EPA American Indian Environmental Office
May 2018
Summary of Past Feedback from Tribes and Tribal Organizations on the 2013
Indian Environmental General Assistance Program:
Guidance on the Award and Management of General Assistance Agreements for
Tribes and Intertribal Consortia
TABLE OF CONTENTS
I.	Purpose
II.	Summary of Past Feedback on 2013 GAP Guidance
a.	EPA-Tribal Environmental Plans (ETEPs)
b.	Emphasis on Capacity Development and Use of Pre-
Determined Measurable Capacity Indicators
c.	Allowable Waste Program Implementation Activities
d.	General/Miscellaneous
III.	Overview of 2018 GAP Guidance Evaluation
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I. Purpose
As part of the 2018 General Assistance Program (GAP) Guidance Evaluation, EPA's American Indian
Environmental Office (AIEO) prepared this summary of past feedback to acknowledge the concerns and
issues raised by tribes, tribal representatives, and intertribal consortia who are affected by the 2013 GAP
Guidance.
The 2018 GAP Guidance Evaluation is a process for AIEO to engage with tribes on how to improve the
GAP Guidance1 or its implementation to better achieve the goals of the program. The GAP Guidance
describes how EPA administers the financial assistance program created by the GAP Act of 1992 (42
U.S.C. § 4368b).2 Under the GAP statute, EPA provides GAP financial assistance through grants or
cooperative agreements to tribal governments and intertribal consortia to assist tribes in planning,
developing, and establishing the capacity to implement federal environmental programs administered
by the EPA, and to assist in implementation of tribal solid and hazardous waste programs in accordance
with applicable provisions of law.
Specifically, the purpose of this document is to support the first phase of the 2018 GAP Guidance
Evaluation, which involves consultation with tribal governments as well as focused engagement with
representatives from the NTC, RTOCs, and tribal partnership groups to seek additional input on how the
2013 GAP Guidance or its implementation can be improved. All feedback summarized in this document
is already part of EPA's evaluation of the GAP Guidance.
The document provides a high-level summary of the predominate feedback provided to EPA by GAP
recipients since the issuance of the 2013 GAP Guidance, organized by four topic areas in Part II below,
and it does not reflect EPA's views regarding each point in the summary. This document draws upon
comments, issues, and concerns shared with EPA through written and oral communication from tribal
government representatives, including members of the National Tribal Caucus and Regional Tribal
Operations Committees, and from intertribal consortia; however, it is not intended to be a
comprehensive summary of past feedback. In compiling this summary, AIEO captured the original
comments as we received them, with minimal editing for clarity, length, etc.
AIEO recognizes that this summary of past feedback does not fully reflect all the views from tribal
representatives and consortia about the 2013 GAP Guidance. During the summer of 2018, we will be
actively seeking additional input from tribes and consortia about how to improve the Guidance and its
implementation. For information about how to provide additional input to AIEO on the 2013 GAP
Guidance, please refer to Part III of this paper. EPA prepared the Indian Environmental General
Assistance Program Frequently Asked Questions (November 2016) to provide additional clarification on
implementation of the 2013 GAP Guidance. Some of the tribal concerns summarized below are relevant
to the FAQs. These FAQs will also be the subject of further review and revision, including incorporation
into the Guidance, where appropriate, during the 2018 GAP Guidance Evaluation.
1	Guidance on the Award and Management of General Assistance Agreements for Tribes and Intertribal Consortia
(May 2013), available at https://www.epa.goy/tribal/2013-guidance-award-and-management-general-assistance-
agreements-tribes-and-intertribal.
2	The purpose of GAP Act also includes "technical assistance from the [EPA] to Indian tribal governments and
intertribal consortia in the development of multimedia programs to address environmental issues on Indian lands."
However, the focus of the GAP Guidance is on GAP financial assistance, which is the focus of EPA's Evaluation.
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II. Summary of Past Feedback on 2013 GAP Guidance
a. EPA-Tribal Environmental Plans (ETEPs)
CONTEXT
The 2013 GAP Guidance states:
Regions and tribes are expected to develop an ETEP that contains the following components: (1)
identification of tribal environmental program priorities, including capacity building and
program implementation goals; (2) identification of EPA program priorities and management
requirements; (3) an inventory of regulated entities; and (4) identification of mutual roles and
responsibilities. The purpose of the ETEP is to develop the complete picture of the particular
environmental issues facing the tribe, establish a shared understanding of the issues the tribe
will be working on, and a shared understanding of those issues that EPA will address consistent
with its responsibility to protect human health and the environment By having these elements of
a plan in place, EPA should be able to ensure that GAP work plans are developed to support the
long-term priorities and goals of the tribe and that funds are directed toward building
environmental program capacities. EPA considers this jointly-developed plan an important
component of effective GAP resource management.
The specific format and approach to developing ETEPs may vary from tribe to tribe and region to
region. Maximum flexibility is provided as to how the ETEPs are developed. GAP Guidance
section 4.2, "Purpose and Format for ETEPs/' p. 15 of 22.
PAST FEEDBACK ON ETEPS
>	ETEPs are not a valuable tool for advancing environmental protection in tribal communities.
The requirement to develop and implement an ETEP as a condition of the GAP grant is
burdensome and unreasonable.
>	ETEPs disrespect tribal sovereignty because they are used by EPA to tell a tribe what EPA
wants the tribe to do rather than allowing tribes to define their own environmental program
priorities.
>	Joint EPA-tribal planning agreements negotiated between tribes and EPA can provide a
framework to guide the Tribe-Agency relationship. However, the Agency must honor tribally
defined priorities and interests and should provide each tribe sufficient flexibility in the
definition of goals, pathways, and indicators of capacity.
>	The GAP Guidance imposes significant and unnecessary administrative burdens on tribes
and EPA staff, especially the ETEP requirement. Increasing administrative requirements
without additional funding results in GAP dollars being diverted to completing additional
administrative tasks instead of tribal capacity to protect human health and the environment.
This violates the 1984 Indian Policy.
>	ETEPs are not required by law, so they should not be a condition of the grant. EPA has
chosen to apply the ETEP requirement in the GAP Guidance, which reflects EPA policy, not
law- so tribes do not have to follow the ETEP requirement. Tribes should not have to comply
with the additional burdens imposed by EPA's discretionary policy.
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>	To make the ETEP requirement easier to comply with, the GAP Guidance should provide a
sample format or template for ETEPs.
>	Intertribal consortia that receive GAP funding should be required to establish ETEPs.
>	Some tribes are concerned about the ETEP being shared with outside parties. EPA should
clarify whether it will release tribal program information contained in an ETEP with
members of the public or other governmental agencies so that tribes can carefully consider
what to include or exclude from their plan.
b. Emphasis on Capacity Development and Use of Pre-Determined Measurable Capacity
Indicators
CONTEXT
The Indian Environmental General Assistance Program Act of 1992 states:
The purposes of this section are to . . . provide general assistance grants to Indian tribal
governments and intertribal consortia to build capacity to administer environmental regulatory
programs that may be delegated by the Environmental Protection Agency on Indian lands. 42
UCS 4638b section (b).
Any general assistance under this section shall be expended for the purpose of planning,
developing, and establishing the capability to implement programs administered by the
Environmental Protection Agency and specified in the assistance agreement 42 UCS 4638b
section (f).
The 2013 GAP Guidance states:
Tribal governments have tribe-specific priorities. Tribes will identify program areas to focus on
with respect to building environmental protection program capacity. [...] There is not just one
pathway to follow for building environmental program capacity, and as such there are many
indicators that can be used to assess and measure progress in the capacity building process.
Tribes that are not seeking TAS status may wish to establish other meaningful and important
levels of environmental program capacity directly in support of the environmental statutes the
EPA implements, or for tribal environmental protection programs that are consistent with EPA's
programs. Seeking TAS status is not a requirement for receiving funding under this program.
...The indicators in Appendix I offer a non-exclusive menu of choices, organized by category of
environmental program development; they need not all be selected.
Tribes and EPA will rely on the capacity indicators that have been identified in work plans and
the long-term goals in ETEPs to assess and report on progress in the development of tribal
environmental program capacities under the GAP program. GAP Guidance section 3.0,
"Performance Reporting: Indicators of Tribal Environmental Program Capacity/' p. 12 of 22.
PAST FEEDBACK ON CAPACITY DEVELOPMENT AND CAPACITY INDICATORS
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>	The GAP Guidance goes beyond what the EPA Office of Inspector General (OIG)
recommended in their February 19, 2008 audit report, "EPA Framework for Developing
Tribal Capacity Needed in the Indian General Assistance Program" (Report No. 08-P-0083).
>	The Guidance does not contain any provisions related to the deficiencies in EPA's tracking
and reporting systems noted by OIG or how EPA proposes to address them, but instead
focuses exclusively on tribal program requirements. The GAP Guidance shifted the burden
for national program accountability from EPA to the grantees.
>	GAP should allow tribes to maintain an environmental presence rather than having to show
measurable capacity building progress over time. By limiting the availability of GAP funding
for ongoing community education and outreach activities and other recurring
environmental program activities that are important to individual tribes, the GAP Guidance
cuts off an important source of funding for tribes to maintain their environmental programs.
The Guidance places too much emphasis on each tribe progressing towards end-goals and
establishes too many limitations on activities deemed implementation.
>	Denial of GAP funding for recurring community education and outreach activities appears to
be based on an assumption by EPA that once a set of written or visual aid materials has
been developed, capacity in this area has been achieved. This reflects a fundamental
misunderstanding regarding the importance of continuous outreach in tribal communities to
garner and maintain support for and participation in environmental protection efforts.
>	GAP funding should support the recurring costs of maintaining core environmental program
capacities (administrative, financial management, information management, environmental
baseline needs assessment, public education/communication, legal, and
technical/analytical).
>	GAP should fund recurring, repeat tasks, such as consultation, collaboration, document
reviews, administration and oversight of non-GAP funded environmental programs,
proposal writing etc. It is not clear how GAP will maintain tribal capacity; maintaining
capacity should be a measurable goal, not just building capacity.
>	GAP Guidance should allow a tribe or intertribal consortia to host a community cleanup
event as a stand-alone project (e.g., household hazardous waste, e-waste, or roadside litter
pickups).
>	GAP funding needs to be available to rebuild lost capacity (i.e., due to staff turnover).
>	GAP funding should be for tribally-defined tasks to develop tribally-defined capacities to
address tribal priority issues. By making the GAP Guidance focused on building tribal
capacity to administer environmental protection programs that are consistent with the
federal laws the EPA is charged with implementing, "consistent with Agency standards and
regulations," the GAP Guidance reduces tribal governments to an administrative arm of EPA.
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>	EPA should eliminate the need for applicants to assign EPA-defined, measurable capacity
indicators to their proposed work, and the need for EPA to approve applicant proposed
measurable indicators. The use of indicators has unjustly limited the scope of GAP-eligible
activities and often involves months of negotiations and re-writes of a grantee's work plan.
>	The Guidebook does not adequately address the needs of tribes that are not currently
seeking to implement federally authorized regulatory and enforcement programs
("treatment in a manner similar to a state") or how these tribes will be affected once it is
determined that "core program capacities" have been met.
>	The Guidebook does not adequately address the needs of tribes that currently have limited
potential for environmental regulatory jurisdiction- or how these tribes will be affected once
it is determined that "core program capacities" have been met.
>	The Indicators should be presented as one set of possible criteria or expanded to include a
wide variety of actions that could be considered in evaluating the effectiveness of a program
and in considering whether a tribal government is building capacity.
>	EPA should transition GAP capacity indicators to outcome measures, such as "how many
tons of waste was diverted from the landfill last year/' to better demonstrate the pollution
prevention benefits of GAP activities. Focusing GAP indicators on capacity pulls attention
away from environmental outcomes that are important to tribes.
>	The Guidance states that tribes can develop custom indicators but there is no evidence that
a custom indicator has ever been approved by EPA.
>	Establishing environmental protection program capacities should not be defined with
specific timelines, and recipients should always be eligible to receive GAP assistance beyond
any EPA established capacity development timeline.
>	Once a GAP grantee has successfully established environmental protection program
capacity, EPA provides inadequate support for program implementation, either using GAP
or other EPA funds. GAP is a "bridge to nowhere" and - as a result - tribes are dis-
incentivized to pursue program delegations from EPA.
>	GAP funding needs to remain flexible enough for tribes to address emerging issues and
opportunities (e.g., technology, new environmental risks).
c. Allowable Waste Program Implementation Activities
CONTEXT
The 2013 GAP Guidance states:
Under RCRA, EPA implementation activities include: (1) issuing permits to hazardous waste
treatment, storage, and disposal facilities; (2) issuing RCRA identification numbers to facilities
that handle (generate, store, treat, transport, etc.) hazardous waste; (3) conducting compliance
assurance (including inspections) and enforcement at facilities subject to the hazardous waste or
UST requirements; (4) accepting required notifications from regulated UST owner/operators; (5)
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directing corrective action activities at facilities subject to the hazardous waste or UST
requirements; and (6) exercising enforcement options as necessary under RCRA, including: RCRA
§ 700344 (which allows EPA to respond to conditions at non-hazardous waste facilities which
may present an imminent and substantial endangerment to health or the environment) or §
4005(c)(2). GAP Guidance Appendix I, section E.l, "EPA's Solid Waste, Hazardous Waste, and
Underground Storage Tank Programs/' p. 25 of 42.
In general, GAP funding should be used to build the applicable tribal environmental program
capacities; once capacity is established, tribes may seek funding to support more complex
program development and implementation while continuing to use GAP resources for ongoing
capacity building activities. EPA's main tribal solid waste priority is the promotion of sustainable
tribal waste management programs through the development and implementation of Integrated
Waste Management Plans (IWMPs). EPA will focus GAP funding on this priority. GAP Guidance
Appendix I, section E.2, "Program Capacity Building: Planning, Developing, and Establishing
Tribal Waste Management and Underground Storage Tank Program Capacity," p. 27 of 42.
Once a tribe has established a waste management program that is generally consistent with the
applicable indicators described above, GAP funds may be used for the following implementation
activities in order of priority: (a) program administration; (b) compliance and enforcement; (c)
solid waste management, resource recovery, and resource conservation support; and (d) cleanup
and closure. GAP Guidance Appendix I, section E.3, "Program Implementation: Tribal Waste
Management and UST Program Implementation," p. 29 of 42.
PAST FEEDBACK ON WASTE PROGRAM IMPLEMENTATION
>	Tribal solid and hazardous waste programs should not be defined by the purposes and
requirements found in the Solid Waste Disposal Act (aka the Resource Conservation and
Recovery Act).
>	Tribes must be able to continue using GAP to support Tribally-defined Solid and Hazardous
Waste implementation activities. Tribes are independent and have their own ways of doing
things- regulatory approaches are not always the most effective.
>	The need for flexibility in funding solid waste management particularly exists in Alaska,
where isolated Native Villages have few options. GAP funds often subsidize basic solid waste
management services and very often the best environmental option is the backhaul of solid
waste for recycling or disposal at a larger facility. However, the Guidance has foreclosed the
use of GAP funding for these activities.
>	The changes to GAP Guidance, which limit the flexibility and implementation forsolid
waste, will set backthe very work and capacity the GAP program has partnered with
tribes to build overthe years. Additionally, many tribal landsare in rural or remote areas
where recycling and proper household hazardous waste disposal options should not be
considered "basicgovernment function" and thus unallowable under GAP.
>	Tribes should be allowed to use GAP funds to conduct waste cleanup activities without
restrictions.
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d. GENERAL/MISCELLANEOUS
PAST FEEDBACK ON GENERAL OR MISCELLANEOUS TOPICS
>	EPA did not follow its consultation policy when developing the 2013 GAP Guidance. Tribes
were not involved in the process until after the guidance had been developed and tribes
were not given the opportunity to consult on all aspects of the final guidance, such as some
of the "Restrictions" laid out in Part 1.
>	By describing "restrictions" on the use of GAP funds, the GAP Guidance goes beyond
recommendations contained in the 2008 EPA Office of the Inspector General GAP audit
report; the GAP Guidance should not make activities previously funded under GAP
unallowable.
>	The Guidance violates principles of the 1984 "EPA Policy on the Administration of
Environmental Programs on Indian Reservations/' such as the principles related to the
removal of "existing legal and procedural impediments to working directly and effectively
with tribal governments on reservation programs."
>	The language in the Guidance should be clearer and easier to digest. It is difficult to navigate
such a large document and understand how to apply it.
>	Tribes are being held to GAP Guidance requirements as binding legal requirements even
though the Guidance includes provisions that extend beyond the statute and implementing
regulations.
>	There remain inconsistent interpretations of allowable and unallowable activities under GAP
between project officers and from region-to-region. EPA should provide training for EPA
project officers and tribes to improve consistency.
>	The Guidance should use the term "federally recognized tribal governments" rather than
"Indian country" to be fully inclusive of current GAP recipients and to ensure that Alaska
Native Villages are adequately and fully considered.
>	The Guidance should include a new section that provides a capacity building framework for
"projects and issues unrelated to EPA authorities and programs."
>	GAP funds should address tribal environmental priorities without the stipulation of targeting
funding to support the objectives of EPA's statutory and regulatory programs. The Guidance
should include flexibility to allow tribes to address their own priorities outside the context of
statutes administered by EPA.
>	The Guidance includes a requirement that the Director of the American Indian
Environmental Office sign off on some activities. This is overly burdensome and
unnecessarily extends the grant approval process.
>	The language in the GAP Guidance regarding intertribal consortia eligibility is unclear and
overly burdensome.
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>The GAP guidance requirements related to mandated planning documents and reporting are
to the detriment of successes on the ground. Tribes have demonstrated years of fully
functioning management systems.
>	GAP Guidance requirements relating to planning, measures, and accountability amplify
existing concerns regarding administrative burdens and less flexibility. In short, more
mandated planning documents and reporting to the detriment of successes on the ground.
>	Administrative burden of applying for and administering GAP funds under the 2013
Guidance are disproportionate to the amount of funding in any individual grant or
cooperative agreement.
>	Tribes should be afforded the flexibility to administratively organize however they choose
and still receive GAP funding as long as: 1) they meet the minimum requirements of law to
receive GAP funding; 2) there is a discernible structure to the organizational scheme; 3) they
allow for accountability; and 4) they delineate funding and spending so that GAP funds can
be tracked.
>	EPA should eliminate the need for grantees to use GAP Online for GAP funds that are not
administered through Performance Partnership Grants, noting that GAP Online can add
administrative burden for grantees.
>	Tribes should be allowed to use GAP funds for implementation of EPA-delegated programs.
III. Overview of 2018 GAP Guidance Evaluation
EPA's Office of International and Tribal Affairs (OITA) is coordinating with EPA Regions and the National
Tribal Caucus to gather input about how to improve the 2013 GAP Guidance and/or its implementation
to better achieve the goals of the program and support tribal governments in the development of tribal
environmental programs. OITA's objectives for the GAP Guidance are to:
1.	Ensure consistent funding decisions for all grantees.
2.	Provide a framework for planning and building environmental program capacity so that the
capacity building progress and achievements of grantees can be tracked and shared with relevant
decision makers.
3.	Support tribes in assuming responsibility of EPA programs through capacity development (self-
governance).
4.	Guide use of GAP funds for solid and hazardous waste program implementation.
5.	Minimize administrative burden for project officers and grantees in developing and negotiating
work plans.
All past feedback summarized in this document will be considered by EPA throughout the Evaluation.
To supplement past feedback, the first phase of the Evaluation is focused on gathering input from tribes,
intertribal consortia, tribal partnership groups (e.g., National Tribal Caucus, National Tribal Water
Council, etc.), EPA staff (e.g., GAP project officers) and others with direct experience using the 2013 GAP
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Guidance. We are interested in hearing the full range of tribal perspectives on how the Guidance helps
or hinders the achievement of desired environmental protection outcomes. We also look forward to
gathering suggestions for how the Guidance might be improved, drawing on specific examples of what's
working and what's not working for grantees.
For more information about the GAP Guidance Evaluation, please feel free to contact Rebecca Roose,
AIEO Senior Advisor, at roose.rebeccapepa.gov.
For information about OITA's consultation with tribal governments during the input phase, please visit
EPA's Tribal Consultation Opportunities page at https://tcots.epa.gov/. The timeframe for this
consultation and coordination period is June 1 - August 31, 2018.
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