[Federal Register Volume 59, Number 56 (Wednesday, March 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6383]
[[Page Unknown]]
[Federal Register: March 23, 1994]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 123, 124, et al.
Indian Tribes: Eligibility of Indian Tribes for Program Authorization;
Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123, 124, 131, 142, 144, 145, 233, and 501
[FRL-4852-1]
Indian Tribes: Eligibility of Indian Tribes for Program
Authorization
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed amendments.
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SUMMARY: The Clean Water and Safe Drinking Water Acts contain
provisions which authorize EPA to treat Indian tribes in substantially
the same manner in which it treats states for purposes of various types
of financial assistance and program authorization. This action proposes
amendments to regulations addressing the role of Indian tribes under
both Acts. The purpose of these proposed amendments is to make it
easier for tribes to obtain EPA approval to assume the role Congress
envisioned for them under these statutes.
DATES: EPA will accept comments on the proposed amendments in this
package until May 23, 1994.
ADDRESSES: Comments must be mailed (in duplicate, if possible) to C.
Marshall Cain, Office of Federal Activities (A-104), Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460.
The docket for this rule and copies of the public documents
submitted will be available for public inspection and copying at a
reasonable fee at EPA Headquarters Library, Public Information
Reference Unit, room 2904, 401 M Street, telephone (202) 260-5926.
FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office of Federal
Activities, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington DC 20460 at (202) 260-8792.
SUPPLEMENTARY INFORMATION: This preamble is organized according to the
following outline:
I. Introduction.
II. Regulations Governing Eligibility of Indian Tribes.
A. The Existing Process.
1. Recognition and a Government.
2. Jurisdiction and Capability.
3. Comment Process.
4. Subsequent Tribal Applications.
B. Workgroup Examination of Process.
III. Revisions to the Process in Light of Statutory Requirements.
A. Simplified Determination as To Recognition and Government.
B. Case by Case Review of Jurisdiction and Capability.
1. Simplified Jurisdictional Analysis.
2. Capability.
IV. Summary of Revised Process.
V. Executive Order 12866.
VI. Regulatory Flexibility Act.
VII. Paperwork Reduction Act.
I. Introduction: Statutory and Regulatory Background
Under its American Indian Policy, EPA works directly with tribal
governments as ``sovereign entities with primary authority and
responsibility for the reservation populace.'' At the time the Policy
was adopted in 1984, the environmental statutes which EPA administers
generally did not explicitly address the role of tribes in
environmental management, but provided for a joint state and federal
role in environmental management. Subsequently, three EPA regulatory
statutes have been amended to 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).1
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\1\In addition, the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA or ``Superfund''), which is
primarily a response, rather than a regulatory statute, has also
been amended to authorize EPA to treat tribal governments in
substantially the same way it treats states with respect to selected
provisions of the statute.
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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 of the statutory amendments 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.
All three regulatory 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. 33 U.S.C.
1377 (e), (h) (CWA); 42 U.S.C. 300j-11 (SDWA); 42 U.S.C. 7601(d) (CAA).
In addition, although there are some variations in language among the
three statutes, each requires that a tribe possess civil regulatory
jurisdiction to carry out the functions it seeks to exercise.2
Finally, all three require that a tribe be reasonably expected to be
capable of carrying out those functions.
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\2\Under the Clean Water Act, the tribe must propose to carry
out functions that ``pertain to the management and protection of
water resources which are held by an Indian tribe, held by the
United States in trust for Indians, held by a member of an Indian
tribe if such property interest is subject to a trust restriction on
alienation, or otherwise within the borders of an Indian
reservation.'' 33 U.S.C. 1377(e)(2). Under the Clean Air Act, ``the
functions to be exercised by the Indian tribe (must) pertain to the
management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction.'' 42 U.S.C. 7601(d)(2)(B). Under the SDWA, the tribe
must propose to exercise functions ``within the area of the Tribal
Government's jurisdiction.'' 42 U.S.C. 300j-11 (b)(1)(B).
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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.3
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\3\By contrast, the provision of CERCLA authorizing EPA to
afford a tribal government ``substantially the same treatment as a
State'' does not establish any specific criteria a tribe must meet
to qualify for such treatment. 42 U.S.C. 9626. EPA has established,
by regulation, the criteria of recognition, a government, and
jurisdiction, but has not adopted a formal prequalification process
under CERCLA. See 40 CFR 300.515(b). The Agency is developing
regulations pertaining to the treatment of American Indian tribes
under the Clean Air Act.
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II. Regulations Governing Eligibility of Indian Tribes
A. The Existing Process
The Agency has promulgated five regulations that utilize the
``TAS'' process to date: (1) Safe Drinking Water Act, National Drinking
Water Regulations and Underground Injection Control Regulations for
Indian Lands, 53 FR 37395 (September 26, 1988), codified at 40 CFR
parts 35, 124, 141, 142, 143, 144, 145, and 146; (2) Indian Tribes:
Water Quality Planning and Management, 54 FR 14353 (April 11, 1989),
Comprehensive Construction Grant Regulation Revision, 55 FR 27092 (June
29, 1990) (governing grant programs under the CWA), codified at 40 CFR
parts 35 and 130; (3) Amendments to the Water Quality Standards
Regulation that Pertain to Standards on Indian Reservations, 56 FR
64876 (December 12, 1991), codified at 40 CFR part 131; (4) Clean Water
Act, section 404 Tribal Regulations, 58 FR 8171 (February 11, 1993),
codified at 40 CFR parts 232 and 233; and (5) Treatment of Indian
Tribes as States for Purposes of sections 308, 309, 401, 402, and 405
of the Clean Water Act (``NPDES'') rule, 58 FR 67966 (December 22,
1993), codified at 40 CFR parts 122, 123, 124 and 501.
Under all of these regulations, before a tribe can obtain financial
assistance available to states or obtain approval to operate a program
which states are authorized to operate on state lands, the tribe must
first formally qualify for ``treatment as a state.'' To qualify, a
tribe must submit an application establishing that it is federally
recognized, has a governing body carrying out substantial duties and
powers, and has adequate jurisdiction and capability to carry out the
proposed activities. Once a tribe obtains ``TAS'' approval, it is
eligible to apply for financial assistance and program approval.
1. 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.
2. Jurisdiction and Capability
To establish jurisdiction under the CWA grant regulations, a tribe
must submit a statement signed by a tribal legal official explaining
the legal basis for the Tribe's regulatory authority over its water
resources. The CWA grant regulations do not require that a tribe submit
any specific materials to establish capability.
The other regulations specify that a tribe must submit various
specific documents to establish jurisdiction, including: a map or legal
description of the area over which the tribe claims jurisdiction; a
statement by a tribal legal official describing the basis, nature, and
subject matter of the tribe's jurisdiction; copies of all documents
supporting the jurisdictional assertions; and a description of the
locations of the systems or sources the tribe proposes to regulate.
Similarly, to establish capability a tribe must submit a narrative
statement describing tribal capability to administer an effective
program, and certain specific, listed materials in support of that
statement.
3. Comment Process
Upon receiving a ``TAS'' application under these regulations, EPA
notifies all ``appropriate governmental entities,''4 as to the
substance of and basis for the jurisdictional assertions in the
application, and invites comment on those assertions. Where comments
raise a competing or conflicting jurisdictional claim, the Agency must
consult with the Department of the Interior before making a final
decision on the tribe's application.
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\4\The Agency defines this to include contiguous states, other
tribes, and federal land agencies responsible for management of
lands contiguous to the reservation. (Amendments to the Water
Quality Standards Regulation that Pertain to Standards on Indian
Reservations; Final Rule. 56 FR 64875, 64884 (December 12, 1991)).
In response to public comments, EPA has considered, but decided
against, providing interested political subdivisions of states,
including local governments and water districts, the opportunity to
comment on tribal jurisdictional assertions. Id.
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In practice, this comment process has sometimes led to delays in
the processing and approval of tribal applications. Indeed, it has
proven to be the single portion of ``TAS'' review most responsible for
delays. The comment process also has created a perception that states
have an oversight role in EPA's treatment of Indian tribes, which some
tribes find objectionable, particularly since tribes have typically not
been asked to offer their views on the scope and extent of state
jurisdiction.
4. Subsequent Tribal Applications
The regulations require a separate ``treatment as a state''
application for each program for which the tribe seeks such treatment.
However, after an initial approval, applications for each additional
program need provide only that additional information unique to the
additional program.
B. Workgroup Examination of Process
The Agency's ``TAS'' prequalification process has proven to be
burdensome, time-consuming and offensive to tribes. Accordingly, in
1992 EPA established a working group to focus on ways of improving and
simplifying that process. The Agency formally adopted the Workgroup's
recommendations as Agency policy by Memorandum dated November 10, 1992.
That Memorandum explicitly recognized that the policies it adopted
would require amendments to existing regulations. The purpose of this
regulation is to propose amendments to existing regulations under the
Safe Drinking Water and Clean Water Acts in order to implement the new
policy. To the extent possible, the Agency plans to use the same
process in future regulations regarding determinations of tribal
eligibility.
III. Revisions to the Process in Light of Statutory Requirements
No statute compels the use of a formal ``TAS'' or other
prequalification process separate from approval of the underlying
request for a grant or program approval. The only requirements imposed
by statute are that, to be eligible for financial assistance and/or
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 or grant without
formally designating the tribe as ``eligible for TAS,'' so long as the
Agency establishes that the tribe meets 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
a grant or 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 grant or 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. EPA will also, as far as possible, discontinue use of
the term ``treatment as a state;'' however, since this phrase is
included in several statutes, its continued use may sometimes be
necessary.
A. Simplified Determination as to Recognition and Government
As a general rule, the recognition and governmental requirements
are essentially the same under the Clean Water and Safe Drinking Water
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 will establish that it meets
those requirements under both statutes. To facilitate review of tribal
applications, EPA therefore requests that tribal applications inform
EPA whether a tribe has been approved for ``TAS'' (under the old
process) or deemed eligible to receive funding or 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 grant or 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
governmental 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.
B. Case-by-Case Review of Jurisdiction and Capability
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.
1. Simplified Jurisdictional Analysis
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 is therefore proposed to be eliminated for all programs under the
Safe Drinking Water Act, and for the Clean Water Act's 404 and NPDES
programs. This change would 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 would 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 would 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 would/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).
2. 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 would 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 would 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);
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.
IV. Summary of Revised Process
Under the new process, tribes will continue to seek program
approvals under the authority of statutes authorizing EPA to treat
eligible tribes in a manner similar to that in which it treats states.
For instance, tribes seeking approval of an NPDES or Wetlands permits
program will comply with the applicable provisions of 40 CFR parts 123
or 233. However, tribes will now generally be required to submit only a
single application to demonstrate eligibility for the program approval,
without the need for a separate application for ``TAS.'' EPA will
verify that the tribe meets all statutory prerequisites for eligibility
in the process of reviewing the single tribal application.
EPA believes that the changes outlined in this notice will simplify
and streamline the process of assessing tribal eligibility while still
ensuring full compliance with all applicable statutes. The Agency
expects that the new process will reduce the burdens and barriers to
tribes of participating in environmental management.
V. Executive Order 12866
OMB has reviewed this action under the terms of Executive Order
12866.
VI. 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.
VII. 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, Intergovernment relations,
Penalties, Reporting and recordkeeping requirements, Water supply.
40 CFR Part 233
Environmental protection, Administrative practice and procedure,
Intergovernment 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: March 10, 1994.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, 40 CFR parts 123, 124,
131, 142, 144, 145, 233, and 501 are proposed to be 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. 123.2 [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. 124.5 [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 ``is
likewise qualified for treatment as a State'' to read ``is likewise
qualified for such treatment.''
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: Clean Water Act, Pub. L. 92-500, as amended: 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 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 to Part 142 [Amended]
4. The heading for subpart H of part 142 is revised to read as
follows: Subpart H Indian Tribes
Sec. 142.72 [Amended]
5. The heading of Sec. 142.72 is revised to read ``Requirements for
Tribal Eligibility''.
6. Section 142.72 is amended by revising the introductory text to
read as follows:
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:
* * * * *
7. In Sec. 142.72 paragraph (d) is amended by removing all language
following ``(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 beliefs 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
(paragraphs (c) and (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.
* * * * *
An 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 in the first sentence by
adding the word ``eligible'' between ``to'' and ``Indian Tribes,'' and
by removing the second sentence.
Subpart E to Part 145--[Amended]
3. The heading of subpart E of part 145 is revised to read as
follows: Subpart E--Indian Tribes
Sec. 145.52 [Amended]
4. The heading of Sec. 145.52 is revised to read ``Requirements for
Tribal eligibility''.
5. In Sec. 145.52 the introductory text is revised 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:
* * * * *
6. In Sec. 145.52 paragraph (d) is amended by removing all language
following ``(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: Clean Water Act, 33 U.S.C. 1251 et seq.
Subpart G to Part 233 [Amended]
2. The heading of subpart G of part 233 is revised to read as
follows:
Subpart G--Eligible Indian Tribes
Sec. 233.60 [Amended]
3. The heading of 233.60 is revised to read ``Requirements for
eligibility''.
4. Section 233.60 introductory text is amended by removing the
words ``a State for purposes of making the Tribe''.
Sec. 233.61 [Amended]
5. The heading of Sec. 233.61 is revised to read ``Determination of
Tribal eligibility.''
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 ``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: The Clean Water Act, 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. 502.22 [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. 94-6383 Filed 3-22-94; 8:45 am]
BILLING CODE 6560-50-P
