Indian Tribes; Eligibility for Program Authorization

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