UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: April 25, 1989
MEMORANDUM
SUBJECT: Final Guidance on Implementing the Indian Primacy Rule
for the PWSS and UIC Programs
FROM: Robert J. Blanco, Director (signed)
State Programs Division
TO: Drinking Water Branch Chiefs
Regions I - H 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 (FTS 382-5558) for the UIC program.
Attachment
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TABLE OF CONTENTS
SECTION PAGE NUMBER
I. Introduction 3
II. Treatment as a State 5
A. Required Information 5
B. EPA Review of Treatment as a
State Applications 10
C. Time Frame for Processing Treatment
as a State Application 11
III. Development Grants 12
A. Required Information 12
B. EPA Review 15
IV. Primacy 16
A. Required Information 16
B. EPA Review 16
Attachments
A. Treatment as a State Checklist
B. Treatment as a State Application Process Flowchart
C. Suggested Development Grant Goals for the PWSS and UIC Primacy Programs
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INDIAN PRIMACY GUIDANCE
April 1989
I. INTRODUCTION
Section 1451 of the Safe Drinking Water Act (SOWA) authorizes the Administrator to
treat Indian Tribes as States. Section 1451 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 within the area of the Tribal
government's jurisdiction; and
(c) 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 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 Underground 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 PWSS or a UIC program. The first is to be designated eligible for treatment
as a State; the second, to apply for and receive Federal funding to 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 State requirements. The regulations may be found at 40
CFR 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 may apply for treatment as a State under
either the Safe Drinking Water Act or the Clean Water Act and that once so designated, a Tribe
need only submit information unique to the specific program (e.g., PWSS or UIC) for which it is
applying (rather than resubmitting all previous treatment as a State information). It is therefore
critical that contacts be kept among all water programs.
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After being designated eligible to be treated as a State, a Tribe may apply for a
development 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 part of the treatment as a State application. If the Tribe has applied for treatment
as a State for the PWSS or the UIC program, the development grant application may reference
the treatment 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 on 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 may modify 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 administer the program, the Tribe submits an application for primacy. The
requirements and procedures for applying for primacy 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
program. Tribes must meet these requirements in order to be granted primacy. (Note: the
PWSS primacy regulations are undergoing revision. Indian Tribes applying for primacy will be
subject to the new regulations which are expected to be promulgated in July 1989. When these
are final, a copy will be circulated to all for their use.)
Regional staff should work with the Tribes in their Region to fully explain the rule and its
potential impact on the Tribes. An important item which must be dealt with early on is the
economic aspects of assuming a PWSS or UIC primacy program. The grant regulations state that
a Tribe must match federal funding at 25% unless the Tribe can demonstrate that it does not have
adequate funds, including federal funds authorized by the statute, to be used for matching
purposes. In that case, the Tribal match could be lowered to 10%. The key point which must be
communicated is that the level of funding available for a given fiscal year is fixed, and
consequently, an applicant may not receive the entire level of funding requested. Those funds
required, but not provided by the federal government, will have to come from Tribal sources. An
analysis of State PWSS programs 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 will face similar
situations.
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In addition, in these early discussions, the limitations of the primacy programs must be
pointed out. For example, the SDWA does not provide funds for construction and/or
maintenance of drinking water facilities nor can facilities be upgraded using SDWA 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 give
Regional staff the assistance they need to discuss the rules 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 and staff should consult these for
additional details.
II. TREATMENT AS A STATE
A. Required Information
Tribes must submit information which demonstrates the following:
(1) Federal Recognition - The Secretary of the Interior publishes in the Federal
Register a list of Federally recognized Tribes. The applicant may 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 may submit this in lieu of a copy of the
Federal Register notice.
(2) "Governing body carrying out substantial duties and powers" - The regulations
require that a Tribe submit 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 documentation 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, some Tribal constitutions are very lengthy and
incorporate all Tribal codes. It would be very time consuming for the Tribe to
make copies of this material and also for Regional staff to review it. The Tribe
could simply providea copy of the ratification page, a table of contents, and the
appropriate codes.
Most Indian Tribal governments perform essential government functions
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traditionally performed by sovereign governments; however, the degree 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 powers to promote the
health, safety, and welfare of the residents.
The narrative statements required by the regulations [142.76(b) for the PWSS
program and 145.56(b) for the UIC program] must include, at a minimum, the
following:
(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);
(b) A description 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; and
(c) A description of the programs that the Tribe has instituted to promote
the health, safety, and welfare of its 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 program within the
exterior 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 submit a statement
certifying that the Tribe possesses sufficient authority to regulate and enforce the
PWSS or UIC program in the appropriate area. This statement must 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 and most logical arguments for Tribal authority.
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In addition to the legal documentation, the Tribe must submit a legal description
of the area over which it 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 to 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.
(4) "Reasonably expected to be capable" - The regulatory language requires Tribes to
submit 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 along with an
explanation of the information which must be provided.
(a) Previous management experience - [142.76(d)(l) and 145.56(d)(l)] The
Tribe's managerial skills will be evaluated on the basis of its 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 or has administered, and
provide a copy of any evaluations by the awarding Agencies. EPA will consider
such factors as the variety and length of the managerial experiences and will
consider the evaluations of Tribal performance in administering programs
performed by the awarding Agencies.
(b) Existing environmental or public health programs administered by the Tribal
government body and a copy of related Tribal laws, regulations, and policies -
[142.76(d)(2) and 145.56(d)(2)] The Tribe 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 its record of progress in
enforcing the provisions of each program. (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 - [142.76(d)(3) and 145.56(d)(3)] The
Tribe must provide a description of its accounting and procurement system. EPA
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will review the Tribe's system to ensure that it meets established federal
guidelines (e.g., 25 CFR 271.46).
(d) Entities which exercise the executive, legislative, and judicial functions of
Tribal government - [142.76(d)(4) and 145.56(d)(4)] The submission required
under the "substantial governmental duties and powers" is likely to provide the
necessary information as to the executive and legislative functions of Tribal
government and may be referenced by the Tribe in its application. The
information will be reviewed according to the criteria in that section. Information
on Tribal judicial functions is discussed below. Please note that this information
may also be submitted under the "substantial governmental duties" section or with
jurisdiction. If it has been submitted there, it maybe referenced and not repeated.
Tribal court systems may vary in make-up from non-Indian courts. In
order for EPA to evaluate a Tribe's judicial system, specific knowledge of the
court organization and procedures is required. A second issue is the question of
how a non-Indian receives "due process" in a Tribal court. Both of these issues
are central to determining whether a Tribe satisfies the criteria for treatment as a
State. However, EPA does not intend to 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 Tribal courts is, at least to some extent, Tribally and culturally dependent. This
guidance is therefore confined to the types of information that must 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 description of the court structure and rule should be provided and
the appeals process described. If two or more Tribes wish to share
program responsibility, the relationship between the appellate courts and
each of the Tribes should be addressed;
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(d) Penalty System - The system used to levy fines or penalties should be
described, including the statutory authority for assessing penalties, and any
minimum or maximum penalties. If available, a schedule of penalty
amounts should also be included; and
(e) Judge Selection - The process used for selecting court judges
(including minimum qualifications) should be specified. If judges are
shared through a "circuit rider" system, details of that system and
background of court officials should be provided.
In addition, the legal process, appeals procedures, and any other
legal remedies available to Indians and non-Indians should be specified.
This information is necessary to evaluate the legal rights of non-Indians in
the Tribal court system.
(f) Existing or proposed agency of the Indian Tribe which will assume
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 primary enforcement responsibility. The Tribe will be required to
submit 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 primacy program and a statement from the Tribal Attorney
General or attorney representing the Tribe must be provided as noted
previously. EPA will determine it 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).
(g) 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 must
provide a description of the technical and administrative capabilities 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 of the areas in which IHS provides this
assistance are areas a Tribe would have to take over if it is to be granted
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primacy. For example, IHS currently provides plan and specification
review for Tribes and conducts sanitary surveys at Tribal facilities.
Regional Offices should recognize these IHS/Tribal agreements; however,
these agreements will need to clearly define the responsibilities of IHS and
the Tribe. The Tribe should commit to assume full responsibility for these
functions.
B. EPA 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 to be lacking some needed materials, it should be
returned for amendment by the Tribe. A checklist of required elements is provided in
Attachment A to assist Regional staff in their review.
(1) Federal Recognition - Regional staff should obtain and keep 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 from BIA. Staff may also contact appropriate IHS 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 exercised
substantial governmental duties and powers in implementing programs to promote
the health, safety, and welfare of its residence.
(3) "Functions to be exercised...are within the Tribal government's jurisdiction " -
Review of the material on jurisdiction should be agreed upon by the Office of
Regional Counsel. It is important to recognize that the legislative history supports
Tribal jurisdiction within exterior boundaries of reservations relative to Tribal
health and welfare. Possible competing claims of jurisdiction may arise in
checkerboard areas where States feel they have jurisdiction over non-Indian
communities that have been incorporated under State statute within the exterior
boundaries of the reservation. Regional Offices should facilitate State/Tribal
meetings to resolve these situations as soon as possible. Much of the information
provided in item #2 will be applicable here.
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The Tribe is required to submit a legal description and map showing the
geographic area over which it claims jurisdiction and also the location of the water
systems and/or injection 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 must 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 remember that the
decision to treat a Tribe as a State is made very early in the process of developing
Tribal programs. The standard for the capability determination is whether the
Tribe is "reasonably expected to be capable" of administering the program.
C. Time Frame for Processing Treatment as a State Application
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 ofjurisdiction. Comments by governmental entities
are limited to the Tribe's assertion ofjurisdiction (40 CFR 142.78 and 145.58).
It is suggested that the Regional Offices contact the State primacy agency 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 my 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 affect other water programs). The
Regional Indian Affairs Coordinator may be involved as appropriate.
If no competing claim ofjurisdiction is received, the Regional Office should complete
processing the application within thirty days. 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 have been received prior to making the
determination as to whether the applicant meets the treatment as a State criteria. The Region
should attempt to resolve such situations as expeditiously as possible.
III. DEVELOPMENT GRANTS
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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 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 meet the match requirements.
In addition to the Tribal-specific needs the following issues must be addressed by the
Tribe in its grant application:
(1) Regulator/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 submit 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/operator of the public water system to
insure that samples are analyzed by a certified laboratory. In some cases, the
Tribe may be 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.
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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 a contract with a certified laboratory which specifies the 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 to 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 actions for willful violations. The UIC primary
enforcement responsibility regulations at 145.13(e) state that to the extent that a
Tribe does not have or is precluded from asserting criminal enforcement authority,
the Administrator will assume primary enforcement responsibility for criminal
violations. Further, 145.13 requires that the Memorandum of Agreement (a
requirement for primary enforcement responsibility described in 145.25) spell out
provisions for 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 Tribal 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 inn 1978
in the Oliphant v. Suquamish Indian Tribe case. Therefore, the Regions must be
sufficiently flexible on this issue to accommodate 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. The
compliance/enforcement strategy should also discuss the anticipated 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 noncompliance 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 ensure this. Regional
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staff should consult with their PWSS or UIC Enforcement Coordinators to ensure
consistency in enforcement policies and approaches.
The Tribe must also have (or develop) the mechanisms to restrain
immediately and effectively any person engaging in any unauthorized activity or
operation which is endangering or causing damage to public health or the
environment (as related to the PWSS or UIC program requirements). The Tribal
agency administering the program must also have the means to sue in courts of
competent jurisdiction to prohibit any 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 or Federal level. The
compliance strategy (or Memorandum Agreement) should lay out this process.
Federal Facilities will be treated in the same 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 Federal government is a criminal 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
must commit to referring the case to the appropriate 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 submission of
additional information as it becomes available. Specific procedures for the
handling of criminal cases should be developed. As note 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. EPA Review
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Regional Staff should conduct a careful review of all materials submitted with a
development grant application. In addition, previous years' performance in meeting
commitments should be carefully considered before another year's funding is awarded. The
following guidance is provided to help the Regions in their review.
(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 submit 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.
(3) Criminal Enforcement - 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) Compliance Strategies - 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 timeframes. 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 a development grant has been awarded, the Tribe has three years in the PWSS
program and four years in the UIC program to assume primacy. During this developmental
stage, EPA staff need to work closely with Tribes to ensure that
commitments are being met and the program is developing properly.
IV. PRIMACY
A. Required Information
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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 follow the same procedures as States. [Note: as stated earlier, the PWSS
primacy regulations are currently being revised. It is anticipated that a final regulation will be
published in July 19889. Tribes applying for primacy after that date will be required to 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 Branch. After a preliminary determination that
the Tribe has met all of the requirements, the Drinking Water Branch should 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 may 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.
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Attachment A
Page 1 of3
TREATMENT AS A STATE CHECKLIST
Treatment as a State Criteria
Material to be Submitted
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(see comments)
Federal Recognition
Copy of the appropriate BIA Federal
Register notification (or other
documentation showing Federal
recognition
2. Possesses and exercises
substantial government
duties and powers.
(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
promote the health, safety,
and welfare of the Tribal
members.
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Attachment A
Page 2 of3
TREATMENT AS A STATE, (cont'd.)
Treatment as a State Criteria
3. Tribal Capability
Material to be Submitted
Note: 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 systems.
(4) Description of Tribal
agency lhat will assume
primacy, including
discussion of regulator/
regulatee conflict
(b) Description of Tribal court system
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(see comments)
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Attachment A
Page 3 of 3
TREATMENT AS A STATE, (cont'd.)
Treatment as a State Criteria
4. Tribal Jurisdiction
Regional Comments:
Material to 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 Submitted
(see comments)
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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 days 142.76 (PWSS)
145.58 (UIC)
Appropriate governmental entities
submit comments (to be limited
to program specific jurisdiction).
'in a timely manner" 142.76 (PWSS)
145.58 (UIC)
Regional Administrator notifies Tribe of
eligibility to apply for grants.
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Attachment C
Suggested Development Grant Goals for the PWSS and UIC Primacy Programs
Tribal applicants must commit to assuming primacy 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 ensure public participation;
Public notification procedures developed;
Hire technical staff as needed;
Resolve any regulator/regulatee conflict;
Sanitary survey protocols/procedures developed;
Data processing/recordkeeping 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 on the development of the necessary Memorandum of
Understanding is still being developed.
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Year #3 Goals
Evaluate previous year's performance;
Demonstrate capability to administer the program effectively.
Underground Injection Control Program
Year #1 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 keeping procedures.
Year #2 Goals
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
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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.
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