Improving EPA's Indian Program Operations

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5022-1]

Improving EPA's Indian Program Operations

AGENCY: U.S. Environmental protection Agency.

ACTION: Soliciting public comments on the agency's efforts to enhance

Indian program operations.

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SUMMARY: The Environmental Protection Agency (EPA) is soliciting

comments from the public on the following potential approaches for

improving the Agency's Tribal operations, including the establishment

of a new national Indian Program Office. To obtain Tribal input into

this process, as well as input on future Tribal matters, the EPA

Administrator convened the Tribal Operations Committee (TOC) comprised

of Tribal representatives and EPA Senior Managers. EPA is now seeking

broader input on these approaches, and will consider comments received

during the public comment period to ensure that the strongest options

have been identified.

PUBLIC COMMENT PERIOD: Comments must be received by September 12, 1994.

ADDRESSES: Comments should be sent to Caren Rothstein, Tribal

Operations Team, US EPA, Mail Code 1199, 401 M Street SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT:

Caren Rothstein at 202-260-7519.

SUPPLEMENTARY INFORMATION: The Environmental Protection Agency has made

continual progress in building its Tribal program since issuance of the

Agency's 1984 Indian Policy. In Fiscal Year 1993, approximately $35

million and 165 work years were utilized to implement EPA Indian

programs, either through direct grants to Tribes or through Federal

implementation and technical assistance to Tribes.

Regulations and guidance specific to Tribes have been developed

under many of EPA's programs establishing the process for Tribes to

apply for grants and program authorization. Over 90 Treatment in the

Same Manner as a State determinations, formerly referred to as

Treatment as a State, have been made under various water programs.

Numerous Tribes have submitted water quality standards for

authorization by EPA, and three have already been approved. Many more

Tribal applications are expected in the future for a broad array of EPA

programs.

The growth of EPA's Indian program has led to an increased

understanding of the seriousness of environmental threats to human

health and the environments within Indian Country by EPA and the

Tribes. To promote improved communications and partnerships with Tribes

to address these concerns, the EPA Administrator convened a Tribal

Operations Committee (TOC) to meet with her and other EPA Senior

Management as co-regulators, on a regular basis, and to provide Tribal

input into Agency decision making that may affect Tribes.

The TOC is comprised of 18 Tribal representatives, who are either

Tribal Leaders or Tribal environmental officials selected by Tribes

within EPA regions. There are Tribal representatives from each of EPA's

regions except Region III, which has no Federally recognized Tribes.

On February 17, 1994, at the first official TOC meeting, the

Administrator committed to strengthening the Agency's Tribal operations

and reaffirmed the Agency's 1984 Indian Policy. As one of the first

actions for the Tribal representatives to the TOC and in response to

Tribal recommendations, the Administrator authorized a group of Senior

Managers from EPA Headquarters and regions to develop recommendations,

in consultation with Tribal representatives to the TOC, on ways to

strengthen EPA's Tribal environmental programs and daily operations.

Over the last few months, the EPA Senior Team, working with the

TOC, has identified options for advancing and strengthening Tribal

environmental protection and improving relations between EPA and the

Tribes, in the following program areas: organization, implementation

and resource needs.

To ensure constant Tribal input while developing these options,

weekly conference calls were held with the TOC. Two meetings have been

held at which the TOC and Team met face-to-face. In addition, early in

June 1994, a letter was sent to all Tribal Leaders providing

information on the approaches the Agency was considering, and

soliciting additional comment. These comments have been considered and

the Agency hopes to obtain further input through publishing this

Notice.

EPA's Current Indian Program Structure

Under the Agency's current Indian program structure, the central

coordination responsibility has been one of many functions undertaken

by the Office of Federal Activities (OFA) in the Office of Enforcement

and Compliance Assurance. OFA is currently the central point of contact

for Tribes at Headquarters, and also develops the budget for the

General Assistance Grant Program, works with regions to oversee

administration of such grants to Tribes, and fosters overall

coordination between the various offices at Headquarters and the

regions.

Responsibility for administering specific programs such as water,

air and waste are handled by those program and regional offices. This

includes specifically (but not exclusively) provision of technical

assistance, direct Federal implementation and program development and

implementation funds as allowed by law. This will continue to be

necessary because these offices have the technical expertise and the

responsibility for developing and administering program-specific

resources, policies, and regulations.

EPA's regional offices interact with each Tribe on matters specific

to the Tribes and this should continue even though a national office

will be responsible for the coordination of the Agency's Tribal

program. In fact, regions and programs need to increase their efforts

to assist Tribes in addressing environmental issues as part of the

effort to enhance Tribal operations.

Proposed National EPA Indian Operations

Altering the current structure by creating a national office, whose

sole responsibility is Tribal operations, would provide a more

consistent and streamlined approach for implementing EPA's Indian

Policy. This new Office could also ensure that Tribal input and

concerns are heard and integrated into the Agency's ongoing activities.

The EPA Team identified, in consultation with Tribal

representatives to the TOC, key factors, functions and organizational

options to consider in establishing the new office. The Agency is

seeking suggestions on functions for the Office as well as its

appropriate title. Among others, titles such as ``National Office of

Indian Affairs'' or ``National Tribal Environmental Management Office''

have been suggested to date.

Functions for the New Office

Tribal representatives to the TOC have suggested that it is

critical for the new Office to have flexibility to develop its specific

Action Agenda after it is officially established. Therefore, some of

the key functions envisioned for the new Office are identified here in

general terms. The Agency expects that the new Office will further

refine and develop these functions while establishing a more detailed

Action Agenda.

Following is a list of key functions the Agency believes to be

critical for the new Office.

Function 1.--Implementation of Policies

The Agency believes that a main function of the Office should be to

ensure that the 1994 Presidential Memorandum addressing Tribal program

implementation and the Agency's recently reaffirmed 1984 Indian Policy

are fully implemented. These documents both recognize Tribal

sovereignty and call for a government-to-government relationship with

Tribes.

The Office should also ensure that other Agency policies affecting

Tribes are being implemented responsibly, and that Tribal operations

continue to be a priority Agency wide. The new Office should review and

update existing Agency guidance that relates to Tribes, in order to

facilitate the full implementation of these policies.

Function 2.--Develop Environmental Workplans

In order for EPA and Tribes to plan for and respond effectively to

Tribal environmental problems requiring action, the Agency and the

Tribes need to establish a baseline description and evaluation of the

types of environmental problems, the seriousness of such problems and

Tribal priorities for action. To accomplish this, the Agency is

recommending the formulation of individual Tribal workplans or

strategies for responding to environmental problems. To facilitate and

support these workplans, each EPA Regional Administrator would retain

flexibility to determine, in consultation with the Tribes, the most

appropriate manner to develop these workplans. Workplans should include

the Tribe's plans to manage authorized environmental programs and/or

their need for Federal technical assistance and funding, direct Federal

implementation and management of specific programs.

These Tribal workplans would be the basis for region specific

workplans upon, which in turn, a national EPA Tribal operations

workplan would be based.

A Tribal representative to the TOC asked that funding for needs

assessments be made available to Tribes in order to build a foundation

of information upon which to base Tribal workplans. The commentor

further suggested that EPA and the Tribes jointly develop a model to

provide initial guidance for workplan development. The Agency is

considering how this might be done.

Commentors have also suggested that the Agency must set realistic

schedules for completing these workplans. The Agency specifically

solicits comments on how long it would take for such Tribal workplans

to be completed and ideas on effective approaches for assessing Tribal

needs. Finally, the Agency believes it is important to be cognizant of

the fact that workplan development is likely to identify needs that

cannot be met immediately with available funding and that a Tribal/EPA

strategic approach to meeting needs over time will be required.

Comments on how these decisions can be developed and managed are

specifically solicited.

Function 3.--Ensuring Consistency

The Office should coordinate the Agency's Indian operations to

ensure an appropriate level of consistency throughout the programs and

regions in the areas of policy, guidance, program implementation and

regulatory and legislative initiatives. To assist Tribes and EPA

managers, the Office should develop a compendium of Agency policies and

statements concerning Indian matters. Further, the Office may develop

regulations and legislative initiatives of a multi-media nature

relating to Tribes.

The Office should work with the Office of General Counsel, other

appropriate Agency parties and Federally recognized Tribes to review

Federal environmental laws, regulations, policies and guidance to

strengthen, coordinate and ensure consistency with EPA's Indian Policy,

and the Federal trust responsibility to Tribes. This review should

foster improvements to Agency Tribal operations leading to effective

program delivery while maintaining sufficient flexibility to meet

Tribal needs.

Function 4.--Budget and Resource Development

A function of the Office should be coordination and development of

budget proposals to meet the Agency's and Tribal environmental program

resource needs. The Office should also work to ensure appropriate

management and staff to support Tribal operations. Resource proposals

should be sufficient to ensure the success of Tribal environmental

programs and to carry out EPA program responsibilities in a manner

consistent with Federal law.

Function 5.--General Assistance Grant Oversight, Grant Flexibility and

Streamlining

The new Office should oversee the General Assistance Grant Program

to assist Tribes in building capacity to manage environmental programs,

and should, to the extent allowed under law, use the flexibility in

this program as broadly as possible to meet Tribal needs. The new

Office may develop recommendations for statutory changes in granting

authorities to permit Tribal block grants and to explicitly authorize

the use of the General Assistance Grants, where practicable, for a full

range of implementation activities. However, growth in the General

Assistance Grant Program should not lead to any diminishing of

available funds from specific program grants such as Section 106 Water

Quality Management grants under the Clean Water Act.

Finally, given that most Tribes have a small environmental staff,

if any, to manage various program-specific grants, it is important to

increase the efficient use of limited resources. The Office should work

with other EPA Senior Management to use available discretion to

consolidate (to the extent allowed by law), issuance and administration

of grants to reduce the burden on Tribes.

Function 6.--Promote Agency Wide Participation in Tribal Operations

The Office should promote Agency-wide participation in the

development and implementation of Tribal environmental programs. The

new Office should chair the National Indian Workgroup which is made up

of EPA Headquarters Program Coordinators and Regional Indian Program

Coordinators. The new Office should also coordinate with EPA National

Indian Attorneys Workgroup to ensure consistency in legal matters.

Function 7.--Reporting Systems and Feedback Mechanisms

Another key function of the Office would be to expand, establish,

where necessary, and oversee internal Agency reporting requirements.

Feedback should be provided to EPA management and staff through

tracking and reporting systems that monitor progress, yet are not

overly demanding on limited Tribal government staff and resources.

Principles of partnership should be considered while coordinating joint

management of oversight activities.

To facilitate the collection of baseline data, and other periodic

data concerning Tribal capacity development, program authorization and

EPA direct implementation and management activities, the new Office

should work with Assistant and Regional Administrators to develop a

regular reporting system and schedules for a variety of Indian Program

activities and milestones.

A Tribal representative has suggested that criteria through which

Tribal environmental programs can be judged to be sufficient need to be

developed as a benchmark for both Tribes and EPA to measure and

evaluate their progress in a consistent manner. Further, the commentor

calls for the new Office to conduct periodic workshops and evaluations

in the regions with Tribes to provide feedback and to be accessible to

the Tribes in the field.

Reviewers are specifically asked to comment upon appropriate forms

of reporting and methods of evaluation likely to be most effective. The

Agency is considering these suggestions.

Function 8.--Clearinghouse For Environmental Information and Data

Generation

The Office would serve as a cross-media clearinghouse for

environmental information related to the Indian program and would

coordinate Agency-wide data collection for the Indian program.

Assistant and Regional Administrators would be asked to have systems in

place to identify and update Tribal data for their programs and, as

part of the ``comprehensive'' Tribal environmental picture. This data

should be accessible to the new Office for analysis and evaluation.

To fulfill this function and improve EPA's ability to respond

quickly and effectively to Tribal environmental problems, the Agency is

considering calling for the new Office to establish a Tribal

environmental database, in cooperation with program and regional

offices and Tribes. The Office should make use of existing data base

systems, information and documents already compiled by EPA and other

relevant agencies and build upon these as appropriate.

Function 9.--Tribal Environmental Training

The Office would coordinate Agency-wide development of training,

education and technical assistance, in all relevant environmental

areas, for Tribes. In doing so, attempts should be made to make ongoing

training that other co-regulators receive, available and appropriate

for Tribes.

Several commentors have stated that, in particular, technical

assistance is critical to successful Tribal environmental capacity

building and program development. The Agency is exploring options for

providing more technical assistance to Tribal environmental managers.

Resources may limit certain options, but improvements can be made. The

Agency is specifically looking for suggestions on how best to provide

this service to Tribes.

Function 10.--Training of EPA Staff

It is important that EPA employees have the necessary sensitivity,

knowledge and understanding of Indian affairs to facilitate

communication between EPA and Tribal representatives. The Office would

promote and coordinate training on Indian issues for Agency managers

and staff, particularly those working on Tribal and related programs.

In the interim, EPA managers will be encouraged to provide training

that moves the Agency in the direction of a better understanding of

Indian issues.

This training should address responsibilities under Federal Indian

law and the EPA Indian Policy, EPA's Indian program activities, Tribal

sovereignty and jurisdiction, Tribal environmental needs and

activities, the role of Tribal individuals and organizations and

cultural and historical differences that may affect EPA's working

relationship with the Tribes.

Function 11.--Communication With Tribes

Promoting and facilitating improved communication between EPA and

Tribal governments (pursuant to the 1984 Indian Policy), and Tribal

members and/or organizations, would be a major function of the new

Office in cooperation with the program and regional offices.

In keeping with the spirit of environmental justice and Executive

Order 12875, EPA management should include Tribes in decision-making

and program management activities that affect them. Communications and

requests for Tribal input should occur early in any Agency process that

may affect Tribes, and full consideration should be given to the

policies, priorities, and concerns of the affected Tribe(s) and/or,

where appropriate, affected Tribal members.

Specifically, but not exclusively, EPA will notify and communicate

with Tribes on an ongoing basis for such activities as rulemaking,

policy development and direct implementation and management of EPA

programs in Indian country. Commentors have suggested that it is

critical for communication to occur between elected Tribal leaders,

Tribal members and Tribal organizations, and the EPA Administrator and

Regional Administrators in decisions that affect Tribes.

In addition, the Office should serve as the central point of

contact to interact with the Agency and Tribes on matters of national

concern and should coordinate the activities and participation of the

TOC in the future. The Agency invites comments on how to further

improve communications with Tribes.

Function 12.--Interagency Coordination Efforts

The Office would work to improve communication, cooperation and

funding utilization between EPA and other Federal agencies regarding

Indian matters. The new Office should review the content and status of

existing Memoranda of Understanding on Indian Affairs between EPA and

other Federal agencies for effectiveness and implementation.

The new Office should also take appropriate steps to improve

interagency coordination, especially with regard to specific

environmental issues, opportunities for cooperative use of public funds

and disputes that may arise from time to time. As a part of this

effort, the new Office may find it useful to undertake an evaluation of

all Federal resources available to Tribes and their relationship to

Tribal environmental management in coordination with the other Federal

agencies.

To the extent possible, EPA's Headquarters and regional program

offices should be encouraged to participate in interagency work groups

to facilitate the resolution of environmental matters of mutual concern

and foster integrated use of funds.

Conclusion

The Agency invites comments the issues addressed in this Notice, as

well as additional suggestions for strengthening EPA's Tribal

operations. The Agency will publish its final determinations based on

review of public comment received in response to this Notice.

Dated: July 15, 1994.

Carol M. Browner,

EPA Administrator.

[FR Doc. 94-18335 Filed 7-27-94; 8:45 am]

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