[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30401]
[[Page Unknown]]
[Federal Register: December 14, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123, 124, 131, 142, 144, 145, 233, and 501
[FRL-5119-9]
RIN 2020-AA20
Indian Tribes; Eligibility for Program Authorization
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action amends regulations addressing the role of Indian
tribes so as to make it easier for tribes to obtain EPA approval to
assume the role Congress envisioned for them under certain
environmental statutes. Three EPA regulatory statutes address the
tribal role specifically by authorizing EPA to treat tribes in a manner
similar to that in which it treats states: The Clean Water Act (CWA),
the Safe Drinking Water Act (SDWA), and the Clean Air Act (CAA). All
three statutes specify that, in order to receive such treatment, a
tribe must be federally recognized and possess a governing body
carrying out substantial duties and powers. In addition, each requires
that a tribe possess civil regulatory jurisdiction to carry out the
functions it seeks to exercise. Finally, all three require that a tribe
be reasonably expected to be capable of carrying out those functions.
The Agency initially chose to implement provisions of the Clean
Water and Safe Drinking Water Acts regarding Indian tribes by
establishing a formal prequalification process under which tribes can
seek eligibility under these statutes. This prequalification process
has in the past been referred to as approval for ``treatment as a
state'' (``TAS''). Tribes that obtain such approval then become
eligible to apply for certain grants and program approvals available to
states.
The Agency's ``TAS'' prequalification process has proven to be
burdensome, time-consuming and offensive to tribes. Accordingly, EPA
has adopted a new policy to improve and simplify the process and this
regulation implements the new policy. To the extent possible, the
Agency plans to use the same process in future regulations regarding
determinations of tribal eligibility.
As of the effective date of this regulation, it is the intent of
EPA to follow the new process in making determinations on tribal
eligibility for program authorization. With respect to pending ``TAS''
applications for program authorization, the Agency will utilize the
information contained in such applications to determine tribes'
eligibility and tribes will be requested to supplement such
applications only to the extent necessary to determine program
eligibility.
EFFECTIVE DATE: December 14, 1994.
FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office of Federal
Activities (2251), Environmental Protection Agency, 401 M Street SW.,
Washington, DC 20460, (202) 260-8792.
SUPPLEMENTARY INFORMATION:
Background
In order to simplify and streamline the process of assessing tribal
eligibility for program authorization while still ensuring full
compliance with all applicable statutes, on March 23, 1994, EPA
published in the Federal Register (59 FR 13819) a notice of proposed
rulemaking to amend regulations governing the process whereby Indian
tribes become eligible to assume a role in implementing the
environmental statutes on tribal land comparable to the role states
play on state land.
EPA recognizes that tribes are sovereign nations with a unique
legal status and a relationship to the federal government that is
significantly different than that of states. EPA believes that Congress
did not intend to alter this when it authorized treatment of tribes
``as States;'' rather, the purpose was to reflect an intent that,
insofar as possible, tribes should assume a role in implementing the
environmental statutes on tribal land comparable to the role states
play on state land.
The proposals set forth in the proposed rule involved the
following:
1. Elimination of ``TAS'' review as a separate step in the process.
No statute compels the use of a formal ``TAS'' or other
prequalification process separate from approval of the underlying
request for program approval. The only requirements imposed by statute
are that, to be eligible for program authorization, a tribe must be
federally recognized, have a governing body carrying out substantial
duties and powers, and have adequate jurisdiction and capability to
carry out the proposed activities. Thus, EPA may authorize a tribal
program without formally designating the tribe as ``eligible for TAS,''
so long as the Agency establishes that the tribe meets the applicable
statutory requirements. In other words, the Agency can ensure
compliance with statutory mandates without requiring tribes to undergo
a discrete, formal process of seeking ``TAS'' approval.
Accordingly, EPA is amending its regulations to eliminate ``TAS''
review as a separate step in the processing of a tribal application for
program approval. Under the new, simplified process, the Agency will
ensure compliance with statutory requirements as an integral part of
the process of reviewing program approval applications. To the extent
that this rule or preamble conflicts with the language of previous
rules and preambles, the language herein shall be controlling.
2. Discontinuance of use of the term ``treatment as a state.'' To
the extent possible, the rule amends existing regulations so as to
discontinue use of the term ``treatment as a state''; however, since
the phrase is included in several statutes, its continued use may
sometimes be necessary.
3. Simplified determination as to ``recognition'' and
``government.'' A tribe typically establishes recognition by showing
its inclusion on the list of federally recognized Tribes published by
the Secretary of the Interior in the Federal Register. A tribe
establishes that it meets the governmental duties and powers
requirement with a narrative statement describing the form of the
tribal government and the types of functions it performs, and
identifying the sources of the tribe's governmental authority.
As a general rule, the ``recognition'' and ``governmental''
requirements are essentially the same under the Clean Water, Safe
Drinking Water and Clean Air Acts. The new process will reflect this by
establishing identical requirements for making this showing under each
statute. Moreover, the fact that a tribe has met the recognition or
governmental functions requirement under either of the Water Acts or
the Clean Air Act will establish that it meets those requirements under
both statutes. To facilitate review of tribal applications, EPA will
request that tribal applications inform EPA whether a tribe has been
approved for ``TAS'' (under the old process) or deemed eligible to
receive authorization (under the revised process) for any other
program.
A tribe that has not done so may establish that it has been
federally recognized by simply stating in its program authorization
application that it appears on the list of federally recognized tribes
that the Secretary of the Interior publishes periodically in the
Federal Register. If the tribe notifies EPA that it has been recognized
but does not appear on this list because the list has not been updated,
EPA will seek to verify the fact of recognition with the Department of
the Interior.
A tribe that has not yet made its initial ``governmental'' showing
can do so by certifying that it has a government carrying out
substantial functions. A tribe will be able to make the required
certification if it is currently performing governmental functions to
promote the public health, safety, and welfare of its population.
Examples of such functions include, but are not limited to, levying
taxes, acquiring land by exercise of the power of eminent domain, and
exercising police power. Such examples should be included in a
narrative statement supporting the certification, (1) describing the
form of tribal government and the types of essential governmental
functions currently performed, and (2) identifying the legal
authorities for performing those functions (e.g., tribal constitutions
or codes). It should be relatively easy for tribes to meet this
requirement without submitting copies of specific documents unless
requested to do so by the Agency.
4. Simplified jurisdictional analysis. A tribe may have
jurisdiction over, and capability to carry out, certain activities
(e.g., protection of the quality of a particular lake for the Clean
Lakes program under the Clean Water Act), but not others (e.g., waste
management on a portion of the reservation far removed from any lakes).
For this reason, EPA believes that the Agency must make a specific
determination that a tribe has adequate jurisdictional authority and
administrative and programmatic capability before it approves each
tribal program. This will ensure that tribes meet the statutory
requirements Congress has established as prerequisites to tribal
eligibility for each particular program.
The portion of the jurisdictional determination under which
governments comment on tribal jurisdiction will be substantially
altered under this Rule. These changes are outlined below.
For approvals of all Drinking Water regulatory programs and most
Clean Water programs under existing regulations, EPA will not authorize
a state to operate a program without determining that the state has
adequate authority to carry out those actions required to run the
program. See e.g. 40 CFR 142.10 (PWS), 145.24 (UIC). This applies also
to a tribe seeking program approval, and ensures that a close analysis
of the legal basis of a tribe's jurisdiction will occur before program
authorization.
Accordingly, a separate ``TAS'' jurisdictional review is not needed
to verify that a tribe meets the statutory jurisdictional requirement
and, therefore, will be eliminated for all programs under the Safe
Drinking Water Act, and for the Clean Water Act's 404 and NPDES
programs. This change will have the effect only of eliminating
duplicative requirements. In no case can a tribe receive program
approval until the Agency has received full and adequate input
concerning the scope and extent of the tribe's jurisdiction. Moreover,
EPA will expect each tribe seeking program approval to provide a
precise description of the physical extent and boundaries of the area
for which it seeks regulatory authority. This description should
ordinarily include a map and should identify the sources or systems to
be regulated by the tribe.
However, for the Water Quality Standards program, there is no
review of tribal civil regulatory authority as part of the standards
approval process under section 303(c) of the Clean Water Act.
Accordingly, for that program, a comment process will be retained.
However, the Agency wishes to clarify the operation of that process by
reiterating that comments must be offered in a timely manner, and,
further, by specifying that where no timely comments are offered, the
Agency will conclude that there is no objection to the tribal
applicant's jurisdictional assertion. Moreover, to raise a competing or
conflicting claim a comment must clearly explain the substance, basis,
and extent of its objections. Finally, when questions are raised
concerning a tribe's jurisdiction, EPA may, in its discretion, seek
additional information from the tribe or the commenting party, and may
consult as it sees fit with other federal agencies prior to making a
determination as to tribal jurisdictional authority, but is not
required to do so. Henceforth, EPA will no longer be required, by
regulation, to consult with the Department of the Interior.
Finally, the Agency notes that certain disputes concerning tribal
jurisdiction may be relevant to a tribe's authority to conduct
activities and obtain program approval under several environmental
statutes. For example, if a tribe and a state or another tribe disagree
as to the boundary of a particular tribe's reservation, each time the
tribe seeks to assert authority over the disputed area, the dispute
will recur. The Agency recognizes that its determinations regarding
tribal jurisdiction apply only to activities within the scope of EPA
programs. However, it also believes that, once it makes a
jurisdictional determination in response to a tribal application
regarding any EPA program, it will ordinarily make the same
determination for other programs unless a subsequent application raises
different legal issues. Thus, for example, once the Agency has arrived
at a position concerning a boundary dispute, it will not alter that
position in the absence of significant new factual or legal
information. By contrast, however, a determination that a tribe has
inherent jurisdiction to regulate activities in one medium might not
conclusively establish its jurisdiction over activities in another
medium. See generally Discussion of inherent tribal authority in Water
Quality Standards Regulation, 56 FR 64877-64879.
Under the new approval process, as under the old, the Agency will
continue to retain authority to limit its approval of a tribal
application to those land areas where the tribe has demonstrated
jurisdiction. This would allow EPA to approve the portion of a tribal
application covering certain areas, while withholding approval of the
portion of an application addressing those land areas where tribal
authority has not been satisfactorily established. See, e.g., 53 FR
37395, 37402 (September 26, 1988) (SDWA); 54 FR 14353, 14355 (April 11,
1989) (Clean Water Act Grants); 54 FR 39097, 39102 (September 12, 1989)
(Clean Water Act Water Quality Standards); 58 FR 8171, 8176 (February
11, 1993) (Clean Water Act section 404); 58 FR 67966, 67972 (Clean
Water Act NPDES) (December 22, 1993).
5. More flexible requirements to establish capability. EPA must
continue to make a separate determination of tribal capability for each
program for which it approves a tribe. However, the Safe Drinking Water
Act, Water Quality Standards, Section 404, and NPDES regulations will
be amended to conform to the CWA grant regulations, which do not
specifically prescribe the material a tribe must submit to establish
capability. Ordinarily, the inquiry EPA will make into the capability
of any applicant, tribal or state, for a grant or program approval will
be sufficient to enable the Agency to determine whether a tribe meets
the statutory capability requirement. See, e.g., 40 CFR part 31 (grant
regulations applicable to states and tribes); 40 CFR 142.3 (Public
Water System primary enforcement responsibility requirements at parts
141, 142 apply to tribes); Sec. 145.1(h) (Underground Injection Control
requirements of parts 124, 144, 145, and 146 that apply to states
generally apply to tribes).
Nevertheless, EPA may request that the tribe provide a narrative
statement or other documents showing that the tribe is capable of
administering the program for which it is seeking approval. In
evaluating tribal capability, EPA will consider:
(1) The tribe's previous management experience;
(2) Existing environmental or public health programs administered
by the tribe;
(3) The mechanisms in place for carrying out the executive,
legislative and judicial functions of the tribal government;
(4) The relationship between regulated entities and the
administrative agency of the tribal government which will be the
regulator; and
(5) The technical and administrative capabilities of the staff to
administer and manage the program.
EPA recognizes that certain tribes may not have substantial
experience administering environmental programs; a lack of such
experience will not preclude a tribe from demonstrating capability, so
long as it shows that it has the necessary management and technical and
related skills or submits a plan describing how it will acquire those
skills.
The notice of proposed rulemaking invited public comments on the
proposed amendments, which would be considered before adoption of a
final rule. The public comment period closed on May 23, 1994.
Analysis of Comments
A total of seven commenters responded to the solicitation of
comments during the public comment period. Of these, four expressed
support for the proposed changes in varying degrees, one of whom
expressed strong support and others supported the changes generally but
disagreed with certain aspects or had specific recommendations for
other changes. One commenter did not express support or opposition but
urged EPA to continue to stress that tribes should enact water quality
programs similar to current state water quality programs. Another
commenter, while not explicitly supporting the proposed amendments,
urged that they be extended to include two other programs under the
Safe Drinking Water Act. A final commenter opposed one aspect of the
simplification process as it related to state review of tribal
applications. These comments, suggested changes, and the EPA responses
thereto, are set forth below.
Comment: Consistent with the EPA Indian Policy and sound
administrative practice, EPA should recognize tribal authority over all
environmental matters within reservation boundaries, without requiring
tribes to demonstrate their inherent authority.
Response: EPA recognizes the importance of comprehensive management
of reservation environments. However, EPA does not have the legal
authority to expand the scope of tribal jurisdiction. Consequently, EPA
must continue to analyze each tribal claim of jurisdiction in light of
appropriate statutory and common law principles to ensure that the
tribe in fact has adequate authority to carry out the functions it
proposes to undertake.
Comment: EPA is to be commended for eliminating the state
opportunity to comment on tribal jurisdictional assertions for all SDWA
programs and for the Clean Water Act Section 404 and NPDES programs.
However, since tribes cannot comment on state jurisdictional assertions
in any programs, in fairness EPA should also eliminate state
opportunity to comment on tribal jurisdictional assertions regarding
Water Quality Standards.
Response: EPA continues to believe that it has the legal authority
to approve a tribal Water Quality Standards program only upon a
determination that the tribe has adequate authority to operate that
program, and that state comments may be useful to the Agency in making
that determination.
Comment: EPA could further simplify the TAS process by providing
that, when EPA reviews a new TAS application for a tribe that has
already obtained TAS approval for one program, EPA will rely on the
jurisdictional assertions in the prior approval to establish
jurisdiction for a subsequent program. Where the earlier jurisdictional
assertions do not establish jurisdiction adequately for the subsequent
application, EPA would notify the tribe of any deficiencies and the
tribe could then supplement or amend the original jurisdictional
statement.
Response: EPA agrees with the commenter that this would simplify
the process. However, EPA believes that it should look in the first
instance to each tribal applicant's views as to its own jurisdiction.
Thus a tribe that believes it is appropriate to provide more
information regarding jurisdiction on a subsequent application than it
provided on a previous one should be able to do so directly, without
waiting for EPA to determine, after it begins processing an
application, that more information is needed. EPA believes that under
the current proposal, a tribe that wishes to use the process described
by the commenter could do so by expressly incorporating the earlier
jurisdictional assertion into a subsequent application.
In addition, the jurisdictional approach the Agency has determined
the Clean Air Act allows it to follow differs substantially from the
approach it follows under the Water Acts. For this reason, EPA does not
believe it would be appropriate to establish a process under which a
tribe would assume that, unless advised to the contrary, a
jurisdictional assertion that was adequate under the Clean Air Act
would also be adequate under one of the Water Acts.
Comment: States should be able to comment on the jurisdictional
assertions contained in tribal grant applications. Also, states should
not be totally bypassed in decisions to approve tribal regulatory
programs.
Response: As stated in the Federal Register notice amending the EPA
financial assistance regulations for tribes, EPA has extensive
experience awarding grants to tribes, and has concluded that it is
fully capable of evaluating grant applications to ensure adequate
tribal jurisdiction without seeking comments from states. EPA agrees
that it should obtain information from states concerning tribal
applications for program approval, and the proposed regulatory changes
would ensure that this occurs.
Comment: One commenter, while supporting the intent of the proposed
revisions, urged that (1) EPA regulations relating to Section 401
Certification (40 CFR part 121) be amended to expressly include Indian
tribes so as to facilitate tribal involvement in the section 401
process, to resolve disagreements between tribes and states and to
resolve disputes between tribes as well; (2) an apparent inconsistency
in the definition of ``State'' in Sec. 122.2 (which references Indian
tribes that have obtained approval of their NPDES program but not their
WQS program) be changed so that water quality standards set by approved
tribes will be protected in NPDES permits under Secs. 122.44, 124.53
and similar provisions; and (3) the regulations for the dispute
resolution mechanism, 40 CFR 131.7, be revised to expressly authorize
the use of this process for resolving disputes between two or more
tribes that have differing standards for common bodies of water.
Response: (1) EPA believes it is unnecessary to amend the 401
regulations in Part 121 through the present TAS revisions rule in order
to clarify that tribes have the authority to provide 401 certifications
once they have approved water quality standards (WQS). It is EPA's
position that tribes clearly have 401 authority once they receive
approval of their WQS as specified in 40 CFR 131.4(c).
(2) EPA also does not believe that changes are necessary to the
definition of ``State'' in Sec. 122.2. The intent of EPA's regulations
was to require the permitting authority (whether EPA or an authorized
NPDES State) to issue permits which comply with all applicable water
quality standards (including WQS approved by EPA for an Indian tribe).
EPA interprets its regulations to require that all NPDES permits comply
with applicable and EPA approved tribal WQS regardless of whether the
tribe has been authorized as a permitting authority for the NPDES
program. EPA's new regulatory provision in 40 CFR 124.51(c) supports
the tribes' 401 certification authority and reads as follows: ``As
stated in 40 CFR 131.4, an Indian Tribe that is qualified for Treatment
as a State for purposes of the WQS program is likewise qualified for
treatment as a State for purposes of State certification of WQS
pursuant to section 401(a)(1) of the Act [Clean Water Act] and Subpart
D of this part.'' The preamble of the final NPDES rule at 58 FR 67967
(December 10, 1993) discusses this new provision in more depth.
In addition, the recent EPA guidance concerning EPA's
implementation of the NPDES and sludge management programs with respect
to Federal Indian Reservations (FIRs) specifies that ``In situations
where a State is the upstream NPDES permitting authority and downstream
FIR Tribal WQS have been approved by EPA, the State will provide notice
of the preparation of a draft permit to the affected Tribe pursuant to
CWA sections 401 and 402. Under CWA sections 402(b)(3) and 40 CFR
124.12(a), the upstream NPDES state must provide an opportunity for
public hearing on the issuance of the draft permit where there is
significant public interest in so doing. Under CWA section 402(b)(5),
the affected Tribe may submit written recommendations to the permitting
State and EPA, and the failure to accept the recommendations and the
reasons for doing so. EPA can object to the upstream State permit where
EPA believes that the reasons for rejecting the recommendations are
inadequate.'' Therefore, this guidance reflects EPA's general view that
applicable tribal WQS are to be reflected in all water quality-based
NPDES permit limits. When the Part 122-124 regulations refer to WQS of
a ``State,'' this also refers to Indian tribes with EPA approved WQS.
(3) EPA previously responded to comments regarding the scope of the
dispute resolution mechanism on the rule allowing tribes to establish
WQS (56 FR 64876, December 12, 1991). At that time, OW commented that
the rule was written in this manner because Section 518 of the Clean
Water Act specified that a dispute resolution mechanism be developed to
resolve disputes arising between a tribe and a state. OW further
commented that EPA believes the requirements that the State standards
provide for protection of downstream standards in Sec. 131.10(b) of the
WQS Regulation, supported by a 25 year history of informal negotiation
of issues between states, provides sufficient basis for resolving
disputes between two states or two tribes. 56 FR 64888-64889. Further
comments on this issue are beyond the scope of this rule and,
therefore, EPA declines to revisit it at this time.
Comment: Although the proposed regulation would simplify the TAS
process for a number of programs, it would not apply expressly to
wellhead protection programs or sole source aquifer demonstration
programs under the Safe Drinking Water Act. The Agency should consider
seriously the inclusion of these important programs under the new
regulation as well.
Response: EPA does not believe that it would be appropriate to
expand the scope of the regulation at this stage of its development.
However, as pointed out previously in the Summary of this regulation,
to the extent possible, the Agency plans to use the new process in
future regulations regarding determinations of tribal eligibility.
Conclusion
Accordingly, based on the comments received and the analysis of
those comments as set forth above, EPA believes that the proposed
regulatory amendments as published in the Federal Register on March 23,
1994 (59 FR 13819) should be adopted as a final rule as discussed above
and set forth below.
Executive Order 12866
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
Regulatory Flexibility Act
Pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), EPA
certifies that this rule will not have a significant economic impact on
a substantial number of small entities because it merely revises
existing procedural requirements for Indian tribes by making them
simpler and less burdensome; Indian tribes are not considered small
entities under this rulemaking for RFA purposes.
Paperwork Reduction Act
The proposed regulations contain no new or additional information
collection activities and, therefore, no information collection request
will be submitted to the Office of Management and Budget for review in
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 123
Administrative practice and procedure, Confidential business
information, Environmental protection, Hazardous substances, Indian
lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Waste treatment and disposal, Water
pollution control, Water supply.
40 CFR Part 124
Administrative practice and procedure, Air pollution control,
Environmental protection, Hazardous substances, Indian lands, Reporting
and recordkeeping requirements, Sewage disposal, Waste treatment and
disposal, Water pollution control, Water supply.
40 CFR Part 131
Environmental protection, Reporting and recordkeeping requirements,
Water pollution control.
40 CFR Part 142
Environmental protection, Administrative practice and procedure,
Chemicals, Indians--lands, Radiation protection, Reporting and
recordkeeping requirements, Water supply.
40 CFR Part 144
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Indians--lands,
Reporting and recordkeeping requirements, Surety bonds, Water supply.
40 CFR Part 145
Environmental protection, Indians--lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Water
supply.
40 CFR Part 233
Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 501
Administrative practice and procedure, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Sewage disposal.
Dated: November 18, 1994.
Fred Hansen,
Acting Administrator.
For the reasons set forth in the preamble, 40 CFR parts 123, 124,
131, 142, 144, 145, 233, and 501 are amended as follows:
PART 123--STATE PROGRAM REQUIREMENTS
1. The authority citation for part 123 continues to read as
follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Sec. 123.1 [Amended]
2. Section 123.1(h) is amended by removing the phrase ``treated as
a State.''
Sec. 123.21 [Amended]
3. In Sec. 123.21 paragraph (a)(1) is amended by revising the
phrase ``eligible for treatment as a state in accordance with
Sec. 123.33(e)'' to read ``in accordance with Sec. 123.33(b)''.
4. In Sec. 123.21 paragraph (b)(2) is amended by removing the
phrase ``for treatment as a State'' both times they appear and by
revising the text ``Sec. 123.33(e)'' to read ``Sec. 123.33(b)''.
Sec. 123.22 [Amended]
5. In Sec. 123.22 paragraph (g) is amended by removing the phrase
``for treatment as a State'' and by revising the text
``Sec. 123.33(e)'' to read ``Sec. 123.33(b)''.
Sec. 123.31 [Amended]
6. The heading of Sec. 123.31 is amended by revising the phrase
``for treatment of Indian Tribes as States'' to read ``for eligibility
of Indian Tribes.''
7. In Sec. 123.31 paragraph (a) is amended by removing the phrase
``a State for purposes of making the Tribe.''
8. In Sec. 123.31 paragraph (a)(4) is amended by removing all
language following ``in a manner consistent with the terms and purposes
of the Act and applicable regulations, of an effective NPDES permit
program.''
Sec. 123.32 [Amended]
9. The heading of Sec. 123.32 is amended by removing ``for
treatment as a State.''
10. In Sec. 123.32 the introductory text is amended by removing the
phrase ``for treatment as a State.''
11. In Sec. 123.32 paragraph (b) introductory text is amended by
revising the words ``This statement shall'' to read ``This statement
should.''
12. In Sec. 123.32 paragraph (c) is amended by revising the phrase
``a copy of all documents'' to read ``copies of those documents'' and
by revising the phrase ``support the Tribe's assertion'' to read ``the
Tribe believes are relevant to its assertion.''
13. In Sec. 123.32 paragraph (d) introductory text is amended by
revising the phrase ``The statement shall include'' to read ``The
statement should include.''
14. In Sec. 123.32 paragraph (d)(1) is amended by revising the
words ``including, but not limited to,'' to read ``which may include.''
15. In Sec. 123.32 paragraph (e) is amended by revising the phrase
``a Tribal request for treatment as a State'' to read ``a Tribe's
eligibility.''
16. In Sec. 123.32 paragraph (f) is revised to read as follows:
Sec. 123.32 Request by an Indian Tribe for a determination of
eligibility.
* * * * *
(f) If the Administrator or his or her delegatee has previously
determined that a Tribe has met the prerequisites that make it eligible
to assume a role similar to that of a state as provided by statute
under the Safe Drinking Water Act, the Clean Water Act, or the Clean
Air Act, then that Tribe need provide only that information unique to
the NPDES program which is requested by the Regional Administrator.
Sec. 123.33 [Amended]
17. The heading of Sec. 123.33 is amended by removing the phrase
``for treatment as a State.''
18. In Sec. 123.33 paragraph (a) is amended by removing the phrase
``for treatment as a State.''
19. In Sec. 123.33 paragraphs (b),(c), (d), and (e) are removed and
paragraph (f) is redesignated as paragraph (b).
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C.
7401 et seq.
Sec. 124.2 [Amended]
2. In Sec. 124.2 the definition of ``State'' is amended by revising
the phrase ``an Indian Tribe treated as a State'' to read ``an Indian
Tribe that meets the statutory criteria which authorize EPA to treat
the Tribe in a manner similar to that in which it treats a State''.
Sec. 124.51 [Amended]
3. In Sec. 124.51 paragraph (c) is amended by revising the phrase
``is qualified for treatment as a State'' to read ``meets the statutory
criteria which authorize EPA to treat the Tribe in a manner similar to
that in which it treats a State'' and by revising the phrase ``likewise
qualified for treatment as a State'' to read ``likewise qualified for
such treatment.''
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 131.3 [Amended]
2. In Sec. 131.3 paragraph (j) is amended by revising the phrase
``qualify for treatment as States for purposes of water quality
standards'' to read ``to be eligible for purposes of a water quality
standards program''.
Sec. 131.4 [Amended]
3. In Sec. 131.4 paragraph (c) is amended by revising the phrase
``qualifies for treatment as a State'' in both places that it appears
to read ``is eligible to the same extent as a State''.
Sec. 131.7 [Amended]
4. In Sec. 131.7 paragraph (b)(2) is amended by revising the phrase
``qualifies to be treated as a State'' to read ``is eligible to the
same extent as a State''.
Sec. 131.8 [Amended]
5. The heading of Sec. 131.8 is amended by revising the phrase ``to
be treated as States for purposes of water quality standards'' to read
``to administer a water quality standards program''.
6. In Sec. 131.8 paragraph (a) introductory text is amended by
revising the phrase ``treat an Indian Tribe as a State for purposes of
the water quality standards program'' to read ``accept and approve a
tribal application for purposes of administering a water quality
standards program''.
7. In Sec. 131.8 paragraph (b) introductory text is amended by
revising the phrase ``for treatment as states for purposes of water
quality standards'' to read ``for administration of a water quality
standards program''.
8. In Sec. 131.8 paragraph (b)(2) introductory text is amended by
revising the word ``shall'' to read ``should''.
9. In Sec. 131.8 paragraph (b)(3) introductory text is amended by
revising the word ``shall'' to read ``should''.
10. In Sec. 131.8 paragraph (b)(3)(ii) is amended by removing the
semi-colon and adding to the end of the paragraph the phrase ``and
which may include a copy of documents such as Tribal constitutions, by-
laws, charters, executive orders, codes, ordinances, and/or resolutions
which support the Tribe's assertion of authority; and''.
11. Section 131.8(b)(3)(iii) is removed.
12. In Sec. 131.8 paragraph (b)(3)(iv) is redesignated as
(b)(3)(iii).
13. In Sec. 131.8 paragraph (b)(4) introductory text is amended by
revising the word ``shall'' to read ``should''.
14. In Sec. 131.8 paragraph (b)(4)(i) is amended by revising the
phrase ``including, but not limited to'' to read ``which may include''.
15. In Sec. 131.8 paragraph (b)(5) is amended by revising the
phrase ``request for treatment as a State,'' to read ``application''.
16. In Sec. 131.8 paragraph (b)(6) is amended by revising the
phrase ``qualified for treatment as a State'' to read ``qualified for
eligibility or `treatment as a state''' and by removing the second
occurrence of the phrase ``treatment as a State''.
17. In Sec. 131.8 paragraphs (c) introductory text, (c)(1) and
(c)(2) introductory text are amended by removing the words ``for
treatment as a State''.
18. In Sec. 131.8 paragraph (c)(4) is amended by revising the
phrase ``after consultation with the Secretary of the Interior, or his
designee'' to read ``after due consideration''.
19. In Sec. 131.8 paragraph (c)(5) is amended by revising the words
``has qualified to be treated as a State for purposes of water quality
standards and that the Tribe may initiate the formulation and adoption
of water quality standards approvable under this part'' to read ``is
authorized to administer the Water Quality Standards program''.
PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for part 142 continues to read as
follows:
Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, and 300j-9.
Sec. 142.2 [Amended]
2. In Sec. 142.2 the definition of ``State'' is amended by revising
the phrase ``or an Indian Tribe treated as a State,'' to read ``or an
eligible Indian tribe''.
Sec. 142.3 [Amended]
3. In Sec. 142.3 paragraph (c) is amended by revising the phrase
``be designated by the Administrator for treatment as a State'' to read
``meet the statutory criteria at 42 U.S.C. 300j-11(b)(1)''.
Subpart H--Indian Tribes
4. The heading for subpart H of part 142 is revised to read as set
forth above.
Sec. 142.72 Requirements for Tribal eligibility.
5. The heading of Sec. 142.72 is revised to read as set forth
above.
6-7. Section 142.72 is amended by revising the introductory text
and paragraph (d) to read as follows:
Sec. 142.72 Requirements for Tribal eligibility.
The Administrator is authorized to treat an Indian Tribe as
eligible to apply for primary enforcement responsibility for the Public
Water System Program if it meets the following criteria:
* * * * *
(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.
* * * * *
Sec. 142.76 [Amended]
8. The heading of Sec. 142.76 is amended by revising the phrase
``of treatment as a State'' to read ``of eligibility''.
9. Section 142.76 is amended by revising in the introductory text
the phrase ``qualifies for treatment as a State pursuant to'' to read
``meets the criteria of.''
10. In Sec. 142.76 paragraph (b) introductory text is amended by
revising the word ``shall'' to read ``should''.
11. In Sec. 142.76 paragraph (c) is amended by revising the word
``all'' to read ``those'' and by revising the phrase ``support the
Tribe's asserted jurisdiction'' to read ``the Tribe believes are
relevant to its assertions regarding jurisdiction''.
12. In Sec. 142.76 paragraph (d) introductory text is amended by
revising the word ``shall'' to read ``should''.
13. In Sec. 142.76 paragraph (d)(1) is amended by revising the
words ``including, but not limited to'' to read ``which may include''.
14. In Sec. 142.76 paragraph (e) is amended by revising the phrase
``a Tribal request for treatment as a State'' to read ``a Tribe's
eligibility''.
15. In Sec. 142.76 paragraph (f) is revised to read as follows:
Sec. 142.76 Request by an Indian tribe for a determination of
eligibility.
* * * * *
(f) If the Administrator has previously determined that a Tribe has
met the prerequisites that make it eligible to assume a role similar to
that of a state as provided by statute under the Safe Drinking Water
Act, the Clean Water Act, or the Clean Air Act, then that Tribe need
provide only that information unique to the Public Water System program
(paragraph (c), (d)(5) and (6) of this section).
Sec. 142.78 [Amended]
16. The heading of Sec. 142.78 is amended by removing the phrase
``for treatment as a State''.
17. In Sec. 142.78 paragraph (a) is amended by removing the words
``for treatment as a State submitted pursuant to Sec. 142.76''.
18. In Sec. 142.78 paragraphs (b), (c) and (d) are removed and
paragraph (e) is redesignated as (b) and amended by revising the
language ``If the Administrator determines that a Tribe meets the
requirements of Sec. 142.72, the Indian Tribe is then eligible to apply
for'' to read ``A tribe that meets the requirements of Sec. 142.72 is
eligible to apply for''.
PART 144--UNDERGROUND INJECTION CONTROL PROGRAM
1. The authority citation for part 144 continues to read as
follows:
Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq;
Resource Conservation and Recovery Act, 42 U.S.C. 6902 et seq.
2. Section 144.3 is amended by adding the definition of ``eligible
Indian tribe'' in alphabetical order to read as follows:
Sec. 144.3 Definitions.
* * * * *
Eligible Indian Tribe is a Tribe that meets the statutory
requirements established at 42 U.S.C. 300j-11(b)(1).
* * * * *
PART 145--STATE UIC PROGRAM REQUIREMENTS
1. The authority citation for part 145 continues to read as
follows:
Authority: 42 U.S.C. 300f et seq.
Sec. 145.1 [Amended]
2. In Sec. 145.1 paragraph (h) is amended by adding the word
``eligible'' between ``to'' and ``Indian Tribes'' in the first
sentence; and by removing the second sentence.
Subpart E--Indian Tribes
3. The heading of subpart E of part 145 is revised to read as set
forth above.
Sec. 145.52 Requirements for Tribal eligibility.
4. The heading of Sec. 145.52 is revised to read as set forth
above.
5-6. Section 145.52 is amended by revising the introductory text
and paragraph (d) to read as follows:
Sec. 145.52 Requirements for Tribal eligibility.
The Administrator is authorized to treat an Indian Tribe as
eligible to apply for primary enforcement responsibility for the
Underground Injection Control Program if it meets the following
criteria:
* * * * *
(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.
* * * * *
Sec. 145.56 [Amended]
7. The heading of Sec. 145.56 is amended by revising the phrase
``of treatment as a State'' to read ``of eligibility''.
8. In Sec. 145.56 the introductory text is amended by revising the
phrase ``qualifies for treatment as a State pursuant to'' to read
``meets the criteria of.''
9. In Sec. 145.56 paragraph (b) introductory text is amended by
revising the word ``shall'' to read ``should''.
10. In Sec. 145.56 paragraph (c) is amended by revising the word
``all'' to read ``those,'' and by revising the phrase ``support the
Tribe's asserted jurisdiction'' to read ``the Tribe believes are
relevant to its assertions regarding jurisdiction''.
11. In Sec. 145.56 paragraph (d) introductory text is amended by
revising the word ``shall'' to read ``should''.
12. In Sec. 145.56 paragraph (d)(1) is amended by revising the
words ``including, but not limited to'' to read ``which may include.''
13. In Sec. 145.56 paragraph (e) is amended by revising the phrase
``a Tribal request for treatment as a State'' to read ``a Tribe's
eligibility''.
14. In Sec. 145.56 paragraph (f) is revised to read as follows:
Sec. 145.56 Request by an Indian Tribe for a determination of
eligibility.
* * * * *
(f) If the Administrator has previously determined that a Tribe has
met the prerequisites that make it eligible to assume a role similar to
that of a State as provided by statute under the Safe Drinking Water
Act, the Clean Water Act, or the Clean Air Act, then that Tribe need
provide only that information unique to the Underground Injection
Control program (Sec. 145.76(c) and (d)(6)).
Sec. 145.58 [Amended]
15. The heading of Sec. 145.58 is amended by removing the phrase
``for treatment as a State''.
16. In Sec. 145.58 paragraph (a) is amended by removing the phrase
``for treatment as a State submitted pursuant to Sec. 145.56''.
17. In Sec. 145.58 paragraphs (b), (c), and (d) are removed and
paragraph (e) is redesignated as paragraph (b) and amended by revising
the language ``If the Administrator determines that a Tribe meets the
requirements of Sec. 145.52, the Indian Tribe is then eligible to apply
for'' to read ``A tribe that meets the requirements of Sec. 145.52 is
eligible to apply for''.
PART 233--404 STATE PROGRAM REGULATIONS
1. The authority citation for part 233 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart G--Eligible Indian Tribes
2. The heading of subpart G of part 233 is revised to read as set
forth above.
Sec. 233.60 Requirements for eligibility.
3. The heading of Sec. 233.60 is revised to read as set forth
above.
4. Section 233.60 introductory text is amended by removing the
words ``a State for purposes of making the Tribe''.
Sec. 233.61 Determination of Tribal eligibility.
5. The heading of Sec. 233.61 is revised to read as set forth
above.
6. In Sec. 233.61 the introductory text is amended by revising the
phrase ``that it qualifies for treatment as a State pursuant to Section
518 of the Act'' to read ``that it meets the statutory criteria which
authorize EPA to treat the Tribe in a manner similar to that in which
it treats a State''; by revising the word ``shall'' in the last
sentence to read ``should.''
7. In Sec. 233.61 paragraph (b) introductory text is amended by
revising the word ``shall'' to read ``should''.
8. In Sec. 233.61 paragraph (c)(2) is amended by adding at the end
of the paragraph before the semicolon ``which may include a copy of
documents such as Tribal constitutions, by-laws, charters, executive
orders, codes, ordinances, and/or resolutions which support the Tribe's
assertion of authority''.
9. Section 233.61 (c)(3) is removed.
10. In Sec. 233.61 paragraph (d) introductory text is amended by
revising the word ``shall'' to read ``may''.
11. In Sec. 233.61 paragraph (d)(1) is amended by revising the
words ``including, but not limited to'' to read ``which may include''.
12. In Sec. 233.61 paragraph (e) is amended by revising the words
``request for treatment as a State'' to read ``application''.
13. In Sec. 233.61 paragraph (f) is amended by adding the words
``for eligibility or'' between ``has met the requirements'' and ``for
`treatment as a State.'''
Sec. 233.62 [Amended]
14. The heading of Sec. 233.62 is amended by removing the phrase
``for treatment as a State''.
15. In Sec. 233.62 paragraph (a) is amended by removing the phrase
``for treatment as a State''.
16. In Sec. 233.62 paragraphs (b), (c), (d), and (e) are removed.
17. In Sec. 233.62 paragraph (f) is redesignated as paragraph (b).
PART 501--STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS
1. The authority citation for part 501 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 501.11 [Amended]
2. In Sec. 501.11 (a)(1) remove the phrase ``eligible for treatment
as a state'' and revise the text ``Sec. 501.24(e)'' to read
``Sec. 501.24(b)''.
3. In Sec. 501.11(b)(2) remove the phrase ``for treatment as a
State'' both times it appears and revise the text ``Sec. 501.24(e)'' to
read ``Sec. 501.24(b)''.
Sec. 501.12 [Amended]
4. In Sec. 501.12(g) remove the phrase ``for treatment as a State''
and revise the text ``Sec. 501.24(e)'' to read ``Sec. 501.24(b)''.
Sec. 501.22 [Amended]
5. The heading of Sec. 501.22 is amended by revising the phrase
``for treatment of Indian Tribes as States'' to read ``for eligibility
of Indian Tribes.''
6. In Sec. 501.22 paragraph (a) introductory text is amended by
removing the phrase ``a State for purposes of making the Tribe.''
7. In Sec. 501.22 paragraph (a)(4) is amended by removing the last
two sentences.
Sec. 501.23 [Amended]
8. The heading of Sec. 501.23 is amended by removing the phrase
``for treatment as a State''.
9. In Sec. 501.23 the introductory text is amended by removing the
phrase ``for treatment as a State.''
10. In Sec. 501.23 paragraph (b) introductory text is amended by
revising the word ``shall'' to read ``should.''
11. In Sec. 501.23 paragraph (c) is amended by revising the phrase
``a copy of all documents'' to read ``copies of those documents'' and
by revising the phrase ``support the Tribe's assertion'' to read ``the
Tribe believes are relevant to its assertion.''
12. In Sec. 501.23 paragraph (d) introductory text is amended by
revising the word ``shall'' to read ``should.''
13. In Sec. 501.23 paragraph (d)(1) is amended by revising the
words ``including, but not limited to'' to read ``which may include.''
14. In Sec. 501.23 paragraph (e) is amended by revising the phrase
``a Tribal request for treatment as a State'' to read ``a Tribe's
eligibility.''
15. In Sec. 501.23 paragraph (f) is revised to read as follows:
Sec. 501.23 Request by an Indian Tribe for a determination of
eligibility.
* * * * *
(f) If the Administrator or her delegatee has previously determined
that a Tribe has met the prerequisites that make it eligible to assume
a role similar to that of a state as provided by statute under the Safe
Drinking Water Act, the Clean Water Act, or the Clean Air Act, then
that Tribe need provide only that information unique to the sludge
management program which is requested by the Regional Administrator.
Sec. 501.24 [Amended]
16. The heading of Sec. 501.24 is amended by removing the phrase
``for treatment as a State.''
17. In Sec. 501.24 paragraph (a) is amended by removing the words
``for treatment as a State.''
18. In Sec. 501.24 paragraphs (b), (c), (d), and (e) are removed
and paragraph (f) is redesignated as paragraph (b).
[FR Doc. 94-30401 Filed 12-13-94; 8:45 am]
BILLING CODE 6560-50-P
