Indian Tribes: Eligibility of Indian Tribes for Program Authorization; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY

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