Environmental Program Grants for Indian Tribes
Federal RegisterJul 23, 1999
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SUMMARY: This rule proposes to revise and update requirements in
several Environmental Protection Agency (EPA) regulations, particularly
subpart A of 40 CFR part 35, governing grants to Indian Tribes and
Intertribal Consortia. It creates a new Tribal-specific subpart which
contains only the provisions for environmental program grants that
apply to Tribes; simplifies, clarifies, and streamlines current
provisions for environmental program grants to Tribes, and addresses
the Performance Partnership Grant (PPG) program for Tribes. The PPG
program fosters EPA's continuing efforts to improve partnerships with
its Tribal recipients by increasing flexibility in using environmental
program funding. The regulation reflects efforts by EPA and its Tribal
partners to increase administrative and programmatic flexibility for
Tribes while moving toward improved environmental protection.
DATES: Please submit comments on this proposed rule by September 7,
1999.
ADDRESSES: Written comments should be submitted to: Performance
Partnership Grants--Tribal Comment Clerk (Docket #WD-98-16); Water
Docket (MC-4104); U.S. Environmental Protection Agency; 401 M Street,
SW; Washington, DC 20460. Comments may be hand-delivered to the Water
Docket; U.S. Environmental Protection Agency; 401 M Street, SW; East
Tower Basement; Washington, DC 20460. Comments may be submitted
electronically to [email protected].
FOR FURTHER INFORMATION CONTACT: Maureen J. Ross, Grants Policy,
Information, and Training Branch (3903R), United States Environmental
Protection Agency, 401 M. Street, SW, Washington, DC 20460 (202) 564-
5356.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities regulated by this action are eligible to receive the
environmental grants listed in 40 CFR 35.501. Regulated categories and
entities include:
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Category Regulated entities
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Government................................ Federally recognized Indian
Tribal Governments.
Other Entities............................ Intertribal Consortia.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that could potentially
be regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your organization
is regulated by this action, you should carefully examine the
definitions of Tribe and Intertribal Consortium in Sec. 35.502 and in
the specific program rules found following Sec. 35.540 of the proposed
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Comments and Record
Please submit an original and three copies of your comments and
enclosures (including references). The Agency requests that commenters
follow the following format: Type or print comments in ink, and cite,
where possible, the paragraphs in this notice to which each comment
refers. Electronic comments must be submitted as a WP5.1 or WP6.1 file
or as an ASCII file avoiding the use of special characters. Comments
and data will also be accepted on disks in the formats above.
Electronic comments may be filed online at many Federal Depository
Libraries. Commenters who want EPA to acknowledge receipt of their
comments should include a self-addressed, stamped envelope. No
facsimiles (faxes) will be accepted.
The record for this Notice, which includes supporting documentation
as well as printed, paper versions of electronic comments, is available
for inspection from 9 to 4 p.m. (Eastern Time), Monday through Friday,
excluding legal holidays, at the Water Docket, U.S. EPA Headquarters,
401 M Street, SW; East Tower Basement; Washington, DC 20460. For access
to docket materials, please call 202-260-3027 to schedule an
appointment.
III. Background
The United States Government has a unique legal relationship with
Tribal governments as set forth in the United States Constitution,
treaties, statutes, executive orders, and court decisions. EPA
recognized this uniqueness of Tribal governments by issuing and
reaffirming its 1984 policy on the ``Administration of Environmental
Programs on Indian Reservations.'' Specifically, EPA recognizes the
existence of the trust responsibility in Principle Number 5 of its
Indian Policy, which states that the Agency will assure that Tribal
concerns and interests will be considered when Agency actions may
affect Tribal environments. Additionally, in 1994, the President of the
United States issued a presidential memorandum for the heads of
Executive Departments and Agencies reaffirming the government-to-
government relationships with Native American Tribal Governments. Most
recently, on May 14, 1998, the President issued Executive Order 13084,
``Consultation and Coordination With Tribal Governments.'' The
Executive Order addresses regular and meaningful consultation and
collaboration with Indian Tribal governments in developing regulatory
policies on federal matters affecting their communities, reducing the
imposition of unfunded mandates on Indian Tribal governments, and
streamlining the application process and increasing the availability of
statutory or regulatory waivers for Indian Tribal governments.
Consistent with these principles, this regulation provides an easy-to-
use Tribal-specific subpart to optimize the administration of Tribal
assistance programs through increased flexibility and to remove
procedural impediments to effective environmental programs for Indian
Tribes.
In various program specific regulations in this subpart we have
used terms such as ``treatment as a State'' or ``treatment in a manner
similar to a State.'' We have used those terms because they are in the
statutes authorizing awards to Tribes. 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.
Generally, the administration of financial assistance to Tribes is
the same as the administration of financial assistance to States.
However, there are provisions in some assistance programs unique to
Indian Tribes. For example, Indian Tribes currently compete with each
other for limited financial resources in many of the Tribal
environmental grant programs listed
[[Page 40085]]
under Sec. 35.501(a) of the proposed rule. Thus, the stability of
annual grant funding for State, interstate, and local environmental
programs grants (see 40 CFR part 35, subpart A) is not shared by
Tribes. Indian Tribes do not currently receive and cannot rely on
continuity of funding from year to year. This uncertainty in financial
assistance makes long-term environmental planning difficult. Therefore,
the administration of these programs by EPA requires a different
approach compared to the approach used when administering an
environmental program for State, interstate, or local government
agencies.
EPA and many Indian Tribal governments have forged partnerships on
a government-to-government basis . An important mechanism to further
support these relationships was established when EPA requested and
received authorization for a Performance Partnership Grants (PPG)
program for Indian Tribes and Intertribal Consortia. (Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Public Law
104-134, 110 Stat. 1321, 1321-299 (1996); Departments of Veterans
Affairs and Housing and Urban Development, and Independent Agencies
Appropriations Act, 1998, Public Law 105-65, 111 Stat. 1344, 1373
(1997)). PPGs allow eligible Tribes and Intertribal Consortia to
combine environmental program grants into a single grant in order to
improve environmental performance, increase programmatic flexibility,
achieve administrative savings, and strengthen the partnerships between
States, Indian Tribes, and EPA. Environmental program grants that may
be included in PPGs are listed in 40 CFR 35.501(a) and funded under
EPA's State and Tribal Assistance Grant (STAG) appropriation.
This regulation will be codified in 40 CFR part 35, subpart B, as
``Environmental Program Grants for Indian Tribes.'' Subpart B
incorporates administrative provisions for grants formerly included in
40 CFR part 35, subparts A and Q. This regulation supplements EPA's
regulation, ``Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments,'' contained in
40 CFR part 31, which will apply to grants awarded under this
regulation (including grants to Intertribal Consortia as defined in
Sec. 35.502, regardless of whether the Consortia are organized as
nonprofit corporations).
We have used the terms ``Tribe'' and ``Intertribal Consortium'' to
refer to the entities eligible to receive grants throughout this
subpart. Those terms are defined in Sec. 35.502 for environmental
programs that do not include their own program-specific definitions.
When the definition of either term is different in a specific program
provision in Secs. 35.540 through 35.718 of the rule, the specific
definition will determine the entities eligible for a grant under such
programs.
IV. Requirements for All Environmental Program Grants
Sections 35.500 through 35.518 apply to all environmental program
grants covered by 40 CFR part 35, subpart B, including PPGs. This rule
contains changes to foster Tribal-EPA partnerships, improve
accountability for environmental and program performance, and
streamline administrative requirements. Some of the rule's key features
are discussed below.
Tribal-EPA Partnerships
To foster joint planning and priority setting, the rule explicitly
requires consideration of Tribal priorities along with national and
regional guidance in negotiating all grant work plans. All Tribes are
provided flexibility through the work plan negotiation process, and, in
particular, through their ability to organize work plan components in
whatever way fits the Tribe best. Tribes applying for PPGs will have
still greater flexibility as described in the PPG discussion below. The
EPA Regional Administrator must consult with the National Program
Manager before agreeing to a Tribal work plan that deviates
significantly from national program guidance. Where appropriate, the
grant work plan will reflect both EPA and Tribal roles and
responsibilities in carrying out work plan commitments and there will
be a negotiated process for jointly evaluating performance.
Core Performance Measures
Core performance measures for Tribal programs are still evolving
and may be different from those negotiated by EPA National Program
Managers with the States. When EPA has negotiated these measures with
the Tribes, they will be included in national program guidance and
incorporated, as appropriate, into Tribal/EPA Environmental Agreements
and grant work plans as the basis for reporting requirements. Until the
Tribal core performance measures are further developed, the regions
should use significant work plan goals, objectives or commitments for
measuring performance, as appropriate.
Accountability
The proposed rule accommodates results-oriented approaches to
planning and managing environmental programs. Definitions and other
aspects of the rule dovetail with the new Government Performance and
Results Act (GPRA) and reflect efforts to establish goals and
objectives as well as environmental and program performance measures at
both the national and Tribal levels. The rule recognizes the need for a
mix of outcome (results) and output (activity) measures for management
purposes. The rule encourages Tribes and Intertribal Consortia to
organize their work plans around goals and objectives to reflect the
new GPRA requirements.
Administrative Changes
Under the proposed rule, Tribes can negotiate budget periods of
more than one year with EPA thereby improving stability in the
programs. EPA recommends, however, that budget periods not exceed five
years because it is difficult to account for funds and maintain records
for longer periods. (The budget period of a General Assistance Program
(GAP) grant cannot exceed four years.)
The rule streamlines some requirements and eliminates other
requirements associated with post-award changes to grant work plan
commitments and budgets. It replaces the requirements regarding changes
found in 40 CFR 31.30. Prior written approval from EPA is still
required for significant changes in a recipient's work plan
commitments. Written, but not prior, approval is required for work that
will result in a need for increases in grant amounts and extensions of
the budget period. However, recipients beginning such work without
prior, written approval do so at their own risk. EPA approval is no
longer required for other changes in the work plan, budget, key
persons, or to carry out portions of the work through subgrants or
contracts unless the Regional Administrator determines, on a case-by-
case basis, that circumstances warrant imposing additional approval
requirements on a particular recipient.
Pre-Award Costs
Pre-award costs may be reimbursed under the grants without prior
approval so long as they are incurred within the budget period,
identified in the approved grant application, and would have been
allowable if incurred after the award.
Intertribal Consortia
Under this rule, EPA will treat a group of Tribes that applies for
a grant
[[Page 40086]]
(called an Intertribal Consortium in the rule) in the same manner as a
single Tribe. Thus, in the absence of clear Congressional intent to the
contrary, if a Tribe is eligible for a particular grant, EPA will also
treat a group of individually eligible Tribes as eligible for the
grant. EPA believes this approach is a practical, reasonable and
prudent way to help interested Tribes strengthen environmental
protection when limited funding is available to support Tribal
environmental programs. Tribes that form Consortia may be able to use
their limited resources more efficiently and address environmental
issues more effectively than they could if each Tribe separately
developed and maintained separate environmental programs Accordingly,
Intertribal Consortia as defined in Sec. 35.502, will be eligible to
receive grants under the programs listed in 40 CFR 35.501.
For all grants except General Assistance Program (GAP) grants, all
members of an Intertribal Consortium must be eligible to receive the
grant and must authorize the Consortium to apply for and receive the
grant. This means, for example, that for a Consortium to be eligible
for a Clean Water Act section 106 grant, each member of the Consortium
must establish that it is a federally recognized Tribe and that it has
met the requirement for treatment in a manner similar to a State,
because that is required for individual Tribes seeking section 106
grants. If a grant authority does not require Tribes to establish
eligibility for treatment in a manner similar to a State to receive a
grant, then the authorizing members of a Consortium need not satisfy
that prerequisite.
For GAP grants, an Intertribal Consortium will be eligible if (1) a
majority of the Consortium's members meet the eligibility requirements
for the grant; (2) all members that meet the eligibility requirements
authorize the Consortium to apply for and receive the grant; and (3)
only the members that meet the eligibility requirements will benefit
directly from the grant project and the Consortium agrees to a grant
condition to that effect. This means that a Consortium may receive a
GAP grant even if the Consortium includes Tribal governments that are
not recognized as eligible for the special services provided by the
United States to Indians because of their status as Indians so long as
the Consortium meets the three requirements specified above. EPA
decided to impose somewhat less restrictive requirements on Intertribal
Consortia seeking GAP grants because the Indian Environmental General
Assistance Program Act of 1992, 42 U.S.C. 4368b (IEGAPA), explicitly
authorizes GAP grants to an ``intertribal consortium,'' which it
defines as ``a partnership of two or more Indian Tribal governments
authorized by the governing bodies of those Tribes to apply for and
receive assistance pursuant to this section.'' This definition may
reasonably be interpreted to include a Consortium comprised of a
majority of federally recognized Tribes and a few non-recognized Tribal
governments. Such a Consortium would be a partnership of federally
recognized Tribes, although it would not be a partnership of only
federally recognized Tribes. In effect, the recipient of the GAP grant
to such an Intertribal Consortium would be a subset of the original
Consortium consisting only of those individually eligible Tribes. The
Agency is adopting this approach to meet those very rare circumstances
where awarding a GAP grant to such a Consortium would be consistent
with the intent of the IEGAPA.
EPA believes its proposed approach for making environmental program
grants available to Intertribal Consortia is consistent with President
Clinton's Executive Order 13084, which encourages agencies to adopt
``flexible policy approaches'' and to respect the principle of Indian
self-government and sovereignty.
Preferences for Indians, Indian Organizations, and Indian-Owned
Economic Enterprises
Section 450e(b) of the Indian Self Determination Act (25 U.S.C. 450
et seq.) provides:
Any contract, subcontract, grant, or subgrant pursuant to this
Act, the Act of April 16, 1934 (48 Stat. 596), as amended [25 USCS
452 et seq.], or any other Act authorizing Federal contracts with or
grants to Indian organizations or for the benefit of Indians shall
require to the extent feasible'
(1) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants shall
be given to Indians; and
(2) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall
be given to Indian organizations and to Indian-owned economic
enterprises as defined in section 3 of the Indian Financing Act of
1974 (88 Stat. 77) [25 USCS Sec. 1452].
EPA has determined that these preference requirements of the Indian
Self-Determination Act apply to the award of grants, contracts,
subcontracts and subgrants under the grant programs covered by this
subpart. EPA seeks comments on implementing this provision. In
particular, EPA seeks comments on adapting the requirements at 40 CFR
31.36(c) (governing competition in procuring property and services
under a grant) to reflect the preference requirements of the Indian
Self-Determination Act.
V. Performance Partnership Grants
Sections 35.530 through 35.538 contain the requirements that apply
only to Performance Partnership Grants (PPGs) to Tribes or Intertribal
Consortia. In a PPG, the recipient can combine funds from two or more
environmental program grants into a single grant under streamlined
administrative requirements. Before a Tribe or Intertribal Consortium
can include funds from an EPA environmental program in a PPG, the Tribe
or Intertribal Consortium must meet the requirements for that program
with a few specified exceptions. For example, if a program requires
treatment in a manner similar to a State, the Tribe or Tribal members
of a Consortium must satisfy that requirement in order to include that
program's funds in a PPG. The exceptions are requirements that restrict
how a specific environmental program grant can be used after award.
These requirements are not appropriate to be carried over to PPGs
because after funds are awarded in a PPG, they may be used for cross-
media activities or strategies and do not need to be accounted for in
accordance with their original program sources. However, the source of
the funds is considered by the Regional Administrator in negotiating a
work plan with the applicant. See Secs. 35.507(a) and 35.535. Key
features of the PPG rule are discussed below.
Funds and Activities Eligible for Inclusion in a PPG
Funds for any environmental program grant listed in Sec. 35.501 may
be included in a PPG if the funds for that grant were appropriated in
the same specific appropriation as the funds for PPGs. EPA will
announce any changes in its appropriation acts that affect the list of
programs in Sec. 35.501.
Unlike the rule governing PPGs to States, Sec. 35.535 of this rule
allows Tribes and Intertribal Consortia to use PPG funds for any
environmental activity that is eligible under the environmental
programs listed in Sec. 35.501 (except EPA-delegated or EPA-authorized
activities, which still require delegation or authorization),
regardless of whether a Tribe applied for or was selected for funding
for that particular activity, provided that the Regional Administrator
consults with the appropriate National Program Managers. The National
Program Manager may expressly waive or modify the
[[Page 40087]]
consultation requirement in national program guidance. For example, if
EPA found that a Tribe was not eligible for a Clean Air Act section 105
grant, but the Tribe wanted to perform air program monitoring or
inspections, the Tribe could pay for those activities with PPG funds,
provided that: (1) the Regional Administrator consulted with the
National Program Managers for the sources of the PPG funds (unless
waived in national program guidance) and (2) the activity was included
in the approved PPG work plan. The Tribe would perform these air
activities using Tribal authority. To implement an EPA-delegated or
authorized program under a PPG, a Tribe would need the delegation(s) or
authorization(s) as required under Sec. 35.535(a). Given the wide
variety of environmental activities eligible under the General
Assistance Program (GAP) (see Secs. 35.540--35.548), this will allow
Tribes, as determined by the Regional Administrator, to use funds from
other programs that are put into a PPG for the same wide variety of
activities. Furthermore, this will allow Tribes to use GAP funds, if
they are included in a PPG, to implement as well as develop
environmental programs.
Within the framework of EPA oversight established by Secs. 35.507,
35.514(a), 35.535 and national program guidance, EPA is proposing that
Tribes have considerable flexibility to use PPG funds for a broad
variety of activities. EPA is proposing this approach because Tribes
need to address a broad range of environmental issues, but do not have
the same access to diverse funding sources as States and, generally,
Tribes must compete annually for their funds while States do not. EPA
believes this approach will help achieve a key purpose of the PPG
program: to provide Tribes and Intertribal Consortia with the
flexibility to direct resources where they are most needed to address
environmental and public health priorities. EPA will retain sufficient
programmatic control because Sec. 35.535(b) requires the Regional
Administrator to consult with the appropriate National Program Managers
before agreeing to a work plan that would differ significantly from any
of the proposed work plans submitted with the Tribe's or the
Consortium's applications for funds. For example, if a Tribe or
Intertribal Consortium was selected for funding in a competition based
on its proposed work plan for that grant and the Tribe or Consortium
proposed a PPG work plan that would significantly modify those proposed
work plan activities, then the Regional Administrator would have to
consult with the National Program Manager associated with the funding
source (unless waived in national program guidance). Accordingly, the
Regional Administrator will be responsible for ensuring that the Tribes
and Intertribal Consortia meet the basic requirements of programs which
provide funds for the PPG before the Tribes use funds for other
important activities.
EPA intends to evaluate the flexibility provided under the rule
regarding the activities eligible for funding under a PPG. After the
third year of implementing the program, but before the end of the fifth
year, the Agency will evaluate the environmental benefits of this
flexibility as compared to the costs, which may include reduced
accountability for funds and outcomes. Based on that evaluation, the
Agency will determine whether to continue to allow Tribes to use PPG
funds to perform activities under programs for which they are not
eligible to receive a grant. If the Agency determines that a change in
the regulation is appropriate, it will undertake a rulemaking to make
such a change.
Administrative Flexibility
A primary advantage of PPGs is the administrative flexibility
provided to all PPG recipients. A PPG requires only a single
application, work plan, and budget. Once funds are awarded in a PPG,
the Tribe or Intertribal Consortium can direct the funds as needed to
achieve work plan commitments and does not need to account for funds in
accordance with their original program sources. These administrative
features also make it possible for Tribes to negotiate a work plan that
includes cross-media or innovative strategies for addressing
environmental problems.
Cost Share
The PPG cost share is the sum of the cost shares required for all
individual program grants included in the PPG in accordance with 40 CFR
35.536(b) and (c) for each individual program grant included in the
PPG. EPA will not require Tribes and Intertribal Consortia to provide a
PPG cost share for funds from programs which do not require cost
shares, such as GAP. (Cost sharing requirements for individual programs
are found under Secs. 35.540 through 35.718.) For funds from programs
with a cost share requirement of five percent or less under the
provisions of Secs. 35.540 through 35.718, the PPG cost share will be
the same as the cost share for the individual programs, as identified
in Secs. 35.540 through 35.718. For funds from programs with a required
cost share greater than five percent, EPA is proposing a PPG cost share
similar to that required under the Tribal Air Pollution Control program
provision found at Sec. 35.575. For funds from such programs, EPA will
require Tribes to provide a cost share of five percent; however, after
the first two years, the Regional Administrator will determine through
an objective assessment whether the Tribe or the members of an
Intertribal Consortium meet socio-economic indicators that demonstrate
the ability of the Tribe or the Intertribal Consortium to provide a
cost share greater than five percent. If the Regional Administrator
determines that the Tribe or members of the Intertribal Consortium meet
such indicators, then the Regional Administrator shall increase the
required cost share up to a maximum of 10 percent. If the Regional
Administrator determines that the Tribe or the members of the
Intertribal Consortium do not meet such indicators, then the cost share
will remain at five percent. (The required cost share for the Tribal
Water Pollution Control Grant Program (Clean Water Act, section 106) is
five percent. Thus, this program is not included in the grant programs
whose cost share could be raised to 10 percent through the Regional
Administrator assessment and determination process.)
Further, the Regional Administrator may waive the required PPG cost
share at the request of the Tribe or Intertribal Consortium if the
Regional Administrator determines, based on an objective assessment of
socio-economic indicators that fulfilling the cost share requirement
would impose undue hardship on the Tribe or members of the Intertribal
Consortium.
EPA invites suggestions for the socio-economic indicators for
approval of the lower cost share and waiver of cost share, as well as
suggestions for how the cost share for Intertribal Consortia should be
calculated.
VI. Indian Environmental General Assistance Program (GAP) and
Performance Partnership Grants
An important and unique environmental program available only to
Tribes and Intertribal Consortia is the Indian Environmental General
Assistance Program (GAP) (40 CFR 35.540 et seq.) This program was
created to assist Indian Tribes in developing the capacity to manage
their own environmental programs. GAP offers the opportunity for Tribes
to develop integrated environmental programs, to develop capacity to
manage specific programs that can be delegated by EPA, and to plan and
establish a core program for environmental protection. It also
[[Page 40088]]
provides the opportunity for Tribes to define and develop
administrative and legal infrastructures, to conduct assessments,
monitoring, and planning, and to undertake additional activities to
develop environmental programs within a simplified administrative
framework.
GAP funds can be used more flexibly than categorical environmental
program funds. EPA recognizes the Tribes' need for flexibility in using
limited resources available for protecting Tribal environments, but
believes that this need for flexibility must be balanced with the
Agency's goals of establishing a strong Tribal environmental presence
throughout Indian country and of diversifying financial resources
available to Tribes for the administration of comprehensive
environmental programs. GAP funds are primarily available for and
critical to the development of sustainable, integrated Tribal
environmental programs. The long-term goal of developing and
maintaining an adequate level of funding for Tribal environmental
programs will be best served not by increasing the number of activities
that are funded by GAP, but rather by expanding and diversifying the
use of various categorical environmental programs funds, in addition to
the use of GAP funds.
When Congress authorized the PPG program, it allowed GAP funds to
be included in such a grant. However, to balance competing interests in
the use of GAP funds, EPA encourages Tribes and Intertribal Consortia
to continue to use GAP funds, at least in the first instance, for the
development of Tribal capacity to manage environmental programs and not
to use these funds for environmental media activities. EPA believes
that the overriding value of the General Assistance Program lies in its
ability to assist Tribes in the development of their environmental
capacity. This original and primary purpose of GAP has not been fully
realized since some Tribes have not yet developed an environmental
program capacity. Including a GAP grant in a PPG should not result in a
reduction of EPA media-specific environmental program assistance
available to Indian Tribes and Tribal Consortia.
VII. Implementing GPRA
EPA has developed an approach toward the integrated implementation
of GPRA, the Chief Financial Officers Act (CFOA), and the Federal
Financial Management Improvement Act of 1996 (FFMIA). These laws
provide EPA with a framework to demonstrate to Congress and the
taxpayers the costs to the federal government of EPA's program
accomplishments or outcomes. Tribes and Intertribal Consortia, by
virtue of delegated program authorities and as recipients of EPA grant
funds, play an integral part in achieving those goals and objectives.
Thus EPA's reports of Agency resources associated with results-based
outcomes will incorporate--at some level--expenditures incurred in the
form of payments to the Tribes under grants and cooperative agreements.
In order to comply with the Paperwork Reduction Act and the federal
government's general grant regulations, EPA also has a responsibility
to minimize additional administrative reporting requirements and costs
borne by the Tribes. In addition, under current regulations EPA
generally may not impose accounting requirements on Tribes beyond those
currently required by 40 CFR part 31.
EPA will therefore use the budget information that Tribes and
Intertribal Consortia provide in grant applications as a basis for
linking the Agency's actual expenditures with EPA's results-based
accomplishments or outcomes. EPA will be able to sufficiently rely on
Tribal budget information to determine the costs of EPA's results-based
outcomes based on the following three requirements of the proposed
regulation:
(1) Tribes and Intertribal Consortia provide the program budget
information required as part of the application;
(2) EPA and the recipients explicitly define work plan goals,
objectives, outcomes, and outputs, as well as the program flexibility
contained in the work plan; and
(3) Recipients report back on work plan accomplishments.
The proposed rule ensures that Tribes and Intertribal Consortia
will meet these three conditions. EPA will thus have a reasonable basis
for associating the costs of its grants with the Agency's results-based
outcomes.
EPA's Regional offices, with necessary consultation with
recipients, will be responsible for cross-walking the State budget
information (grant application and work plan data) into the GPRA goals
and objectives architecture. If a grant is subsequently amended to
reflect significant adjustments to work plan commitments, the region
will consult with the State to develop an estimate of the budget
associated with the revision so that it can be reflected in regional
GPRA reporting. The Office of the Chief Financial Officer will provide
regions with guidance on the approach to use for the cross-walk process
to ensure that the results achieved by States with EPA funds are
captured in the Agency's Annual Performance Reports.
VIII. Program Specific Provisions
Requirements applicable to each environmental grant program, such
as the requirements regarding eligibility and cost share, are located
in 40 CFR 35.540 through 35.718.
Programs Not Specifically Available to Tribes
Sections 28 and 306 of the Toxic Substances Control Act (TSCA) and
section 6605 of the Pollution Prevention Act (PPA) provide explicit
authority for grants to States, but are silent regarding grants to
Tribes. This rule reflects EPA's determination that those statutes may
also be interpreted to authorize grants to Tribes for radon abatement
(TSCA section 306) and toxic substances compliance monitoring programs
(TSCA sections 28), and reaffirms EPA's determination that Tribes are
eligible for Pollution Prevention Incentive grants under section 6605
of the PPA (see, e.g., 56 FR 11553 (1991)).
Previously, EPA determined that it has the authority to approve
Tribal lead-based paint abatement certification and training programs
and make grants to Tribes under section 404(g) of TSCA for the
development and implementation of such programs even though TSCA makes
no mention of Tribes. 61 FR 45778, 45805-808 (1996). The Agency
reasoned that its interpretation of TSCA is governed by the principles
of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984) and that because Congress had not explicitly stated its
intent in adopting the statutory provision, the Agency could adopt an
interpretation which in its expert judgment is reasonable in light of
the goals and purposes of the statute. EPA opined further that since
TSCA did not define a role for Tribes, there was an ambiguity in
Congressional intent and therefore, the Agency's interpretation of TSCA
to allow Tribes to apply for program authorization was permissible
under Chevron. EPA reasoned further that this interpretation is
consistent with Supreme Court precedent holding that limitations on
Tribal sovereignty must be ``unmistakably clear,'' Montana v. Blackfeet
Indian Tribe, 471 U.S. 759 (1985), and that statutes are to be
construed liberally in favor of the Indians, with ambiguous provisions
interpreted for their benefit. County of Yakima v. Yakima Indian
Nation, 502 U.S. 251, 268 (1992). Finally, EPA noted that allowing
Tribes to apply for program authorization is consistent with the
general principles of federal Indian law ``encouraging tribal
independence,'' Ramah Navaho Sch. Bd. v. Bureau of
[[Page 40089]]
Revenue, 458 U.S. 832, 846 (1985), and the Agency's Indian policy which
states that environmental programs in Indian country will be
implemented to the maximum extent possible by Tribal governments. In
light of these principles, EPA reasoned that Tribes are also eligible
for grants to develop and implement lead-based paint certification and
training programs under section 404(g) of TSCA.
Consistent with the reasoning that warranted EPA's determination
with respect to Tribal lead program approval and grant authority, EPA
interprets sections 28 and 306 of TSCA and section 6605 of PPA to
authorize grants to Tribes as well as States, even though there is no
program approval or authorization associated with the grant programs
for radon abatement, toxics substance compliance monitoring, or
pollution prevention incentives. While Congress did not expressly
provide a role for Tribes in either TSCA or PPA, both statutes were
clearly intended to have comprehensive, nationwide coverage--including
the provisions regarding financial assistance for these programs. EPA
does not believe that Congress intended the Agency to provide grants
exclusively to States and thereby leave Tribal lands without the
benefit of the grant assistance for these programs, since the problems
and goals they address--toxic substances, radon abatement and pollution
prevention--are relevant throughout the nation in both State and Tribal
areas. Therefore, EPA has determined that it is appropriate to provide
grants to Tribes for Radon Abatement programs under section 306 of
TSCA, Toxics Substances Compliance Monitoring programs under section 28
of TSCA, and Pollution Prevention Incentives programs under section
6605 of PPA, EPA invites comments on this issue.
In order to be eligible for a grant under TSCA section 28, TSCA
section 306, or PPA section 6605, a Tribe or each member of an
Intertribal Consortium must establish eligibility for treatment in a
manner similar to a State by demonstrating that it:
(1) Is recognized by the Secretary of Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
If the Administrator has previously determined that an Indian Tribe
has met the prerequisites in (1) and (2) for another EPA program, the
Tribe need provide only that information unique to the particular
program required by paragraph (3) and (4).
Public Water System Supervision Tribal Reserve
The current regulation (40 CFR 35.115(g)) provides that the EPA
shall annually reserve up to three percent of each year's Public Water
System Supervision (PWSS) funds for use on Indian lands. The Agency is
proposing to increase the authorized amount of the reserve to up to
seven percent. This increase will provide needed funds for the Tribal
PWSS program without affecting States' current funding.
The Tribal reserve is used for two purposes: to allow EPA to
directly implement the PWSS program on Tribal lands; and to assist
Tribes with developing PWSS primacy programs. The three percent
ceiling, established in 1988, was EPA's estimate of the amount that
would be needed to achieve both of these purposes. Over the past 10
years, we have realized that three percent is not adequate to achieve
both purposes. To date, only the Navajo Nation has submitted a complete
PWSS primacy package and only three other Tribes have taken steps
toward primacy. We believe that there are more Tribes which may be
interested in the program but have not yet voiced that interest because
they do not have the capacity to develop an adequate program. We also
believe more Tribes would take interest in the program if sufficient
funds were available.
In addition, the current Tribal reserve is insufficient to cover
basic direct implementation needs. Tribal systems have a high number of
monitoring/reporting and maximum contaminant level violations. These
same systems will need to abide by upcoming drinking water regulations
and will be asked to partake in several new initiatives outlined in the
revised SDWA, including source water protection, capacity development,
and operator certification. Although these initiatives are not required
of Tribes, we believe that EPA, as the primary enforcement authority of
non primacy Tribal systems, should address these initiatives on Tribal
lands. Additional Tribal funding can help EPA and Tribes respond to
Tribal safe drinking water needs.
EPA requested Congress to provide for funding in excess of an
amount necessary for the traditional three percent reserve in fiscal
year 1998 to assist Tribes in developing capacity, maintaining their
own PWSS programs and to provide additional support to the Tribal PWSS
Direct Implementation program. In fiscal years 1998 and 1999, EPA
received an additional $3,780,500 for these purposes. In order to use
those funds for Tribes, EPA needed to deviate from the regulation at 40
CFR 35.115(g), which limits EPA's Tribal PWSS reserve to three percent.
Instead of continuing to deviate from the regulations, EPA proposes to
raise the ceiling of our annual Tribal reserve to Aup to seven percent.
With the additional $3.78M PWSS program appropriation, the ceiling of
funding for Tribes can be raised to 6.91 percent (the amount we propose
to give Tribes in FY-00) without taking away from States' current
funding levels.
Safe Drinking Water Act and Alaska Native Villages
EPA is proposing a new interpretation of the definition of ``Indian
Tribe'' in 42 U.S.C. 300f(14) that would include eligible Alaska Native
Villages (ANVs) in that definition for purposes of PWSS and Underground
Water Source Protection (also known as underground injection control
(UIC)) grants under 42 U.S.C . 300j-2(a) and (b), and primacy for PWSS
and UIC programs under 42 U.S.C. 300g-2, 300h-1 and 300h-4. Under this
proposed approach, a federally-recognized Tribe in Alaska could seek to
demonstrate that it is eligible for treatment in the same manner as a
State according to the criteria established by Congress in 42 U.S.C .
300j-11 and in EPA's regulations at 40 CFR 142.72 and 145.52.
In 1988, EPA announced its interpretation that the term ``Indian
Tribe'' in 42 U.S.C . 300(f)(14) does not include ANVs. 53 FR 37396,
37407. This interpretation was based on the Agency's reading of
legislative history and EPA's view that Congress would have explicitly
mentioned ANVs if it intended to include ANVs in the definition of
Indian Tribes. EPA now believes it is more consistent with
Congressional intent and federal Indian law and policy to interpret the
term ``Indian Tribe'' in 42 U.S.C . 300f(14) to include Indian Tribes
located in Alaska (i.e., ANVs) that otherwise meet the SDWA's
definition of Indian Tribe.
Under the SDWA, the term ``Indian Tribe'' means ``any Indian Tribe
having a federally recognized governing body carrying out substantial
governmental duties and powers over any area.'' 42 U.S.C . 300(f)(14).
In 1993, the Department of the Interior (DOI) clarified that the Alaska
Native entities listed on DOI's list of federally-recognized Tribes
have the same governmental status as other federally acknowledged
Indian Tribes by
[[Page 40090]]
virtue of their status as Indian Tribes with a government-to-
government relationship with the United States; are entitled to the
same protection, immunities, privileges as other acknowledged
Tribes; have the right, subject to general principles of federal
Indian law, to exercise the same inherent and delegated authorities
available to other Tribes; and are subject to the same limitations
imposed by law on other Tribes. 58 FR 54364, 54366 (1993).
Thus, because DOI has clarified that federally-recognized Tribes in
Alaska have the same status as other federally-recognized Tribes, EPA
believes that ANVs that otherwise meet the SDWA's definition of Indian
Tribe should not be excluded from seeking PWSS and UIC program primacy
or related program grants. This interpretation is consistent with the
plain language of the SDWA's definition of ``Indian Tribe'' and EPA's
policy that Indian Tribes are the appropriate entities to set
environmental standards and manage their environments where they have
the authority and capability to do so. See EPA's 1984 Indian Policy. It
is also consistent with Supreme Court precedent holding that any
statutory limitations on Tribal sovereignty must be stated explicitly,
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Montana v.
Blackfeet Indian Tribe, 471 U.S. 759 (1985), and that statutes are to
be construed liberally in favor of the Indians, with ambiguous
provisions interpreted for their benefit. County of Yakima v. Yakima
Indian Nation, 502 U.S. 251, 268 (1992).
EPA notes that, while this change in interpretation would include
ANVs that otherwise meet the SDWA's definition of Indian Tribe within
the context of the PWSS and UIC programs, any ANV wishing to seek
primacy, or a primacy development grant, for either the PWSS or UIC
programs would still need to demonstrate that it meets the relevant
statutory and regulatory eligibility criteria, including the
jurisdictional requirements contained in 42 U.S.C. 300j-11, 40 CFR
142.72 and 145.52, 40 CFR 35.676 and 35.686 of this subpart. The Agency
also wants to clarify that under this proposal, EPA would evaluate, on
a case-by-case basis (when requested to do so by an Alaska Tribe in an
application for grant or primacy eligibility) whether an Alaska Tribe
meets the criteria for program primacy or a related program grant. The
State of Alaska currently has primacy for PWSS and UIC (Class II wells)
for all areas in Alaska except Indian country. EPA is not proposing to
amend the extent of the State's primacy through this notice.
In the 1996 amendments to the Safe Drinking Water Act, Congress
added a sentence to the definition of Indian Tribe explicitly noting
that the term ``Indian Tribe'' for purposes of the State Revolving Fund
(SRF) program includes ``any Native village.'' 42 U.S.C. 300f(14)
(emphasis added). EPA believes that, through this change, Congress only
intended to ensure that all Native villages may receive SRF grants. EPA
believes that this provision was not intended to mean that federally-
recognized Tribes carrying out substantial governmental duties and
powers in Alaska are excluded from the definition of Indian Tribe for
purposes other than SRF.
EPA requests comments on this change in interpretation of the
definition of an Indian Tribe.
Regulations for Programs To Manage Hazardous Waste and Underground
Storage Tanks
After the EPA workgroup reached closure on this proposed
rulemaking, Congress authorized the Agency to award grants to Tribes
``for the development and implementation of programs to manage
hazardous waste, and underground storage tanks.'' Departments of
Veterans Affairs and Housing and Urban Development, and Independent
Agencies Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461,
2499 (1998). EPA intends to include regulations for these programs in
the final rule. Therefore, EPA seeks comments on providing financial
assistance to Tribes for programs to manage hazardous waste and
underground storage tanks.
IX. Conclusion
This Tribal-specific subpart reflects EPA's regulatory and
budgetary efforts to improve the continuity and stability of financial
assistance for Tribal environmental programs. Recipients will benefit
from the streamlined and simplified requirements of the regulation. In
addition, it will provide Tribes and Intertribal Consortia choosing to
participate in the PPG program with the flexibility to better use funds
to address their environmental priorities.
Regulatory Flexibility Act
The Agency has determined that the requirement in the Regulatory
Flexibility Act (RFA) to prepare a regulatory flexibility analysis does
not apply to this rule. A regulatory flexibility analysis must be
prepared only where the Agency is required by the Administrative
Procedure Act (APA) or any other statute to publish a general notice of
proposed rule making (5 U.S.C. 603). Grant-related matters, such as
this rule, are not subject to the notice and comment requirements of
the APA (5 U.S.C. 553(a)(1)). Nor is this rule required to undergo
notice and comment rule making by any other statute.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. This regulation contains no federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
Tribal governments or the private sector. The UMRA excludes from the
definitions of ``federal intergovernmental mandate'' and federal
participation mandates'' duties that arise from conditions of federal
assistance.
National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), EPA is required to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impracticable. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standards
bodies. Where available and potentially applicable voluntary consensus
standards are not used, the Act requires EPA to provide Congress,
through the Office of Management and Budget, an explanation of the
reasons for not using such standards.
This proposed rule does not involve any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. Commenters who disagree with this conclusion should indicate
how the Notice is subject to the Act and identify any potentially
applicable voluntary consensus standards.
Executive Order 13045
Executive Order 13045 applies to any rule that is determined to be:
(1) ``economically significant'' as defined
[[Page 40091]]
under Executive Order 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children; and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by the Agency.
EPA has determined that the proposed rule is not a covered
regulatory action because it is not economically significant and it
does not involve decisions based on environmental health and safety
risks. As such, the proposed rule is not subject to the requirements of
the Executive Order.
Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) a
significant regulatory action is 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 a ``significant regulatory
action'' under the terms of Executive Order 12866 because the
Performance Partnership Grant authority is a new type of grant
authority and therefore raises novel policy issues. As such, this
action was submitted to the Office of Management and Budget (OMB) for
review. Changes made in response to OMB suggestions and recommendations
will be documented in the public record.
Paperwork Reduction Act
In keeping with the requirements of the Paperwork Reduction Act (
PRA), as amended, 44 U.S.C. 3501 et seq., the information collection
requirements contained in this rule have been approved by OMB under
General Administrative Requirements for Assistance Programs information
collection request number 0938.06 (OMB Control Number 2030-0020) and
Quality Assurance Specifications and Requirements information request
number 0866.05 (OMB Control Number 2080-0033). This rule does not
contain any collection of information requirements beyond those already
approved. Since this action imposes no new or additional information
collection, reporting, or record-keeping requirements subject to the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., no information request
will be submitted to the Office of Management and Budget for review.
Executive Order 12875
Under Executive Order 12875, Enhancing Intergovernmental
Partnerships, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or Tribal
government, unless the federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments or EPA
consults with these governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and Tribal
governments, the nature of their concerns, any written communications
from the governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and Tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
This proposed rule does not create a mandate on State, local or
Tribal governments nor does it impose any enforceable duties on these
entities as it governs the award of financial assistance. Instead, this
proposed rule is designed to reduce the administrative burden
associated with grants for environmental programs. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply.
Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments or consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule may significantly or uniquely affect the communities of
Indian Tribal governments, but it will not impose substantial direct
compliance costs on such communities. This rule governs financial
assistance to Tribes. Any costs associated with this regulation will be
incurred by a Tribe as a result of its discretionary decision to seek
financial assistance. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply.
List of Subjects in 40 CFR Part 35
Environmental protection, Administrative practice and procedures,
Evaluation of performance, Performance partnership grants, Requirements
for specific grant programs, Work plan requirements.
Dated: June 30, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, title 40, chapter I of
the Code of Federal Regulations is proposed to be amended as follows:
PART 35--[AMENDED]
1. The authority citation for part 35 continues to read as follows:
Authority: 42 U.S.C. 4368b.
2. EPA is proposing to remove subpart Q.
3. EPA is proposing to add a new subpart B to read as follows.
[[Page 40092]]
Subpart B--Environmental Program Grants for Indian Tribes
All Grants--General
Sec.
35.500 Purpose of the subpart.
35.501 Environmental programs covered by the subpart.
35.502 Definition of terms.
35.503 Deviation from this subpart.
35.504 Eligibility of an Intertribal Consortium.
Preparing an Application
35.505 Components of a complete application.
35.506 Time frame for submitting an application.
35.507 Work plans.
35.508 Budget period.
35.509 Consolidated grants.
EPA Action on Application
35.510 Time frame for EPA action.
35.511 Criteria for approving an application.
35.512 Factors considered in determining award amount.
35.513 Reimbursement for pre-award costs.
Post-Award Requirements
35.514 Amendments and other changes.
35.515 Evaluation of performance.
35.516 Direct implementation.
35.517 Unused funds.
35.518 Unexpended balances.
35.519 Preferences for Indians, Indian organizations, and Indian-
owned economic enterprises.
Performance Partnership Grants
35.530 Purpose of Performance Partnership Grants.
35.532 Requirements summary.
35.533 Programs eligible for inclusion.
35.534 Eligible recipients.
35.535 Activities eligible for funding.
35.536 Cost share requirements.
35.537 Application requirements.
35.538 Project period.
Indian Environmental General Assistance Program (GAP)
35.540 Purpose.
35.542 Definitions.
35.543 Eligible recipients.
35.545 Eligible activities.
35.548 Award limitations.
Air Pollution Control (Section 105)
35.570 Purpose.
35.572 Definition.
35.573 Eligible tribe.
35.575 Maximum Federal share.
35.576 Maintenance of effort.
35.578 Award limitation.
Water Pollution Control (Sections 106 and 518)
35.580 Purpose.
35.582 Definitions.
35.583 Eligible recipients.
35.585 Maximum Federal share.
35.588 Award limitations.
Water Quality Cooperative Agreements (Section 104(b)(3))
35.600 Purpose.
35.603 Competitive process.
35.604 Maximum Federal share.
Wetlands Development Grant Program (Section 104(b)(3))
35.610 Purpose.
35.613 Competitive process.
35.615 Maximum Federal share.
Nonpoint Source Management Grants (Sections 319(h) and 518(f))
35.630 Purpose.
35.632 Definition.
35.633 Eligibility requirements.
35.635 Maximum Federal share.
35.636 Maintenance of effort.
35.638 Award limitations.
Pesticide Cooperative Enforcement (Section 23 (a)(1))
35.640 Purpose.
35.641 Eligible recipients.
35.642 Maximum Federal share.
35.645 Basis for allotment.
Pesticide Applicator Certification and Training (Section 23(a)(2))
35.646 Purpose.
35.649 Maximum Federal share.
Pesticide Program Implementation (Section 23(a)(1))
35.650 Purpose.
35.653 Eligible recipients.
35.655 Basis for allotment.
35.659 Maximum Federal share.
Pollution Prevention Incentive Grants (Section 6605)
35.660 Purpose.
35.661 Competitive process.
35.662 Definitions.
35.663 Eligible recipients.
35.668 Award limitations.
35.669 Maximum Federal share.
Public Water System Supervision (Sections 1443(a) and 1451)
35.670 Purpose.
35.672 Definition.
35.673 Annual amount reserved by EPA.
35.675 Maximum Federal share.
35.676 Eligible recipients.
35.678 Award limitations.
Underground Water Source Protection (Section 1443(b))
35.680 Purpose.
35.682 Definition.
35.683 Annual amount reserved by EPA.
35.685 Maximum Federal share.
35.686 Eligible recipients
35.688 Award limitations.
Lead-Based Paint Program (Section 404(g))
35.690 Purpose.
35.691 Funding coordination.
35.693 Eligible recipients.
Indoor Radon Grants (Section 306)
35.700 Purpose.
35.702 Basis for allotment.
35.703 Eligible recipients.
35.705 Maximum Federal share.
35.708 Award limitations.
Toxic Substances Compliance Monitoring (Section 28)
35.710 Purpose.
35.712 Competitive process.
35.713 Eligible recipients.
35.715 Maximum Federal share.
35.718 Award limitation.
Subpart B--Environmental Program Grants--Indian Tribes
Authority: 42 U.S.C. 300f et seq. 6901 et seq., 7401 et seq.,
13101 et seq 33 U.S.C. 1251 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C.
2601 et seq.; Pub. L. 104-134, 110 Stat. 1321, 1321-299 (1996); Pub.
L. 105-65, 111 Stat. 1344, 1373 (1997).
All Grants--General
Sec. 35.500 Purpose of the subpart.
This subpart establishes administrative requirements for grants
awarded to Indian Tribes and Intertribal Consortia for the
environmental programs listed in Sec. 35.501. This subpart supplements
requirements in EPA's general grant regulations found at 40 CFR part
31. Sections 35.500 through 35.518 contain administrative requirements
that apply to all environmental program grants included in this
subpart. Sections 35.530 through 35.718 contain requirements that apply
to specified environmental program grants. Many of these environmental
programs also have programmatic and technical requirements that are
published elsewhere in the Code of Federal Regulations.
Sec. 35.501 Environmental programs covered by the subpart.
(a) The requirements in this subpart apply to grants awarded for
the following programs:
(1) Performance Partnership Grants (1996 Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Public Law 104-134, 110
Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs,
Housing and Urban Development, and Independent Agencies Appropriations
Act of 1998, Public Law 105-65, 111 Stat. 1344, 1373 (1997)).
(2) The Indian Environmental General Assistance Program Act of
1992, 42 U.S.C. 4368b.
(3) Clean Air Act. Air pollution control (section 105).
(4) Clean Water Act.
(i) Water pollution control (section 106 and 518).
(ii) Water quality cooperative agreements (section 104(b)(3)).
(iii) Wetlands development grant program (section 104(b)(3)).
(iv) Nonpoint source management (section 319(h)).
(5) Federal Insecticide, Fungicide, and Rodenticide Act.
[[Page 40093]]
(i) Pesticide cooperative enforcement (section 23(a)(1)).
(ii) Pesticide applicator certification and training (section
23(a)(2)).
(iii) Pesticide program implementation (section 23(a)(1)).
(6) Pollution Prevention Act of 1990. Pollution prevention
incentives for Tribes (section 6605).
(7) Safe Drinking Water Act.
(i) Public water system supervision (section 1443(a)).
(ii) Underground water source protection (section 1443(b)).
(8) Toxic Substances Control Act.
(i) Lead-based paint program (section 404(g)).
(ii) Indoor radon grants (section 306).
(iii) Toxic substances compliance monitoring (section 28).
(b) Unless otherwise prohibited by statute or regulation, the
requirements in Sec. 35.500 through Sec. 35.518 of this subpart also
apply to grants to Indian Tribes and Intertribal Consortia under
environmental programs established after this subpart becomes
effective, if specified in Agency guidance for such programs.
Sec. 35.502 Definition of terms.
Terms are defined as follows when they are used in this regulation.
Budget period. The period specified in the grant agreement during
which the recipient may expend or obligate funds for the purposes
specified in the agreement.
Consolidated grant. A single grant made to a recipient
consolidating funds from more than one environmental grant program.
After the award is made, recipients must account for grant funds in
accordance with the funds' original environmental program sources.
Consolidated grants are not Performance Partnership Grants.
Environmental program. A program for which EPA awards grants under
the authorities listed in Sec. 35.501. The grants are subject to the
requirements of this subpart.
Federal Indian reservation. All land within the limits of any
Indian reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation.
Indian country. (1) All land within the limits of any Indian
reservation under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation;
(2) All dependent Indian communities within the borders of the
United States, whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and,
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
Intertribal Consortium or Consortia. A partnership between two or
more Tribes that is authorized by the governing bodies of those Tribes
to apply for and receive assistance under one or more of the programs
listed in Sec. 35.501. A Consortium must have adequate documentation of
the existence of the partnership and the authorization to apply for and
receive assistance.
National program guidance. Guidance issued by EPA's National
Program Managers for establishing and maintaining effective
environmental programs. This guidance establishes national goals,
objectives, and priorities as well as other information to be used in
monitoring progress. The guidance may also set out specific
environmental strategies, core performance measures, criteria for
evaluating programs, and other elements of program implementation.
Outcome. The environmental result, effect, or consequence that will
occur from carrying out an environmental program or activity that is
related to an environmental or programmatic goal or objective. Outcomes
must be quantitative, and they may not necessarily be achievable during
a grant budget period. See ``output.''
Output. An environmental activity or effort and associated work
products related to an environmental goal or objective that will be
produced or provided over a period of time or by a specified date.
Outputs may be quantitative or qualitative but must be measurable
during a grant budget period. See ``outcome.''
Performance Partnership Grant. A single grant combining funds from
more than one environmental program. A Performance Partnership Grant
may provide for administrative savings or programmatic flexibility to
direct grant resources where they are most needed to address public
health and environmental priorities (see also Sec. 35.530). Each
Performance Partnership Grant has a single, integrated budget and
recipients do not need to account for grant funds in accordance with
the funds' original environmental program sources.
Planning target. The amount of funds that the Regional
Administrator suggests a grant applicant consider in developing its
application, including the work plan, for an environmental program.
Regional supplemental guidance. Guidance to environmental program
grant applicants prepared by the Regional Administrator, based on the
national program guidance and specific regional and applicant
circumstances, for use in preparing a grant application.
Tribal Environmental Agreement (TEA). A strategic planning document
designated as a TEA and signed by the Regional Administrator and an
appropriate Tribal official that sets out negotiated environmental
goals, objectives, outcomes, outputs, priorities, actions to be taken,
and measures of performance.
Tribe. Except as otherwise defined in statute or this subpart,
Indian Tribal Government (Tribe) means: any Indian Tribe, band, nation,
or other organized group or community, including any Alaska Native
village, which is recognized as eligible by the United States
Department of the Interior for the special services provided by the
United States to Indians because of their status as Indians.
Work plan. The document which identifies how and when the applicant
will use funds from environmental program grants and is the basis for
management and evaluation of performance under the grant agreement to
produce specific outputs and outcomes (see 35.507). The work plan must
be consistent with applicable statutes, regulations, and delegation or
authorization agreements.
Work plan commitments. The outputs and outcomes associated with
each work plan component, as established in the grant agreement.
Work plan component. A negotiated set or group of work plan
commitments established in the grant agreement. A work plan may have
one or more work plan components.
Sec. 35.503 Deviation from this subpart.
EPA will consider and may approve requests for an official
deviation from non-statutory provisions of this regulation in
accordance with 40 CFR 31.6.
Sec. 35.504 Eligibility of an Intertribal Consortium.
(a) An Intertribal Consortium is eligible to receive grants under
the authorities listed in Sec. 35.501 only if the Consortium
demonstrates that all members of the Consortium meet the eligibility
requirements for the grant and authorize the Consortium to apply for
and receive assistance, except as provided in paragraph (b) of this
section.
(b) An Intertribal Consortium is eligible to receive a grant under
the
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Indian Environmental General Assistance Program Act, in accordance with
Sec. 35.540, if the Consortium demonstrates that:
(1) A majority of its members meets the eligibility requirements
for the grant;
(2) All members that meet the eligibility requirements authorize
the Consortium to apply for and receive assistance; and
(3) Only members that meet the eligibility requirements will
benefit directly from the grant project and the Consortium agrees to a
grant condition to that effect.
Preparing an Application
Sec. 35.505 Components of a complete application.
A complete application for an environmental program grant must:
(a) Meet the requirements in 40 CFR part 31, subpart B;
(b) Include a proposed work plan (Sec. 35.507 of this subpart); and
(c) Specify the environmental program and the amount of funds
requested.
Sec. 35.506 Time frame for submitting an application.
An applicant should submit a complete application to EPA at least
60 days before the beginning of the proposed budget period.
Sec. 35.507 Work plans.
(a) Bases for negotiating work plans. The work plan is negotiated
between the applicant and the Regional Administrator and reflects
consideration of national, regional, and Tribal environmental and
programmatic needs and priorities.
(1) Negotiation considerations. In negotiating the work plan, the
Regional Administrator and applicant will consider such factors as
national program guidance; any regional supplemental guidance; goals,
objectives, and priorities proposed by the applicant; other jointly
identified needs or priorities; and the planning target.
(2) National program guidance. If an applicant proposes a work plan
that differs significantly from the goals and objectives, priorities,
or performance measures in the national program guidance associated
with the proposed work plan activities, the Regional Administrator must
consult with the appropriate National Program Manager before agreeing
to the work plan.
(3) Use of existing guidance. An applicant should base the grant
application on the national program guidance in place at the time the
application is being prepared.
(b) Work plan requirements.
(1) The work plan is the basis for the management and evaluation of
performance under the grant agreement.
(2) An approvable work plan must specify:
(i) The work plan components to be funded under the grant;
(ii) The estimated work years and funding amounts for each work
plan component;
(iii) The work plan commitments for each work plan component, and a
time frame for their accomplishment;
(iv) A performance evaluation process and reporting schedule in
accordance with Sec. 35.515 of this subpart; and
(v) The roles and responsibilities of the recipient and EPA in
carrying out the work plan commitments.
(3) The work plan must be consistent with applicable federal
statutes, regulations, circulars, executive orders, and delegation or
authorization agreements.
(c) Tribal Environmental Agreement as work plan. An applicant may
use a Tribal Environmental Agreement (TEA) or a portion of the TEA as
the work plan or part of the work plan for an environmental program
grant if the portion of the TEA that is to serve as the grant work
plan:
(1) Is clearly identified and distinguished from other portions of
the TEA; and
(2) Meets the requirements in Sec. 35.507(b).
Sec. 35.508 Budget period.
The Regional Administrator and applicant may negotiate the length
of the budget period for environmental program grants, subject to
limitations in appropriations and authorizing statutes.
Sec. 35.509 Consolidated grants.
Any applicant eligible to receive funds from more than one
environmental program may submit an application for a consolidated
grant. For consolidated grants, an applicant prepares a single budget
and work plan covering all of the environmental programs included in
the application. The consolidated budget must identify each
environmental program to be included, the amount of each program's
funds, and the extent to which each program's funds support each work
plan component. Recipients of consolidated grants must account for
grant funds in accordance with the funds' environmental program
sources; funds included in a consolidated grant from a particular
environmental program may be used only for that program.
EPA Action on Application
Sec. 35.510 Time frame for EPA action.
The Regional Administrator will review a complete application and
either approve, conditionally approve, or disapprove it within 60 days
of receipt. The Regional Administrator will award grants for approved
or conditionally approved applications if funds are available.
Sec. 35.511 Criteria for approving an application.
(a) After evaluating other applications as appropriate, the
Regional Administrator may approve an application if he or she
determines that:
(1) The application meets the requirements of this subpart and 40
CFR part 31;
(2) The application meets the requirements of all applicable
federal statutes, regulations, circulars, executive orders, and
delegation or authorization agreements;
(3) The proposed work plan complies with the requirements of
Sec. 35.507 of this subpart; and
(4) The achievement of the proposed work plan is feasible,
considering such factors as the applicant's existing circumstances,
past performance, program authority, organization, resources, and
procedures.
(b) If the Regional Administrator finds the application does not
satisfy the criteria in paragraph (a) of this section, the Regional
Administrator may either:
(1) Conditionally approve the application if only minor changes are
required, with grant conditions necessary to ensure compliance with the
criteria, or
(2) Disapprove the application in writing.
Sec. 35.512 Factors considered in determining award amount.
(a) After approving an application under Sec. 35.511, the Regional
Administrator will consider such factors as the amount of funds
available for award to Indian Tribes and Intertribal Consortia, the
extent to which the proposed work plan is consistent with EPA guidance
and mutually agreed upon priorities, and the anticipated cost of the
work plan relative to the proposed work plan components to determine
the amount of funds to be awarded.
(b) If the Regional Administrator finds that the requested level of
funding is not justified, he or she will attempt to negotiate a
resolution of the issues with the applicant before determining the
award amount.
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Sec. 35.513 Reimbursement for pre-award costs.
(a) Notwithstanding the requirements of 40 CFR 31.23(a) (Period of
availability of funds), and OMB cost principles, EPA may reimburse
recipients for pre-award costs incurred from the beginning of the
budget period established in the grant agreement if such costs would
have been allowable if incurred after the award. Such costs must be
specifically identified in the grant application EPA approves.
(b) The applicant incurs pre-award costs at its own risk. EPA is
under no obligation to reimburse such costs unless they are included in
an approved grant application .
Post-Award Requirements
Sec. 35.514 Amendments and other changes.
The provisions of 40 CFR 31.30 do not apply to environmental
program grants awarded under this subpart. The following provisions
govern amendments and other changes to grant work plans and budgets
after the work plan is negotiated and a grant awarded.
(a) Changes requiring prior approval. The recipient needs the
Regional Administrator's prior written approval to make significant
post-award changes to work plan commitments. The Regional Office, in
consultation with the recipient, will document approval of these
changes including budgeted amounts associated with the revisions.
(b) Changes requiring approval. Recipients must request, in
writing, grant amendments for changes requiring increases in
environmental program grant amounts and extensions of the budget
period. Recipients may begin implementing a change before the amendment
has been approved by EPA, but do so at their own risk. If EPA approves
the change, EPA will issue a grant amendment. EPA will notify the
recipient in writing if the change is disapproved.
(c) Changes not requiring approval. Other than those situations
described in paragraphs (a) and (b) of this section, recipients do not
need to obtain approval for changes, including changes in grant work
plans, budgets, or other parts of grant agreements, unless the Regional
Administrator determines approval requirements should be imposed on a
specific recipient for a specified period of time.
(d) OMB cost principles. The Regional Administrator may waive, in
writing, approval requirements for specific recipients and costs
contained in OMB cost principles.
(e) Changes in consolidated grants. Recipients of consolidated
grants under Sec. 35.509 may not transfer funds among environmental
programs.
(f) Subgrants. Subgrantees must request required approvals in
writing from the recipient and the recipient shall approve or
disapprove the request in writing. A recipient will not approve any
work plan or budget revision which is inconsistent with the purpose or
terms and conditions of the federal grant to the recipient. If the
revision requested by the subgrantee would result in a significant
change to the recipient's approved grant which requires EPA approval,
the recipient will obtain EPA's approval before approving the
subgrantee's request.
Sec. 35.515 Evaluation of performance.
(a) Joint evaluation process. The applicant and the Regional
Administrator will develop a process for jointly evaluating and
reporting progress and accomplishments under the work plan. A
description of the evaluation process and reporting schedule must be
included in the work plan. The schedule must require the recipient to
report at least annually and must satisfy the requirements for progress
reporting under 40 CFR 31.40(b).
(b) Elements of the evaluation process. The evaluation process must
provide for:
(1) A discussion of accomplishments as measured against work plan
commitments;
(2) A discussion of the cumulative effectiveness of the work
performed under all work plan components;
(3) A discussion of existing and potential problem areas; and
(4) Suggestions for improvement, including, where feasible,
schedules for making improvements.
(c) Resolution of issues. If the joint evaluation reveals that the
recipient has not made sufficient progress under the work plan, the
Regional Administrator and the recipient will negotiate a resolution
that addresses the issues. If the issues cannot be resolved through
negotiation, the Regional Administrator may take appropriate measures
under 40 CFR 31.43. The recipient may request review of the Regional
Administrator's decision under the dispute processes in 40 CFR 31.70.
(d) Evaluation reports. The Regional Administrator will ensure that
the required evaluations are performed according to the negotiated
schedule and that copies of evaluation reports are placed in the
official files and provided to the recipient.
Sec. 35.516 Direct implementation.
If funds for an environmental program remain after Tribal and
Intertribal Consortia environmental program grants for that program
have been awarded or because no grants were awarded, the Regional
Administrator may, subject to any limitations contained in
appropriation acts, use all or part of the funds to support a federal
program required by law in Indian country in the absence of an
acceptable Tribal program.
Sec. 35.517 Unused funds.
If funds for an environmental program remain after Tribal and
Intertribal Consortia grants for that program have been awarded or
because no grants were awarded, and the Regional Administrator does not
use the funds under Sec. 35.516 of this subpart, the Regional
Administrator may award the funds to any eligible Indian Tribe or
Intertribal Consortium in the region (including a Tribe or Intertribal
Consortium that has already received funds) for the same environmental
program or for a Performance Partnership Grant, subject to any
limitations in appropriation acts.
Sec. 35.518 Unexpended balances.
Subject to any relevant provisions of law, if a recipient's final
Financial Status Report shows unexpended balances, the Regional
Administrator will deobligate the unexpended balances and make them
available, either to the same recipient or other Tribes or Intertribal
Consortia in the region, for environmental program grants.
Sec. 35.519 Preferences for Indians, Indian organizations, and Indian-
owned economic enterprises.
Any grant awarded under this subpart, and any subgrant, contract,
or subcontract under such grant, shall require that to the greatest
extent feasible:
(a) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants be given
to Indians; and
(b) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants be given
to Indian organizations and to Indian-owned economic enterprises as
defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77)
[25 USCS 1452].
Performance Partnership Grants
Sec. 35.530 Purpose of Performance Partnership Grants.
(a) Purpose of section. Sections 35.530 through 35.538 govern
Performance Partnership Grants to Tribes and
[[Page 40096]]
Intertribal Consortia authorized in the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Public Law 104-134, 110
Stat. 1321, 1321-299 (1996) and Departments of Veterans Affairs and
Housing and Urban Development, and Independent Agencies Appropriations
Act, 1998, Public Law 105-65, 111 Stat. 1344, 1373 (1997).
(b) Purpose of program. Performance Partnership Grants enable
Tribes and Intertribal Consortia to combine funds from more than one
environmental program grant into a single grant with a single budget.
Recipients do not need to account for Performance Partnership Grant
funds in accordance with the funds' original environmental program
sources; they need only account for total Performance Partnership Grant
expenditures. Subject to the requirements of this subpart, the
Performance Partnership Grant program is designed to:
(1) Strengthen partnerships between EPA and Tribes and Intertribal
Consortia through joint planning and priority-setting and better
deployment of resources;
(2) Provide Tribes and Intertribal Consortia with flexibility to
direct resources where they are most needed to address environmental
and public health priorities;
(3) Link program activities more effectively with environmental and
public health goals and program outcomes;
(4) Foster development and implementation of innovative approaches,
such as pollution prevention, ecosystem management, and community-based
environmental protection strategies; and
(5) Provide savings by streamlining administrative requirements.
Sec. 35.532 Requirements summary.
(a) Applicants and recipients of Performance Partnership Grants
must meet:
(1) The requirements in Secs. 35.500 to 35.518 of this subpart
which apply to all environmental program grants, including Performance
Partnership Grants; and
(2) The requirements in Secs. 35.530 to 35.538 of this subpart
which apply only to Performance Partnership Grants.
(b) In order to include funds from an environmental program grant
listed in Sec. 35.501(a) of this subpart in a Performance Partnership
Grant, applicants must:
(1) Meet the requirements for award of each environmental program
from which funds are included in the Performance Partnership Grant,
except the requirements at Secs. 35.548(c), 35.638(b) and (c), 35.691,
and 35.708 (c), (d), (e), and (g). These requirements can be found in
this regulation beginning at Sec. 35.540. If the applicant is an
Intertribal Consortium, each Tribe that is a member of the Consortium
must meet the requirements.
(2) Apply for the environmental program grant.
(3) Obtain the Regional Administrator's approval of the application
for that grant.
(c) If funds from an environmental program are not included in a
Performance Partnership Grant, an applicant is not required to meet the
requirements of that environmental program in order to carry out
activities eligible under that program as provided in Sec. 35.535.
Sec. 35.533 Programs eligible for inclusion.
(a) Eligible programs. Except as provided in paragraph (b) of this
section, the environmental program grants eligible for inclusion in a
Performance Partnership Grant are listed in Sec. 35.501(a)(2) through
(8) of this subpart.
(b) Changes in eligible programs. The Administrator may, in
guidance or regulation, describe subsequent additions, deletions, or
changes to the list of environmental programs eligible for inclusion in
Performance Partnership Grants.
Sec. 35.534 Eligible recipients.
(a) A Tribe or Intertribal Consortium is eligible for a Performance
Partnership Grant if the Tribe or each member of the Intertribal
Consortium is eligible for, and the Tribe or Intertribal Consortium
receives funding from, more than one of the environmental program
grants listed in Sec. 35.501(a) in accordance with the requirements for
those environmental programs.
(b) For grants to Tribes, a Tribal agency must be designated by a
Tribal government or other authorized Tribal process to receive grants
under each of the environmental programs to be combined in the
Performance Partnership Grant.
Sec. 35.535 Activities eligible for funding.
(a) Delegated or authorized activities. A Tribe or Intertribal
Consortium may use Performance Partnership Grant funds to carry out
EPA-delegated or EPA-authorized activities, such as permitting and
primary enforcement responsibility only if the Tribe or each member of
the Intertribal Consortium receives from the Regional Administrator the
delegations or authorizations to conduct such activities.
(b) Other program activities. Except for the limitation in
paragraph (a) of this section, a Tribe or Intertribal Consortium may
use Performance Partnership Grant funds for any activity that is
eligible under the environmental programs listed in Sec. 35.501(a) of
this subpart, as determined by the Regional Administrator. If an
applicant proposes a Performance Partnership Grant work plan that
differs significantly from any of the proposed work plans approved for
funding that the applicant now proposes to move into a Performance
Partnership Grant, the Regional Administrator must consult with the
appropriate National Program Managers before agreeing to the
Performance Partnership Grant work plan. National Program Managers may
expressly waive or modify this requirement for consultation in national
program guidance. National Program Managers may also define in national
program guidance ``significant'' deviations from a work plan submitted
with a Tribe's or a Consortium's application for funds.
Sec. 35.536 Cost share requirements.
(a) The Performance Partnership Grant cost share shall be the sum
of the amounts required for each environmental program grant included
in the Performance Partnership Grant, as determined in accordance with
paragraphs (b) and (c) of this section, unless waived under paragraph
(d) of this section.
(b) For each environmental program grant included in the
Performance Partnership Grant that has a cost share of five percent or
less under the provisions of Secs. 35.540 through 35.718, the required
cost share shall be that identified in Secs. 35.540 through 35.718 of
this subpart.
(c) For each environmental program grant included in the
Performance Partnership Grant that has a cost share of greater than
five percent under the provisions of Secs. 35.540 through 35.718 of
this subpart, the required cost share shall be five percent of the
allowable cost of the work plan budget for that program. However, after
the first two years in which a Tribe or Intertribal Consortium receives
a Performance Partnership Grant, the Regional Administrator must
determine through objective assessment whether the Tribe or the members
of an Intertribal Consortium meet socio-economic indicators that
demonstrate the ability of the Tribe or the Intertribal Consortium to
provide a cost share greater than five percent. If the regional
Administrator determines that the Tribe or the members of Intertribal
Consortium meets such indicators, then
[[Page 40097]]
he or she shall increase the required cost share up to a maximum of 10
percent of the allowable cost of the work plan budget.
(d) The Regional Administrator may waive the cost share required
under this section upon request of the Tribe or Intertribal Consortium,
if he or she determines, based on an objective assessment of socio-
economic indicators, that meeting the cost share would impose undue
hardship.
Sec. 35.537 Application requirements.
An application for a Performance Partnership Grant must contain:
(a) A list of the environmental programs and the amount of funds
from each program to be combined in the Performance Partnership Grant;
(b) A consolidated budget;
(c) A consolidated work plan that addresses each program being
combined in the grant and which meets the requirements of Sec. 35.507.
Sec. 35.538 Project period.
If the projected completion date for a work plan commitment funded
under an environmental program grant that is added to a Performance
Partnership Grant extends beyond the end of the project period for the
Performance Partnership Grant, the Regional Administrator and the
recipient will agree in writing as to how and when the work plan
commitment will be completed.
Indian Environmental General Assistance Program (GAP)
Sec. 35.540 Purpose.
(a) Purpose of section. Sections 35.540 through 35.547 govern
grants to Tribes and Intertribal Consortia under the Indian
Environmental General Assistance Program Act of 1992 (42 U.S.C. 4368b.)
(b) Purpose of program. Indian Environmental General Assistance
Program grants are awarded to build capacity to administer
environmental programs on Indian lands by providing general assistance
to plan, develop, and establish the capability to implement
environmental protection programs in Indian country.
Sec. 35.542 Definitions.
Tribe. Any Indian Tribe, band, nation, or other organized group or
community including any Alaska Native village or regional or village
corporation (as defined in, or established pursuant to, the Alaska
Native Claims Settlement Act (43 U.S.C.A. 1601, et seq.)), which is
recognized as eligible for the special services provided by the United
States to Indians because of their status as Indians.
Sec. 35.543 Eligible recipients.
The following entities are eligible to receive grants under this
program:
(a) Tribes and
(b) Intertribal Consortia as provided in Sec. 35.504.
Sec. 35.545 Eligible activities.
Tribes and Intertribal Consortia may use General Assistance Program
funds for planning, developing, and establishing capability to
implement environmental protection programs and to develop and
implement solid and hazardous waste programs on Indian lands.
Sec. 35.548 Award limitations.
(a) Each grant awarded under the General Assistance Program shall
be not less than $75,000. This limitation does not apply to additional
funds that may become available for award to the same Tribe or
Intertribal Consortium.
(b) The Regional Administrator shall not award a grant to a single
Tribe or Intertribal Consortium of more than 10 percent of the total
annual funds appropriated under the Act.
(c) The project period of a General Assistance Program award may
not exceed four years.
(d) No award under this program shall result in reduction of total
EPA grants for environmental programs to the recipient.
Air Pollution Control (Section 105)
Sec. 35.570 Purpose.
(a) Purpose of section. Sections 35.570 through 35.577 govern air
pollution control grants to Tribes (as defined in section 302(r) of the
Clean Air Act (CAA)) authorized under sections 105 and 301(d) of the
Act and Intertribal Consortia.
(b) Purpose of program. Air pollution control grants are awarded to
develop and administer programs that prevent and control air pollution
or implement national air quality standards in Indian country.
(c) Associated program regulations. Refer to 40 CFR parts 49, 50,
51, 52, 58, 60, 61, 62, and 81 for associated program regulations.
Sec. 35.572 Definitions.
In addition to the definitions in Sec. 35.502, the following
definitions apply to the Clean Air Act's section 105 grant program:
Nonrecurrent expenditures are those expenditures which are shown by
the recipient to be of a nonrepetitive, unusual, or singular nature
such as would not reasonably be expected to recur in the foreseeable
future. Costs categorized as nonrecurrent must be approved in the grant
agreement or an amendment thereto.
Recurrent expenditures are those expenses associated with the
activities of a continuing environmental program. All expenditures are
considered recurrent unless justified by the applicant as nonrecurrent
and approved as such in the grant award or an amendment thereto.
Sec. 35.573 Eligible tribe.
(a) A Tribe is eligible to receive financial assistance if it has
demonstrated eligibility to be treated as a State under 40 CFR 49.6. An
Intertribal Consortium consisting of Tribes that have demonstrated
eligibility to be treated as States under 40 CFR 49.6 is eligible for
financial assistance under this paragraph.
(b) A Tribe that has not made a demonstration under 40 CFR 49.6 is
eligible for financial assistance under sections 105 and 302(b)(5) of
the Clean Air Act. An Intertribal Consortium consisting of Tribes that
have not demonstrated eligibility to be treated as States under 40 CFR
49.6 is eligible for financial assistance under this paragraph.
Sec. 35.575 Maximum Federal share.
(a) For Tribes and Intertribal Consortia eligible under
Sec. 35.573(a), the Regional Administrator may provide financial
assistance in an amount up to 95 percent of the approved costs of
planning, developing, establishing, or improving an air pollution
control program, and up to 95 percent of the approved costs of
maintaining that program. After two years from the date of each Tribe's
or Intertribal Consortium's initial grant award, the Regional
Administrator will reduce the maximum federal share to 90 percent if
the Regional Administrator determines that the Tribe or each member of
the Intertribal Consortium meets certain economic indicators that would
provide an objective assessment of the Tribe's or each of the
Intertribal Consortiums member's ability to increase its share. For a
Tribe or Intertribal Consortium eligible under Sec. 35.573(a), the
Regional Administrator may increase the maximum federal share if the
Tribe or Intertribal Consortium can demonstrate in writing to the
satisfaction of the Regional Administrator that fiscal circumstances
within the Tribe or within the member Tribes of the Intertribal
Consortium are constrained to such an extent that fulfilling the
[[Page 40098]]
match requirement would impose undue hardship.
(b) For Tribes and Intertribal Consortia eligible under
Sec. .573(b), the Regional Administrator may provide financial
assistance in an amount up to 60 percent of the approved costs of
planning, developing, establishing, or improving an air pollution
control program, and up to 60 percent of the approved costs of
maintaining that program.
Sec. 35.576 Maintenance of effort.
(a) For Tribes and Intertribal Consortia that are eligible for
financial assistance under Sec. 35.573(b) of this subpart, the Tribe or
each of the Intertribal Consortium's members must expend annually, for
recurrent section 105 program expenditures, an amount of non-federal
funds at least equal to such expenditures during the preceding fiscal
year.
(b) In order to award grants in a timely manner each fiscal year,
the Regional Administrator shall compare a Tribe's or each of the
Intertribal Consortiums member's proposed expenditure level, as
detailed in the grant application, to its expenditure level in the
second preceding fiscal year.
(c) The Regional Administrator may grant an exception to
Sec. 35.576(a) if, after notice and opportunity for a public hearing,
the Regional Administrator determines that the reduction is
attributable to a non-selective reduction of all the Tribe's or each of
the Intertribal Consortiums member's programs.
(d) The Regional Administrator will not award section 105 funds
unless the applicant provides assurance that the grant will not
supplant non-federal funds that would otherwise be available for
maintaining the section 105 program.
Sec. 35.578 Award limitation.
The Regional Administrator will not disapprove an application for,
or terminate or annul an award of, financial assistance under
Sec. 35.573 without prior notice and opportunity for a public hearing
within the appropriate jurisdiction or, where more than one area is
affected, within one of the affected areas within the jurisdiction
Water Pollution Control (Sections 106 and 518)
Sec. 35.580 Purpose.
(a) Purpose of section. Sections 35.580 through 35.588 govern water
pollution control grants to eligible Tribes and Intertribal Consortia
(as defined in Sec. 35.502) authorized under sections 106 and 518 of
the Clean Water Act.
(b) Purpose of program. Water pollution control grants are awarded
to assist Tribes and Intertribal Consortia in administering programs
for the prevention, reduction, and elimination of water pollution,
including programs for the development and implementation of ground-
water protection strategies.
(c) Associated program requirements. Program requirements for water
quality planning and management activities are provided in 40 CFR part
130.
Sec. 35.582 Definitions.
Federal Indian reservation. All lands within the limits of any
Indian reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation.
Tribe. Any Indian Tribe, band, group, or community recognized by
the Secretary of the Interior, exercising governmental authority over a
federal Indian reservation.
Sec. 35.583 Eligible recipients.
A Tribe, including an Intertribal Consortium, is eligible to
receive a section 106 grant if EPA has determined that the Indian Tribe
or each member of the Intertribal Consortium meets the requirements for
treatment in a manner similar to a State under section 518(e) of the
Clean Water Act. (See 40 CFR 130.6(d))
Sec. 35.585 Maximum Federal share.
(a) The Regional Administrator may provide up to 95 percent of the
approved work plan costs for Tribes or Intertribal Consortia
establishing a section 106 program. Work plan costs include costs of
planning, developing, establishing, improving or maintaining a water
pollution control program.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or within each Tribe that is a member of
an Intertribal Consortium are constrained to such an extent that
fulfilling the match requirement would impose undue hardship.
Sec. 35.588 Award limitations.
(a) The Regional Administrator will only award section 106 funds or
reprogram section 106 funds to a Tribe or Intertribal Consortium if:
(1) All monitoring and analysis activities performed by the Tribe
or Intertribal Consortium meets the applicable quality assurance and
quality control requirements in 40 CFR 31.45.
(2) The Tribe or each member of the Intertribal Consortium has
emergency power authority comparable to that in section 504 of the
Clean Water Act and adequate contingency plans to implement such
authority.
(3) EPA has not assumed enforcement as defined in section 309(a)(2)
of the Clean Water Act in the Tribe's or any Intertribal Consortium
member's jurisdiction.
(4) The Tribe or Intertribal Consortium agrees to include a
discussion of how the work performed under section 106 addressed water
quality problems on Tribal lands in the annual report required under
Sec. 35.515(d).
(5) After an initial award of section 106 funds, the Tribe or
Intertribal Consortium shows satisfactory progress in meeting its
negotiated work plan commitments.
(b) A Tribe or Intertribal Consortium is eligible to receive a
section 106 grant or section 106 grant funds even if the Tribe or each
of the members of an Intertribal Consortium does not meet the
requirements of section 106(e)(1) and 106(f)(1) of the Clean Water Act.
Water Quality Cooperative Agreements (Section 104(b)(3))
Sec. 35.600 Purpose.
(a) Purpose of section. Sections 35.600 through 35.604 govern Water
Quality Cooperative Agreements to Tribes and Intertribal Consortia
authorized under section 104(b)(3) of the Clean Water Act. These
sections do not govern Water Quality Cooperative Agreements under
section 104(b)(3) to organizations that do not meet the definitions of
Tribe or Intertribal Consortium in Sec. 35.502; such cooperative
agreements generally are subject to the uniform administrative
requirements for grants at 40 CFR part 30.
(b) Purpose of program. EPA awards Water Quality Cooperative
Agreements for investigations, experiments, training, demonstrations,
surveys, and studies relating to the causes, effects, extent,
prevention, reduction, and elimination of water pollution. EPA issues
guidance each year advising EPA regions and headquarters regarding
appropriate priorities for funding for this program. This guidance may
include such focus areas as National Pollutant Discharge Elimination
System watershed permitting, urban wet weather programs, or innovative
pretreatment programs and biosolids projects.
[[Page 40099]]
Sec. 35.603 Competitive process.
EPA will award water quality cooperative agreement funds through a
competitive process in accordance with national program guidance. After
the competitive process is complete, the recipient can, at its
discretion, accept the award as a separate cooperative agreement or add
the funds to a Performance Partnership Grant. If the recipient chooses
to add the funds to a Performance Partnership Grant, the water quality
work plan commitments must be included in the Performance Partnership
Grant work plan.
Sec. 35.604 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of
approved work plan costs.
Wetlands Development Grant Program (Section 104(b)(3))
Sec. 35.610 Purpose.
(a) Purpose of section. Sections 35.610 through 35.615 govern
wetlands development grants to Tribes and Intertribal Consortia under
section 104(b)(3) of the Clean Water Act. These sections do not govern
wetlands development grants under section 104(b)(3) to organizations
that do not meet the definitions of Tribe or Intertribal Consortium in
Sec. 35.502; such grants generally are subject to the uniform
administrative requirements for grants at 40 CFR part 30.
(b) Purpose of program. EPA awards wetlands development grants to
assist in the development of new, or the refinement of existing,
wetlands protection and management programs.
Sec. 35.613 Competitive process.
Wetlands development grants are awarded on a competitive basis. EPA
annually establishes a deadline for receipt of grant applications. EPA
reviews applications and decides which grant projects to fund based on
criteria established by EPA. After the competitive process is complete,
the recipient can, at its discretion, accept the award as a wetlands
development program grant or add the funds to a Performance Partnership
Grant. If the recipient chooses to add the funds to a Performance
Partnership Grant, the wetlands development program work plan
commitments must be included in the Performance Partnership Grant work
plan.
Sec. 35.615 Maximum Federal share.
EPA may provide up to 75 percent of the approved work plan costs
for the development or refinement of a wetlands protection and
management program.
Nonpoint Source Management Grants (Sections 319(h) and 518(f))
Sec. 35.630 Purpose.
(a) Purpose of section. Sections 35.630 through 35.638 govern
nonpoint source management grants to eligible Tribes and Intertribal
Consortia under sections 319(h) and 518(f) of the Clean Water Act.
(b) Purpose of program. Nonpoint source management grants may be
awarded for the implementation of EPA-approved nonpoint source
management programs, including ground-water quality protection
activities that will advance the implementation of a comprehensive
approved nonpoint source management program.
Sec. 35.632 Definition.
Tribe. Any Indian Tribe, band, group, or community recognized by
the Secretary of the Interior and exercising governmental authority
over a federal Indian reservation.
Sec. 35.633 Eligibility requirements.
A Tribe or Intertribal Consortium is eligible to receive a Nonpoint
Source Management grant if EPA has determined that the Tribe or each
member of the Intertribal Consortium meets the requirements for
treatment in a manner similar to a State under section 518(e) of the
Clean Water Act. (See 40 CFR 130.6(d).)
Sec. 35.635 Maximum Federal share.
(a) The Regional Administrator may provide up to 60 percent of the
approved work plan costs in any fiscal year. The non-Federal share of
costs must be provided from non-Federal sources.
(b) The Regional Administrator may increase the maximum Federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or within each Tribe that is a member of
the Intertribal Consortium are constrained to such an extent that
fulfilling the match requirement would impose undue hardship. In no
case shall the Federal share be greater than 90 percent.
Sec. 35.636 Maintenance of effort.
To receive funds under section 319 in any fiscal year, a Tribe or
each member of an Intertribal Consortium must agree that the Tribe or
each member of the Intertribal Consortium will maintain its aggregate
expenditures from all other sources for programs for controlling
nonpoint source pollution and improving the quality of the Tribe's or
the Intertribal Consortiums members' waters at or above the average
level of such expenditures in Fiscal Years 1985 and 1986.
Sec. 35.638 Award limitations.
(a) Available funds. EPA may use no more than the amount authorized
under the Clean Water Act section 319 and 518(f) for making grants to
Tribes or Intertribal Consortia.
(b) Financial assistance to persons. Tribes or Intertribal
Consortia may use funds for financial assistance to persons only to the
extent that such assistance is related to the cost of demonstration
projects.
(c) Administrative costs. Administrative costs in the form of
salaries, overhead, or indirect costs for services provided and charged
against activities and programs carried out with these funds shall not
exceed 10 percent of the funds the Tribe or Intertribal Consortium
receives in any fiscal year. The cost of implementing enforcement and
regulatory activities, education, training, technical assistance,
demonstration projects, and technology transfer programs are not
subject to this limitation.
(d) The Regional Administrator will not award section 319(h) funds
to any Tribe or Intertribal Consortium unless:
(1) Approved assessment report. EPA has approved the Tribes' or
each member of the Intertribal Consortium's Assessment Report on
nonpoint sources, prepared in accordance with section 319(a) of the
Act;
(2) Approved Tribe or Intertribal Consortium management program.
EPA has approved the Tribes' or each member of the Intertribal
Consortium's management program for nonpoint sources, prepared in
accordance with section 319(b) of the Act;
(3) Progress on reducing pollutant loadings. The Regional
Administrator determines, for a Tribe or Intertribal Consortium that
received section 319 funds in the preceding fiscal year, that the Tribe
or each member of the Intertribal Consortium made satisfactory progress
in meeting its schedule for achieving implementation of best management
practices to reduce pollutant loadings from categories of nonpoint
sources, or particular nonpoint sources, designated in the Tribe's or
each member of the Intertribal Consortium's management program. The
Tribe or each member of the Intertribal Consortium must develop this
schedule in accordance with section 319(b)(2) of the Act;
(4) Activity and output descriptions. The work plan briefly
describes each significant category of nonpoint source
[[Page 40100]]
activity and the work plan commitments to be produced for each
category; and
(5) Significant watershed projects. For watershed projects whose
costs exceed $50,000, the work plan contains:
(i) A brief synopsis of the watershed implementation plan outlining
the problems to be addressed;
(ii) The project's goals and objectives; and
(iii) The performance measures and environmental indicators that
will be used to evaluate the results of the project.
Pesticide Cooperative Enforcement (Section 23(a)(1))
Sec. 35.640 Purpose.
(a) Purpose of section. Sections 35.640 through 35.645 govern
cooperative agreements to Tribes and Intertribal Consortia authorized
under section 23(a)(1) of the Federal Insecticide, Fungicide, and
Rodenticide Act for pesticide enforcement.
(b) Purpose of program. Cooperative agreements are awarded to
assist Tribes and Intertribal Consortia in implementing pesticide
enforcement programs.
(c) Associated program regulations. Refer to 19 CFR part 12 and 40
CFR parts 150 through 189 for associated regulations.
Sec. 35.641 Eligible recipients.
Eligible recipients of pesticide enforcement cooperative agreements
are Tribes and Intertribal Consortia.
Sec. 35.642 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Sec. 35.645 Basis for allotment.
The Administrator allots pesticide enforcement cooperative
agreement funds to each regional office. Regional offices award funds
to Tribes and Intertribal Consortia based on their programmatic needs
and applicable EPA guidance.
Pesticide Applicator Certification and Training (Section 23(a)(2))
Sec. 35.646 Purpose.
(a) Purpose of section. Sections 35.646 through 35.649 govern
pesticide applicator certification and training grants to Tribes and
Intertribal Consortia under section 23(a)(2) of the Federal
Insecticide, Fungicide, and Rodenticide Act.
(b) Purpose of program. Pesticide applicator certification and
training grants are awarded to train and certify restricted use
pesticide applicators.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 162, 170, and 171.
Sec. 35.649 Maximum Federal share.
The Regional Administrator may provide up to 50 percent of the
approved work plan costs.
Pesticide Program Implementation (Section 23(a)(1))
Sec. 35.650 Purpose.
(a) Purpose of section. Sections 35.650 through 35.659 govern
cooperative agreements to Tribes and Intertribal Consortia for
pesticide enforcement and compliance programs under section 23(a)(1) of
the Federal Insecticide, Fungicide, and Rodenticide Act.
(b) Purpose of program. Cooperative agreements are awarded to
assist Tribes and Intertribal Consortia to develop and implement
pesticide programs, including programs that protect farm workers,
ground water, and endangered species from pesticide risks and other
pesticide management programs designated by the Administrator.
(c) Program regulations. Refer to 40 CFR parts 150 through 189 and
19 CFR part 12 for associated regulations.
Sec. 35.653 Eligible recipients.
Eligible recipients of pesticide program implementation cooperative
agreements are Tribes and Intertribal Consortia.
Sec. 35.655 Basis for allotment.
The Administrator allots pesticide program implementation
cooperative agreement funds to each regional office. Regional offices
award funds to Tribes and Intertribal Consortia based on their
programmatic needs and applicable EPA guidance.
Sec. 35.659 Maximum Federal share.
The Regional Administrator may provide up to 100 percent of the
approved work plan costs.
Pollution Prevention Incentive Grants (Section 6605)
Sec. 35.660 Purpose.
(a) Purpose of section. Sections 35.660 through 35.669 govern
grants to Tribes and Intertribal Consortia under section 6605 of the
Pollution Prevention Act.
(b) Purpose of program. Pollution Prevention Incentive Grants are
awarded to promote the use of source reduction techniques by
businesses.
Sec. 35.661 Competitive process.
EPA regions award pollution prevention grant funds to Tribes and
Intertribal Consortia through a competitive process in accordance with
EPA guidance. When evaluating a Tribe's or Intertribal Consortium's
application, EPA must consider, among other criteria, whether the
proposed program would:
(a) Make specific technical assistance available to businesses
seeking information about source reduction opportunities, including
funding for experts to provide onsite technical advice to businesses
seeking assistance in the development of source reduction plans;
(b) Target assistance to businesses for whom lack of information is
an impediment to source reduction; and
(c) Provide training in source reduction techniques. Such training
may be provided through local engineering schools or other appropriate
means.
Sec. 35.662 Definitions.
The following definition applies to the Pollution Prevention
Incentive grant program and to Secs. 35.660 through 35.669:
(a) Pollution prevention/source reduction is any practice that:
(1) Reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal;
(2) Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants; and
(3) Reduces or eliminates the creation of pollutants through:
(i) Increased efficiency in the use of raw materials, energy,
water, or other resources; or
(ii) Protection of national resources by conservation.
(b) Pollution prevention/source reduction does not include any
practice which alters the physical, chemical, or biological
characteristics or the volume of a hazardous substance, pollutant, or
contaminant through a process or activity which itself is not integral
to and necessary for the production of a product or the providing of a
service.
Sec. 35.663 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a pollution prevention incentive
grant if the Tribe or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
[[Page 40101]]
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraph (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the pollution prevention incentive grants program
required by paragraph (b)(3) and (4) of this section.
Sec. 35.668 Award limitations.
If the Pollution Prevention Incentive grant funds are included in a
Performance Partnership Grant the Pollution Prevention Incentive work
plan commitments must be included in the Performance Partnership Grant
work plan.
Sec. 35.669 Maximum Federal share.
The Federal share for Pollution Prevention Incentive Grants will
not exceed 50 percent of the allowable Tribe and Intertribal Consortium
Pollution Prevention Incentives project cost.
Public Water System Supervision (Section 1443(a) and Section 1451)
Sec. 35.670 Purpose.
(a) Purpose of section. Sections 35. 670 through 35.678 govern
public water system supervision grants to Tribes and Intertribal
Consortia authorized under sections 1443(a) and 1451 of the Safe
Drinking Water Act.
(b) Purpose of program. Public water system supervision grants are
awarded to carry out public water system supervision programs including
implementation and enforcement of the requirements of the Act that
apply to public water systems.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 141, 142, and 143.
Sec. 35.672 Definition.
Tribe. Any Indian Tribe having a federally recognized governing
body carrying out substantial governmental duties and powers over any
area.
Sec. 35.673 Annual amount reserved by EPA.
Each year, EPA shall reserve up to seven percent of the public
water system supervision funds for grants to Tribes and Intertribal
Consortia under section 1443(a).
Sec. 35.675 Maximum Federal share.
(a) The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or Consortium are constrained to such an
extent that fulfilling the match requirement would impose undue
hardship, except that the federal share shall not be greater than 90
percent.
Sec. 35.676 Eligible recipients.
A Tribe or Intertribal Consortium is eligible to apply for a public
water system supervision grant if the Tribe or each member of the
Intertribal Consortium meets the following criteria:
(a) The Tribe or each member of the Intertribal Consortium is
recognized by the Secretary of the Interior;
(b) The Tribe or each member of the Intertribal Consortium has a
governing body carrying out substantial governmental duties and powers
over any area;
(c) The functions to be exercised under the grant are within the
area of the Tribal government's jurisdiction; and
(d) The Tribe or each member of the Intertribal Consortium is
reasonably expected to be capable, in the Regional Administrator's
judgment, of carrying out the functions to be exercised under the
grant.
Sec. 35.678 Award limitations.
(a) Initial grant. The Regional Administrator will not make an
initial award unless the Tribe or each member of the Intertribal
Consortium has:
(1) Met the requirements of 40 CFR part 142, subpart H (treatment
in a manner similar to a State);
(2) Established an approved public water system supervision program
or agrees to establish an approvable program within three years of the
initial award and assumed primary enforcement responsibility within
this period; and
(3) Agreed to use at least one year of the grant funding to
demonstrate program capability to implement the requirements found in
40 CFR 142.10.
(b) Subsequent grants. The Regional Administrator will not make a
subsequent grant, after the initial award, unless the Tribe or each
member of the Intertribal Consortia can demonstrate reasonable progress
towards assuming primary enforcement responsibility within the three-
year period after initial award. After the three-year period expires,
the Regional Administrator will not award section 1443(a) funds to an
Indian Tribe or Intertribal Consortium unless the Tribe or each member
of the Intertribal Consortia has assumed primary enforcement
responsibility for the public water system supervision program.
Underground Water Source Protection (Section 1443(b))
Sec. 35.680 Purpose.
(a) Purpose of section. Sections 35.680 through 35.688 govern
underground water source protection grants to Tribes and Intertribal
Consortia under section 1443(b) of the Safe Drinking Water Act.
(b) Purpose of program. The Underground Water Source Protection
grants are awarded to carry out underground water source protection
programs.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR parts 124, 144, 145, 146, and 147.
Sec. 35.682 Definition.
Tribe. Any Indian Tribe having a federally recognized governing
body carrying out substantial governmental duties and powers over any
area.
Sec. 35.683 Annual amount reserved by EPA.
EPA shall reserve up to five percent of the underground water
source protection funds each year for underground water source
protection grants to Tribes under section 1443(b) of the Safe Drinking
Water Act.
Sec. 35.685 Maximum Federal share.
(a) The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
(b) The Regional Administrator may increase the maximum federal
share if the Tribe or Intertribal Consortium can demonstrate in writing
to the satisfaction of the Regional Administrator that fiscal
circumstances within the Tribe or Consortium are constrained to such an
extent that fulfilling the match requirement would impose undue
hardship, except that the Federal share shall not be greater than 90
percent.
Sec. 35.686 Eligible recipients.
A Tribe or Intertribal Consortium is eligible to apply for an
underground water source protection grant if the Tribe or each member
of the Intertribal Consortium meets the following criteria:
(a) The Tribe or each member of the Intertribal Consortium is
recognized by the Secretary of the Interior;
(b) The Tribe or each member of the Intertribal Consortium has a
governing body carrying out substantial governmental duties and powers
over any area;
[[Page 40102]]
(c) The functions to be exercised under the grant are within the
area of the Tribal government's jurisdiction; and
(d) The Tribe or each member of the Intertribal Consortium is
reasonably expected to be capable, in the Regional Administrator's
judgment, of carrying out the functions to be exercised under the
grant.
Sec. 35.688 Award limitations.
(a) Initial grants. The Regional Administrator will not make an
initial award unless the Tribe or each member of the Intertribal
Consortium has:
(1) Met the requirements of 40 CFR part 145, subpart E (treatment
in a manner similar to a State); and
(2) Established an approved underground water source protection
program or agrees to establish an approvable program within four years
of the initial award.
(b) Subsequent grants. The Regional Administrator will not make a
subsequent grant, after the initial award, unless the Tribe can
demonstrate reasonable progress towards assuming primary enforcement
responsibility within the four-year period after initial award. After
the four-year period expires, the Regional Administrator shall not
award section 1443(b) funds to an Indian Tribe unless the Tribe has
assumed primary enforcement responsibility for the underground water
source protection program.
Lead-Based Paint Program (Section 404(g))
Sec. 35.690 Purpose.
(a) Purpose of section. Sections 35.690 through 35.693 govern
grants to Tribes and Intertribal Consortia under section 404(g) for the
Toxic Substances Control Act .
(b) Purpose of program. Lead-Based Paint Program grants are awarded
to develop and, if the recipient is authorized, to carry out lead-based
paint activities programs to ensure that individuals employed in lead-
based paint activities are properly trained; that training programs are
accredited; and that contractors employed in such activities are
certified.
(c) Associated program regulations. Associated program regulations
are found in 40 CFR part 745.
Sec. 35.691 Funding coordination.
Recipients must use the Lead-Based Paint program funding in a way
that complements any related assistance they receive from other federal
sources for lead-based paint activities.
Sec. 35.693 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a lead-based paint program grant if
the Tribe or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraph (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the lead-based paint program required by
paragraph (b)(3) and (4) of this section.
Indoor Radon Grants (Section 306)
Sec. 35.700 Purpose.
(a) Purpose of section. Sections 35.700 through 35.708 govern
Indoor Radon Grants to Tribes and Intertribal Consortia under section
306 of the Toxic Substances Control Act.
(b) Purpose of program. (1) Indoor radon grants are awarded to
assist Tribes and Intertribal Consortia with the development and
implementation of programs that assess and mitigate radon and that aim
at reducing radon health risks. Indoor radon grant funds may be used
for the following eligible activities.
(i) Survey of radon levels, including special surveys of geographic
areas or classes of buildings (such as public buildings, school
buildings, high-risk residential construction types);
(ii) Development of public information and education materials
concerning radon assessment, mitigation, and control programs;
(iii) Implementation of programs to control radon on existing and
new structures;
(iv) Purchase, by the Tribe or Intertribal Consortium of radon
measurement equipment and devices;
(v) Purchase and maintenance of analytical equipment connected to
radon measurement and analysis, including costs of calibration of such
equipment;
(vi) Payment of costs of Environmental Protection Agency-approved
training programs related to radon for permanent Tribal employees;
(vii) Payment of general overhead and program administration costs;
(viii) Development of a data storage and management system for
information concerning radon occurrence, levels, and programs;
(ix) Payment of costs of demonstration of radon mitigation methods
and technologies as approved by EPA, including Tribal and Intertribal
Consortia participation in the Environmental Protection Agency Home
Evaluation Program; and
(x) A toll-free radon hotline to provide information and technical
assistance.
(2) In implementing paragraphs (b)(1)(iv) and (ix) of this section,
a Tribe or Intertribal Consortia should make every effort, consistent
with the goals and successful operation of the Tribal radon program, to
give preference to low-income persons.
Sec. 35.702 Basis for allotment.
(a) The Regional Administrator will allot indoor radon grant funds
based on the criteria in EPA Guidance in accordance with section 306(d)
and (e) of the Toxic Substances Control Act.
(b) No Tribe or Intertribal Consortium may receive an indoor radon
grant in excess of 10 percent of the total appropriated amount made
available each fiscal year.
Sec. 35.703 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for an indoor radon grant if the Tribe
or each member of the Intertribal Consortium:
(1) Is recognized by the Secretary of Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that a Tribe has
met the prerequisites in paragraphs (a)(1) and (2) of this section for
another EPA program, the Tribe need provide only that information
unique to the radon grant program required by paragraphs (a)(3) and (4)
of this section.
Sec. 35.705 Maximum Federal share.
The Regional Administrator may provide Tribes and Intertribal
Consortia up to 75 percent of the approved costs for the development
and implementation of radon program activities incurred by the Tribe in
the first year of a grant to the Tribe or Consortium; 60 percent in the
second year; and 50 percent in the third and each year thereafter.
[[Page 40103]]
Sec. 35.708 Award limitations.
(a) The Regional Administrator shall consult with the Tribal agency
which has the primary responsibility for radon programs as designated
by the affected Tribe before including indoor funds in a Performance
Partnership Grant with another Tribal agency.
(b) No grant may be made in any fiscal year to a Tribe or
Intertribal Consortium which did not satisfactorily implement the
activities funded by the most recent grant awarded to the Tribe or
Intertribal Consortium for an indoor radon program.
(c) The costs of radon measurement equipment or devices (see
Sec. 35.820(b)(1)(iv)) and demonstration of radon mitigation, methods,
and technologies (see Sec. 35.820(b)(1)(ix)) shall not, in aggregate,
exceed 50 percent of a Tribe's or Intertribal Consortium's radon grant
award in a fiscal year.
(d) The costs of general overhead and program administration (see
Sec. 35.820(b)(1)(vii)) of an indoor radon grant shall not exceed 25
percent of the amount of a Tribe's or Intertribal Consortium's radon
grant in a fiscal year.
(e) A Tribe or Intertribal Consortium may use funds for financial
assistance to persons only to the extent such assistance is related to
demonstration projects or the purchase and analysis of radon
measurement devices.
(f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities,
including the results of radon surveys, mitigation demonstration
projects, and risk communication studies.
(g) Recipients must maintain and make available to the public, a
list of firms and individuals that have received a passing rating under
the EPA proficiency rating program under section 305(a)(2) of the Act.
(h) Recipients may not use radon program grant funds to cover the
costs of proficiency rating programs under section 305(a)(2) of the
Act.
Toxic Substances Compliance Monitoring (Section 28)
Sec. 35.710 Purpose.
(a) Purpose of section. Sections 35.710 through 35.715 govern Toxic
Substances Compliance Monitoring grants to Tribes and Intertribal
Consortia under section 28 of the Toxic Substances Control Act.
(b) Purpose of program. Toxic Substances Compliance Monitoring
grants are awarded to establish and operate compliance monitoring
programs to prevent or eliminate unreasonable risks to health or the
environment associated with chemical substances or mixtures on Tribal
lands with respect to which the Administrator is unable or not likely
to take action for their prevention or elimination.
(c) Associated program regulations. Refer to 40 CFR parts 700
through 799 for associated program regulations.
Sec. 35.712 Competitive process.
EPA will award Toxic Substances Control Act Compliance Monitoring
grants to Tribes or Intertribal Consortia through a competitive process
in accordance with national program guidance.
Sec. 35.713 Eligible recipients.
(a) The Regional Administrator will treat a Tribe or Intertribal
Consortium as eligible to apply for a Toxic Substances Compliance
Monitoring grant if the Tribe or each member of the Intertribal
Consortium:
(1) Is recognized by the Secretary of Interior;
(2) Has an existing government exercising substantial governmental
duties and powers;
(3) Has adequate authority to carry out the grant activities; and,
(4) Is reasonably expected to be capable, in the Regional
Administrator's judgment, of administering the grant program.
(b) If the Administrator has previously determined that an Indian
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this
section for another EPA program, the Tribe need provide only that
information unique to the Toxic Substances Compliance Monitoring grant
program required by paragraphs (a)(3) and (4) of this section.
Sec. 35.715 Maximum Federal share.
The Regional Administrator may provide up to 75 percent of the
approved work plan costs.
Sec. 35.718 Award limitation.
If the Toxic Substances Compliance Monitoring grant funds are
included in a Performance Partnership Grant, the toxic substances
compliance monitoring work plan commitments must be included in the
Performance Partnership Grant work plan.
[FR Doc. 99-17340 Filed 7-22-99; 8:45 am]
BILLING CODE 6560-50-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.