02-28005. Update to EPA Policy on Certain Grants to Intertribal Consortia

AGENCY:

Environmental Protection Agency.

ACTION:

Notice.

SUMMARY:

The Environmental Protection Agency (EPA) is providing public notice that it is updating its policy allowing for the award of grants to intertribal consortia to include two new grant programs that were authorized by the recently enacted Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA). The effect of this policy change is that EPA interprets its authority to award, to Federally recognized Indian tribes, Brownfields Revitalization Grants and State and Tribal grants for the establishment and enhancement of state and tribal response programs to include awarding such grants to intertribal consortia, as the term is defined in this document. This document does not affect the eligibility status of intertribal consortia in their capacity to apply for other types of grants authorized under SBLRBRA.

DATES:

The policy update summarized in this document is effective immediately.

FOR FURTHER INFORMATION CONTACT:

For general information, contact the RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC metropolitan area, call 703-412-9810 or TDD 703-412-3323.

For more detailed information on specific aspects of this rule, contact Felicia Wright, Office of Solid Waste and Emergency Response, (Mail Code 5105T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-566-1786. [e-mail].

SUPPLEMENTARY INFORMATION:

 

I. Background

On September 29, 1999, EPA published a document advising the public of its policy to interpret statutes authorizing EPA to make grants to Indian tribes for specified EPA grant programs to Indian tribes. This policy will allow EPA to award grants to intertribal consortia to the extent that such an interpretation would be consistent with Congressional intent (64 FR 52504, September 29, 1999). Subsequently, the Agency promulgated regulations at 40 CFR part 35, subpart B which reflect that policy with some modifications, for all but two grant programs. The two programs covered under the September 1991 document, but not affected by the regulations include grants authorized by section 104(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and grants for the Leaking Underground Storage Tank program authorized under Subtitle I of RCRA. Today EPA is providing public notice that it is updating its September 1999 policy to include two new grant programs that were authorized by the recently enacted Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA, Pub. L. 107-118). The policy also is being updated to modify the requirements for intertribal consortia to receive grants under the grant programs covered by the September 1999 document, but not covered by regulations at 40 CFR part 35, subpart B.

SBLRBRA amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to authorize funding for Brownfields revitalization grants (e.g., site assessment, cleanup, and revolving loan fund grants) and for establishing or enhancing State and tribal response programs. EPA is notifying the public today that it interprets its new authorities under section 104(k) of CERCLA to award Brownfields revitalization grants to Federally recognized Indian tribes to include awarding these grants to intertribal consortia, as that term is defined in this document. The Agency notes, however, that section 104(k)(1)(G) of CERCLA excludes Indian tribes in Alaska from the definition of entities eligible for Brownfields revitalization funding. The Agency also interprets its new authorities under section 128(a) of CERCLA to award grants to establish and enhance tribal response programs to include awarding these grants to intertribal consortia. Intertribal consortia comprised of Alaskan Indian tribes are eligible for funding under section 128(a) of CERCLA.

On September 29, 1999, EPA announced its policy regarding the award of financial assistance to intertribal consortia under the following EPA grant programs for Indian tribes: Pesticides Program Implementation (section 23(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act); Pesticides Enforcement (section 23(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act); Superfund Cooperative Agreements (section 104(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)); Leaking Underground Storage Tanks (Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2497-98(1998)); Underground Storage Tank Programs (Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2499(1998)); and Hazardous Waste Management Programs (Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2499(1998)). The September 1999 tribal consortia funding policy states:

In the absence of clear Congressional intent to the contrary and in accordance with the definition and requirements set forth [in the September 29, 1999 Federal Register notice], EPA interprets its statutory authorities to award grants to Indian tribes to include the authority to award grants to intertribal consortia. If Indian tribes are eligible for a particular grant, EPA will also treat a group of individually eligible tribes (an intertribal consortium) as eligible for the grant. EPA believes this approach is a practical, reasonable and prudent way to help interested tribes strengthen environmental protection when limited funding is available to support tribal environmental program. Tribes that form an intertribal consortium may be able to use their limited resources more efficiently and address environmental issues more effectively than they could if each tribe developed and maintained separate environmental programs. Moreover, EPA believes that making grants for tribes available to intertribal consortia is consistent with President Clinton's Executive Order 13084, which encourages agencies to adopt “flexible policy approaches” and to respect the principle of Indian self-government and sovereignty.

Executive Order 13084 was revoked by Executive Order 13175 dated November 6, 2000, which also encourages agencies to adopt flexible policy approaches and to recognize tribal self government and sovereignty. At the time the September 1999 document was published, EPA had also announced the same policy and rationale in a proposed rulemaking governing the award of environmental program grants to Indian tribes, which has since been promulgated as a final rule and is codified at 40 CFR part 35, subpart B (66 FR 3782, January 16, 2001). In the September 1999 document, EPA explained that it may change this policy as a result of comments received in response to the proposed rule governing grants to intertribal consortia at 40 CFR part 35, subpart B (i.e., grants under the Pesticides Program Implementation; Pesticides Enforcement; Underground Storage Tank Programs; and Hazardous Waste Management Programs). EPA further explained in September 1999 that if EPA changed the treatment of consortia in grant programs covered by 40 CFR part 35, subpart B, then EPA would likely issue a subsequent Federal Register notice so as to treat grants to intertribal consortia consistently in all programs covered by the September 1999 Federal Register document. Because EPA made some changes to the eligibility requirements for intertribal consortia in the final rulemaking, this document makes the same changes for grants to intertribal consortia under the following two EPA grant programs for Indian tribes: Superfund Cooperative Agreements (section 104(d) of the CERCLA); Leaking Underground Storage Tanks (Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L.w 105-276, 112 Stat. 2461, 2497-98(1998)). In addition, with this document, EPA announces that it will apply the policy to grants for Brownfields revitalization awarded under section 104(k) of CERCLA and to grants for establishing or enhancing tribal response programs awarded under section 128(a) of CERCLA.

Federally recognized Indian tribes, other than excluded Indian tribes in Alaska, are eligible for Brownfields revitalization grants awarded under section 104(k) of CERCLA in accordance with the definition of “eligible entity” set forth at section 104(k)(1)(G) of CERCLA. Alaska Native Regional Corporations and Alaska Native Village Corporations, as those terms are defined in the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et. seq., and the Metlakata Indian community are included within the definition of entities eligible for Brownfields funding under CERCLA 104(k)(1)(H). Although Alaska Native Village Corporations and Alaska Native Regional Corporations as those terms are defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1601 and following) are eligible for Brownfields revitalization grants awarded under section 104(k) of CERCLA, EPA will not consider an intertribal consortium that includes one or more such Alaska Native corporations to be eligible for 104(k) grants as an intertribal consortium under this document. Those Alaska Native corporations are not federally recognized Indian tribes. Groups of Alaska Native Village Corporations and Alaska Native Regional Corporations may, however, apply for funding in combined applications as “coalitions” (i.e., one eligible entity that will be accountable for grant funds applies on behalf of itself and one or more other eligible entities) under EPA's guidelines for applying for SBLRBRA grants.

EPA has determined that it would be inconsistent with EPA's policy and Congressional intent to allow intertribal consortia comprised of excluded Indian tribes in Alaska to be eligible for Brownfields revitalization grants awarded under section 104(k) of CERCLA. However, neither the eligibility provisions of section 128(a)(1)(A) of CERCLA nor the legislative history of section 128, indicate that Congress intended for Indian tribes in Alaska to be ineligible for grants to establish or enhance tribal response programs. EPA will, therefore, consider intertribal consortia comprised of Indian tribes in Alaska to be eligible for funding under section 128(a) of CERCLA. The rationale stated in the September 29, 1999 document for EPA's decision to allow intertribal consortia to be eligible for funding also applies to funding under section 104(k) and section 128(a) of CERCLA, to the extent consistent with Congressional intent: “EPA believes this approach is a practical, reasonable and prudent way to help interested Indian tribes strengthen environmental protection when limited funding is available to support tribal environmental programs. Indian tribes that form an intertribal consortium may be able to use their limited resources more efficiently and address environmental issues more effectively than they could if each tribe developed and maintained separate environmental programs.” Making grants for Indian tribes available to intertribal consortia is consistent with Executive Order 3175, which encourages agencies to adopt “flexible policy approaches” and to respect the principle of Indian self-government and sovereignty.

An organization that characterizes itself as an intertribal consortium that does not meet the definition of intertribal consortium or the eligibility requirements in this document may be eligible for funding under section 104(k) of CERCLA or other EPA grant programs, but not as an intertribal consortium under this document. This is because some of EPA's grant programs are available to a broad range of recipients, such as public or nonprofit private agencies, institutions, organizations, and individuals. Thus, an intertribal organization that does not meet the definition of an intertribal consortium or the requirements of this document nonetheless may be eligible for a grant as another type of organization, such as a nonprofit agency. This document is not intended to affect the eligibility status of intertribal consortia for grants in their capacity as other types of eligible organizations. If the organization meets the definition of a non profit organization provided in section 4(6) of the Federal Financial Management Assistance Act of 1999, Pub. L. 106-107, it will be eligible for funding as a non profit organization under section 104(k)(3) of CERCLA for Brownfields site remediation grants and under section 104(k)(6) Brownfields research, training, and technical assistance grants. Non profit organizations are not eligible for grants to establish or enhance State and tribal response programs under section 128(a) of CERCLA.

II. EPA Policy

The following definition and statement of eligibility requirements for awarding grants to intertribal consortia apply to the following grant programs: Superfund Cooperative Agreements (section 104(d) of the CERCLA); Leaking Underground Storage Tanks (Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2497-98(1998)); Brownfields Revitalization (section 104(k) of CERCLA); and Tribal Response Programs (section 128(a) of CERCLA).

Definition: The term intertribal consortium means a partnership between two or more federally recognized Indian tribes that is authorized by the governing bodies of those Indian tribes to apply for and receive assistance under one of the EPA grant programs covered by this document.

Eligibility Requirements for an Intertribal Consortium: (a) An intertribal consortium is eligible to receive a grant from EPA under the statutes authorizing grants to federally recognized Indian tribes listed in this document only if the intertribal consortium demonstrates that all members of the consortium (1) meet the eligibility requirements for the grant and (2) authorize the consortium to apply for and receive assistance in accordance with paragraph (b).

(b) An intertribal consortium must submit to EPA adequate documentation of: (1) The existence of the partnership between federally recognized Indian Tribal governments, and (2) Authorization of the consortium by all its members to apply for and receive the grant(s) for which the consortium has applied.

Dated: October 29, 2002.

Marianne Lamont Horinko,

Assistant Administrator, Office of Solid Waste and Emergency Response.