells must be authorized to inject fluids for enhanced oil and/or gas recovery or for hydrocarbon storage. Wells can be authorized by rule or by an individual or area permit. Existing enhanced recovery and hydrocarbon storage veils are authorized to inject for the life of the well provided they meet the program requirements described in 40 CFR §144.22. These wells must comply with the operating, monitoring, and reporting requirements found in 40 CFR Part §144.28. This fact sheet addresses monitoring, reporting, and operating standards that owners or operators of existing oil and gas enhanced recovery and • hydrocarbon storage wells, authorized by rule, must comply with. All new wells must be permitted by EPA prior to construction or conversion. This Fact Sheet is intended to serve as an aid to owners and operators; however, it does not substitute for the Safe Drinking Water Act or the regulations adopted pursuant to the statute. Owners and operators should note that application for and receipt of a UIC permit from EPA does not constitute approval for any other State, Tribal, or Federal permit which may be required for a facility or project. For purposes of the UIC program, EPA has classified injection wells into five classes. Class II includes enhanced recovery and hydrocarbon storage wells. Rules for Class II Enhanced Recovery and Hydrocarbon Storage Wells NOTICE PERIODS ARE EFFECTIVE UPON THE EFFECTIVE DATE OF THE REGULATIONS (November 25, 1988) o Owners or operators must notify EPA thirty (30) days prior to the scheduled date for running a mechanical integrity test. ------- -2- Operators must notify EPA by certified mail at least forty-five (45) days prior to in: . iting plugging and abandonment. Owners or operators shall notify iPA vithin sixty (60) days of the date injection has terminated. The veil must be plugged vithin two year3 after termination of injection. The Regional Administrator may extend the time to plug in certain cases. Owners must report change in ownership of a well within thirty (30) days of transfer. Owners and/or operators must prepare and submit a plugging and abandonment plan no later than one year after the effective date of the program. The plan must include type and number of plugs to be set; manner in which plugs will be set; location of plugs; estimated cost of plugging; and type, grade, and quantity of cement to be used. Operators must report any noncompliance orally within 24 hours of detection and in writing within five (5) days. Well casing and cementing must meet applicable state requirements that were in effect at the time of construction (completion). All corrections must be completed within one year of owner/operator notification. Owners must establish financial responsibility to close, plug and abandon the injection well and submit evidence to EPA of such responsibility no later than November 25, 1989. Operators shall determine the nature (Specific Conductance, TDS, etc.) of injected fluids initially, when the nature of injected fluids is changed, or when new constituents are added. » • Operators must monitor the injection pressure, cumulative volume and flow rate at least weekly with results recorded at least monthly and reported annually. Annual reports must be submitted to EPA by January 15 of the following year. ------- -3- Operators must submit an annual report including monthly monitoring figures for injection pressure (psig) and rate (bbl/day). Annual reports must be submitted to EPA by January 15 of the following year. The owner or operator must demonstrate mechanical integrity at least once every five (5) years during the life of the well. EPA may require the owner or operator to make the demonstration at any time. Wells where packer has been unseated will be scheduled for a repeat mechanical integrity test (MIT). Shut-in and temporarily abandoned wells are subject to the mechanical integrity requirements. Owners or operators must submit well inventory information on each well within one year of program implementation. Owner/operator shall retain all monitoring records for three (3) years, unless enforcement action is pending, and then until three (3) years after the enforcement action has been resolved. NOTE: Failure to meet any of the above listed requirements may be grounds for enforcement action including penalties. Major Modifications to Existing Wells Operators of existing wells must obtain a UIC permit from EPA prior to making major modifications. Major modifications include: Any change in the currently authorized injection zone (i.e. perforating the well casing or taking other action to allow injection into a formation other than the current injection zone). Any other changes except minor modifications. Operators are required to notify EPA prior to making minor modifications. The Regional Administrator may require the operator to obtain a permit for such modification in certain cases. EPA will notify operators of changes in the regulatory requirements and more frequent monitoring, testing, and reporting requirements. Minor modifications include: ------- -4- Changing the injected fluid to some fluid other than those identified on the operator's injection veil inventory verification form (e.g. changing the injected fluid from salt water to steam, CC>2 or a polymer). Any change in fluid, however, must be within the definition of a Class II injection well (40 CFR §144.3). More frequent monitoring, testing, or reporting prescribed by EPA to assure that the injection activity will not allow movement of fluid into a USDW (40 CFR §144.12) [action initiated by EPA]. Amendment of a plugging and abandonment plan. Transfer of ownership. Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (8WM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 2/6/89 ------- fact sheet underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS [40 CFR 147 Subparts TT and ZZj INVENTORY REQUIREMENTS FOR RULE-AUTHORIZED WELLS General As specified in 40 CFR Part 144.26, owners or operators of all injection wells authorized by rule shall submit inventory information to the Regional Administrator of the U.S. Environmental Protection Agency (USEPA). This fact sheet addresses the requirements for inventory information that must be submitted by owners or operators of rule-authorized injection wells. This Fact Sheet is intended to serve as an aid to owners and operators; however, it does not substitute for the Safe Drinking Hater Act or the regulations adopted pursuant to the statute. Coverage & Submittal Deadline . Rule-authorized wells are those injection wells which were in operation prior to November 25, 1988. Inventory requirements apply to all types of Class II injection wells. AUTHORIZATION OF UNDERGROUND INJECTION BY RULE (Subpart C) AUTOMATICALLY TERMINATES FOR ANY OWNER OR OPERATOR WHO FAILS TO COMPLY WITH SECTION 144.26 BY NOVEMBER 25, 1989. Inventory information need not be submitted if a complete permit application is submitted NO LATER THAN NOVEMBER 25, 1989. Contents Owners/operators of all types of Class II injection wells are required to provide at least the following inventory information: 1 ) Facility name and location; (Facility is defined as an individual well, OR a group of wells with substantially the same characteristics - i.e., all enhanced recovery wells in a single unit.) 2) Name and address of legal contact; 3) Ownership of facility; 4) Nature and type of injection wells; and 5) Operating status of injection wells. ------- -2- This information should be submitted on the attached EPA Form 7500-48 M-79), Section IV, V, and VI. In add on, for all Class II enhanced recovery veils and certain Class \ rfells (sand or other backfill wells; radioactive waste disposal wells; geothermal energy recovery wells; brine return flow wells; automotive service disposal wells or pits; wells used in experimental technologies; municipal and industrial disposal wells other than Class I; and any other Class V wells at the discretion of the Regional Administrator), the owner/operator shall provide a listing of all wells setting forth the following additional information for each well; (a single description of wells at a single facility with substantially the same characteristics is acceptable): For Class II enhanced recovery wells only, 6) The field name(s); 7) Location of each well or project given by Township, Range, Section and Quarter-Section, or by latitude and longitude, according to the conventional practice in Utah/.Wyoming; 8) Date of original completion of each well; 9) Identification and depth of the formation(s) into which each well is injecting; 10) Total depth of each well; 11) Casing and cementing record, tubing size, and depth of packer; 12) Nature of the injected fluids (source); 13) Average and maximum injection pressure at the wellhead; 14) Average and maximum injection rate; and 15) Date of the last mechanical integrity test, if any. For all Class I, II and III wells authorized by rule, certain additional requirements are included in CFR 40 144.28, such as Twenty-four hour reporting, Plugging and abandonment plans, Financial responsibility. Casing and cementing, Operating requirements, Monitoring requirements, Reporting requirements, Notice of abandonment, and Change of ownership. ------- -3- Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (8WM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 2/6/89 ------- EPA ,__. _____ fact sheet \XI__rilP\ underground injection control WIND RIVER (WYOMING) AND UINTAH-OURAY (UTAH) INDIAN LANDS PROGRAMS EXISTING SALT WALTER DISPOSAL WELLS General For all EPA administered Underground Injection Control programs, injection veils must be authorized to inject salt water. Wells can be authorized by rule or by an individual or area permit. Existing salt water disposal wells are authorized to inject for five (5) years after approval or promulgation of the UIC program unless a complete permit application is pending provided they meet the program requirements described in 40 CFR, Part §144.21. These wells must comply with the operating, monitoring, and reporting requirements found in 40 CFR Part §144.28. This fact sheet addresses monitoring, reporting, and operating standards that owners or operators of existing oil and gas salt water disposal wells must comply with until the permit is issued. All new wells must be permitted by EPA prior to construction or conversion. This Fact Sheet Is intended to serve as an aid to owners and operators; however, it does not substitute for the .Safe Drinking Hater Act or the regulations adopted pursuant to the statute. Owners and operators should note that application for and receipt of a UIC permit from EPA does not constitute approval for any other State, Tribal, or Federal permit which may be required for a facility or project. For the purposes of the UIC program, EPA has classified injection wells into five (5) classes. Class II includes salt water disposal wells. Rules for Class II Salt Water Disposal Wells NOTICE PERIODS ARE EFFECTIVE UPON THE EFFECTIVE DATE OF THE REGULATIONS (November 25, 1988) o Owners or operators must notify EPA thirty (30) days prior to the scheduled date for running a mechanical integrity test. ------- -2- o Operators must notify EPA by certified mail at least forty-five (45) days prior to initiating plugging and abandonment. o Ovners or operators shall notify the EPA within sixty (60) days of the date injection has terminated. The well must be plugged within two years after termination of injection. The Regional Administrator may extend the time to plug in certain cases. o Owners must report change in ownership of a well within thirty (30) days of transfer. o Owners and/or operators must prepare and submit a plugging and abandonment plan no later than one year after the effective date of the program. The plan must include nature, quantity and materials to be used; manner in which plugs will be set; location and extent of plugs; and estimated cost of plugging. o Operators must report any noncompliance orally within 24 hours of detection and in writing within five (5) days. o Well casing and cementing must meet applicable State and/or Bureau of Land Management requirements that were in effect at the time of construction/completion. All corrections must be completed within one year of owner/operator notification. o Owners must establish financial responsibility to close, plug and abandon the injection well and submit evidence to EPA of such responsibility no later than November 25, 1989. o Wells may not inject at a pressure greater than that pressure calculated so as to assure that the pressure during injection does not initiate new fractures or propagate existing fractures in the injection zone. o Operators shall determine the nature (major ions, total dissolved solids [TDS], Specific Conductance, Specific Gravity, etc.) of injected fluids initially, when the nature of injected fluids is changed, or when new constituents are added. o Operators must monitor for the injection pressure, cumulative volume, and flow rate at least weekly with results recorded monthly and reported annually. The annual report must be submitted by January 15 of the following year. ------- -3- o Operators must submit an annual report including monthly monitoring figures for injection pressure (psig) and injection rate (bbl/day). The annual report must be submitted by January 15 of the following year. o The owner or operator must demonstrate mechanical integrity at least once every five (5) years during the life of the well [l44.28(g)(2)(iv)(A)]. EPA may require the owner or operator to make the demonstration at any time. Wells where the packer has been unseated will be scheduled for a repeat mechanical integrity test (MIT). o Shut-in or temporarily abandoned wells are subject to mechanical integrity requirements. o Owners or operators must submit well inventory information on each well within one year of program implementation (by November 25, 1989). o Owner/operator shall retain all monitoring records for three (3) years, unless enforcement action is pending, and then until three (3) years after the enforcement .action has been resolved. NOTE: Failure to meet any of the above listed requirements may be grounds for enforcement action including penalties. Major Modifications to Existing Wells Operators of existing wells must obtain a UIC permit from EPA prior to making major modifications. Major modifications include: Any change in the currently authorized injection zone (i.e. perforating the well casing or taking other action to allow injection into a formation other than the current authorized injection zone). Any other changes except minor modifications. Operators are required to notify EPA prior to making minor modifications. The Regional Administrator may require the operator to obtain a permit for such modification in certain cases. EPA will notify operators of changes in the regulatory requirements and more frequent monitoring, testing and reporting requirements. Minor modifications include: Changing the injected fluid to some fluid other than those identified on the operator's injection well inventory verification form (e.g. changing the injected fluid from salt water to steam, C02 or a polymer). Any change in fluid, however, must be within the definition of a Class II injection well (40 CFR §144.3). ------- -4- * More frequent monitoring, testing or reporting prescribed by EPA to assure that the injection activity will not allow movement of fluid into a USDW (40 CFR Si44.12) [action initiated by EPA]. Amendment of a plugging and abandonment plan. Transfer of well ownership. Who to Contact Required information, request for information, or questions are to be sent to: Chief, UIC Implementation Section Drinking Water Branch (8WM-DW) 999 18th Street, Suite 500 Denver, Colorado 80202-2405 Telephone: (303) 293-1413 2/6/89 ------- |