[Federal Register Volume 59, Number 56 (Wednesday, March 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6383]


[[Page Unknown]]

[Federal Register: March 23, 1994]


_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 123, 124, et al.




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

40 CFR Parts 123, 124, 131, 142, 144, 145, 233, and 501

[FRL-4852-1]

 
Indian Tribes: Eligibility of Indian Tribes for Program 
Authorization

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed amendments.

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SUMMARY: The Clean Water and Safe Drinking Water Acts contain 
provisions which authorize EPA to treat Indian tribes in substantially 
the same manner in which it treats states for purposes of various types 
of financial assistance and program authorization. This action proposes 
amendments to regulations addressing the role of Indian tribes under 
both Acts. The purpose of these proposed amendments is to make it 
easier for tribes to obtain EPA approval to assume the role Congress 
envisioned for them under these statutes.

DATES: EPA will accept comments on the proposed amendments in this 
package until May 23, 1994.

ADDRESSES: Comments must be mailed (in duplicate, if possible) to C. 
Marshall Cain, Office of Federal Activities (A-104), Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 20460.
    The docket for this rule and copies of the public documents 
submitted will be available for public inspection and copying at a 
reasonable fee at EPA Headquarters Library, Public Information 
Reference Unit, room 2904, 401 M Street, telephone (202) 260-5926.

FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office of Federal 
Activities, U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington DC 20460 at (202) 260-8792.

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:

I. Introduction.
II. Regulations Governing Eligibility of Indian Tribes.
    A. The Existing Process.
    1. Recognition and a Government.
    2. Jurisdiction and Capability.
    3. Comment Process.
    4. Subsequent Tribal Applications.
    B. Workgroup Examination of Process.
III. Revisions to the Process in Light of Statutory Requirements.
    A. Simplified Determination as To Recognition and Government.
    B. Case by Case Review of Jurisdiction and Capability.
    1. Simplified Jurisdictional Analysis.
    2. Capability.
IV. Summary of Revised Process.
V. Executive Order 12866.
VI. Regulatory Flexibility Act.
VII. Paperwork Reduction Act.

I. Introduction: Statutory and Regulatory Background

    Under its American Indian Policy, EPA works directly with tribal 
governments as ``sovereign entities with primary authority and 
responsibility for the reservation populace.'' At the time the Policy 
was adopted in 1984, the environmental statutes which EPA administers 
generally did not explicitly address the role of tribes in 
environmental management, but provided for a joint state and federal 
role in environmental management. Subsequently, three EPA regulatory 
statutes have been amended to address the tribal role specifically by 
authorizing EPA to treat tribes in a manner similar to that in which it 
treats states: the Clean Water Act (CWA), the Safe Drinking Water Act 
(SDWA), and the Clean Air Act (CAA).1
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    \1\In addition, the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA or ``Superfund''), which is 
primarily a response, rather than a regulatory statute, has also 
been amended to authorize EPA to treat tribal governments in 
substantially the same way it treats states with respect to selected 
provisions of the statute.
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    EPA recognizes that tribes are sovereign nations with a unique 
legal status and a relationship to the federal government that is 
significantly different than that of states. EPA believes that Congress 
did not intend to alter this when it authorized treatment of tribes 
``as States;'' rather, the purpose of the statutory amendments was to 
reflect an intent that, insofar as possible, tribes should assume a 
role in implementing the environmental statutes on tribal land 
comparable to the role states play on state land.
    All three regulatory statutes specify that, in order to receive 
such treatment, a tribe must be federally recognized and possess a 
governing body carrying out substantial duties and powers. 33 U.S.C. 
1377 (e), (h) (CWA); 42 U.S.C. 300j-11 (SDWA); 42 U.S.C. 7601(d) (CAA). 
In addition, although there are some variations in language among the 
three statutes, each requires that a tribe possess civil regulatory 
jurisdiction to carry out the functions it seeks to exercise.2 
Finally, all three require that a tribe be reasonably expected to be 
capable of carrying out those functions.
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    \2\Under the Clean Water Act, the tribe must propose to carry 
out functions that ``pertain to the management and protection of 
water resources which are held by an Indian tribe, held by the 
United States in trust for Indians, held by a member of an Indian 
tribe if such property interest is subject to a trust restriction on 
alienation, or otherwise within the borders of an Indian 
reservation.'' 33 U.S.C. 1377(e)(2). Under the Clean Air Act, ``the 
functions to be exercised by the Indian tribe (must) pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation or other areas within the tribe's 
jurisdiction.'' 42 U.S.C. 7601(d)(2)(B). Under the SDWA, the tribe 
must propose to exercise functions ``within the area of the Tribal 
Government's jurisdiction.'' 42 U.S.C. 300j-11 (b)(1)(B).
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    The Agency initially chose to implement provisions of the Clean 
Water and Safe Drinking Water Acts regarding Indian tribes by 
establishing a formal prequalification process under which tribes can 
seek eligibility under these statutes. This prequalification process 
has in the past been referred to as approval for ``treatment as a 
state'' (``TAS''). Tribes that obtain such approval then become 
eligible to apply for certain grants and program approvals available to 
states.3
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    \3\By contrast, the provision of CERCLA authorizing EPA to 
afford a tribal government ``substantially the same treatment as a 
State'' does not establish any specific criteria a tribe must meet 
to qualify for such treatment. 42 U.S.C. 9626. EPA has established, 
by regulation, the criteria of recognition, a government, and 
jurisdiction, but has not adopted a formal prequalification process 
under CERCLA. See 40 CFR 300.515(b). The Agency is developing 
regulations pertaining to the treatment of American Indian tribes 
under the Clean Air Act.
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II. Regulations Governing Eligibility of Indian Tribes

A. The Existing Process

    The Agency has promulgated five regulations that utilize the 
``TAS'' process to date: (1) Safe Drinking Water Act, National Drinking 
Water Regulations and Underground Injection Control Regulations for 
Indian Lands, 53 FR 37395 (September 26, 1988), codified at 40 CFR 
parts 35, 124, 141, 142, 143, 144, 145, and 146; (2) Indian Tribes: 
Water Quality Planning and Management, 54 FR 14353 (April 11, 1989), 
Comprehensive Construction Grant Regulation Revision, 55 FR 27092 (June 
29, 1990) (governing grant programs under the CWA), codified at 40 CFR 
parts 35 and 130; (3) Amendments to the Water Quality Standards 
Regulation that Pertain to Standards on Indian Reservations, 56 FR 
64876 (December 12, 1991), codified at 40 CFR part 131; (4) Clean Water 
Act, section 404 Tribal Regulations, 58 FR 8171 (February 11, 1993), 
codified at 40 CFR parts 232 and 233; and (5) Treatment of Indian 
Tribes as States for Purposes of sections 308, 309, 401, 402, and 405 
of the Clean Water Act (``NPDES'') rule, 58 FR 67966 (December 22, 
1993), codified at 40 CFR parts 122, 123, 124 and 501.
    Under all of these regulations, before a tribe can obtain financial 
assistance available to states or obtain approval to operate a program 
which states are authorized to operate on state lands, the tribe must 
first formally qualify for ``treatment as a state.'' To qualify, a 
tribe must submit an application establishing that it is federally 
recognized, has a governing body carrying out substantial duties and 
powers, and has adequate jurisdiction and capability to carry out the 
proposed activities. Once a tribe obtains ``TAS'' approval, it is 
eligible to apply for financial assistance and program approval.
1. Recognition and Government
    A tribe typically establishes recognition by showing its inclusion 
on the list of federally recognized Tribes published by the Secretary 
of the Interior in the Federal Register. A tribe establishes that it 
meets the governmental duties and powers requirement with a narrative 
statement describing the form of the tribal government and the types of 
functions it performs, and identifying the sources of the tribe's 
governmental authority.
2. Jurisdiction and Capability
    To establish jurisdiction under the CWA grant regulations, a tribe 
must submit a statement signed by a tribal legal official explaining 
the legal basis for the Tribe's regulatory authority over its water 
resources. The CWA grant regulations do not require that a tribe submit 
any specific materials to establish capability.
    The other regulations specify that a tribe must submit various 
specific documents to establish jurisdiction, including: a map or legal 
description of the area over which the tribe claims jurisdiction; a 
statement by a tribal legal official describing the basis, nature, and 
subject matter of the tribe's jurisdiction; copies of all documents 
supporting the jurisdictional assertions; and a description of the 
locations of the systems or sources the tribe proposes to regulate. 
Similarly, to establish capability a tribe must submit a narrative 
statement describing tribal capability to administer an effective 
program, and certain specific, listed materials in support of that 
statement.
3. Comment Process
    Upon receiving a ``TAS'' application under these regulations, EPA 
notifies all ``appropriate governmental entities,''4 as to the 
substance of and basis for the jurisdictional assertions in the 
application, and invites comment on those assertions. Where comments 
raise a competing or conflicting jurisdictional claim, the Agency must 
consult with the Department of the Interior before making a final 
decision on the tribe's application.
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    \4\The Agency defines this to include contiguous states, other 
tribes, and federal land agencies responsible for management of 
lands contiguous to the reservation. (Amendments to the Water 
Quality Standards Regulation that Pertain to Standards on Indian 
Reservations; Final Rule. 56 FR 64875, 64884 (December 12, 1991)). 
In response to public comments, EPA has considered, but decided 
against, providing interested political subdivisions of states, 
including local governments and water districts, the opportunity to 
comment on tribal jurisdictional assertions. Id.
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    In practice, this comment process has sometimes led to delays in 
the processing and approval of tribal applications. Indeed, it has 
proven to be the single portion of ``TAS'' review most responsible for 
delays. The comment process also has created a perception that states 
have an oversight role in EPA's treatment of Indian tribes, which some 
tribes find objectionable, particularly since tribes have typically not 
been asked to offer their views on the scope and extent of state 
jurisdiction.
4. Subsequent Tribal Applications
    The regulations require a separate ``treatment as a state'' 
application for each program for which the tribe seeks such treatment. 
However, after an initial approval, applications for each additional 
program need provide only that additional information unique to the 
additional program.

B. Workgroup Examination of Process

    The Agency's ``TAS'' prequalification process has proven to be 
burdensome, time-consuming and offensive to tribes. Accordingly, in 
1992 EPA established a working group to focus on ways of improving and 
simplifying that process. The Agency formally adopted the Workgroup's 
recommendations as Agency policy by Memorandum dated November 10, 1992. 
That Memorandum explicitly recognized that the policies it adopted 
would require amendments to existing regulations. The purpose of this 
regulation is to propose amendments to existing regulations under the 
Safe Drinking Water and Clean Water Acts in order to implement the new 
policy. To the extent possible, the Agency plans to use the same 
process in future regulations regarding determinations of tribal 
eligibility.

III. Revisions to the Process in Light of Statutory Requirements

    No statute compels the use of a formal ``TAS'' or other 
prequalification process separate from approval of the underlying 
request for a grant or program approval. The only requirements imposed 
by statute are that, to be eligible for financial assistance and/or 
program authorization, a tribe must be federally recognized, have a 
governing body carrying out substantial duties and powers, and have 
adequate jurisdiction and capability to carry out the proposed 
activities. Thus, EPA may authorize a tribal program or grant without 
formally designating the tribe as ``eligible for TAS,'' so long as the 
Agency establishes that the tribe meets applicable statutory 
requirements. In other words, the Agency can ensure compliance with 
statutory mandates without requiring tribes to undergo a discrete, 
formal process of seeking ``TAS'' approval.
    Accordingly, EPA is amending its regulations to eliminate ``TAS'' 
review as a separate step in the processing of a tribal application for 
a grant or for program approval. Under the new, simplified process, the 
Agency will ensure compliance with statutory requirements as an 
integral part of the process of reviewing grant or program approval 
applications. To the extent that this rule or preamble conflicts with 
the language of previous rules and preambles, the language herein shall 
be controlling. EPA will also, as far as possible, discontinue use of 
the term ``treatment as a state;'' however, since this phrase is 
included in several statutes, its continued use may sometimes be 
necessary.

A. Simplified Determination as to Recognition and Government

    As a general rule, the recognition and governmental requirements 
are essentially the same under the Clean Water and Safe Drinking Water 
Acts. The new process will reflect this by establishing identical 
requirements for making this showing under each statute. Moreover, the 
fact that a tribe has met the recognition or governmental functions 
requirement under either of the Water Acts will establish that it meets 
those requirements under both statutes. To facilitate review of tribal 
applications, EPA therefore requests that tribal applications inform 
EPA whether a tribe has been approved for ``TAS'' (under the old 
process) or deemed eligible to receive funding or authorization (under 
the revised process) for any other program.
    A tribe that has not done so may establish that it has been 
federally recognized by simply stating in its grant or program 
authorization application that it appears on the list of federally 
recognized tribes that the Secretary of the Interior publishes 
periodically in the Federal Register. If the tribe notifies EPA that it 
has been recognized but does not appear on this list because the list 
has not been updated, EPA will seek to verify the fact of recognition 
with the Department of the Interior.
    A tribe that has not yet made its initial governmental showing can 
do so by certifying that it has a government carrying out substantial 
governmental functions. A tribe will be able to make the required 
certification if it is currently performing governmental functions to 
promote the public health, safety, and welfare of its population. 
Examples of such functions include, but are not limited to, levying 
taxes, acquiring land by exercise of the power of eminent domain, and 
exercising police power. Such examples should be included in a 
narrative statement supporting the certification, (1) Describing the 
form of tribal government and the types of essential governmental 
functions currently performed, and (2) identifying the legal 
authorities for performing those functions (e.g., tribal constitutions 
or codes). It should be relatively easy for tribes to meet this 
requirement without submitting copies of specific documents unless 
requested to do so by the Agency.

B. Case-by-Case Review of Jurisdiction and Capability

    A tribe may have jurisdiction over, and capability to carry out, 
certain activities (e.g., protection of the quality of a particular 
lake for the Clean Lakes program under the Clean Water Act), but not 
others (e.g., waste management on a portion of the reservation far 
removed from any lakes). For this reason, EPA believes that the Agency 
must make a specific determination that a tribe has adequate 
jurisdictional authority and administrative and programmatic capability 
before it approves each tribal program. This will ensure that tribes 
meet the statutory requirements Congress has established as 
prerequisites to tribal eligibility for each particular program.
1. Simplified Jurisdictional Analysis
    The portion of the jurisdictional determination under which 
governments comment on tribal jurisdiction will be substantially 
altered under this rule. These changes are outlined below.
    For approvals of all Drinking Water regulatory programs and most 
Clean Water programs under existing regulations, EPA will not authorize 
a state to operate a program without determining that the state has 
adequate authority to carry out those actions required to run the 
program. See e.g. 40 CFR 142.10 (PWS), 145.24 (UIC). This applies also 
to a tribe seeking program approval, and ensures that a close analysis 
of the legal basis of a tribe's jurisdiction will occur before program 
authorization.
    Accordingly, a separate ``TAS'' jurisdictional review is not needed 
to verify that a tribe meets the statutory jurisdictional requirement, 
and is therefore proposed to be eliminated for all programs under the 
Safe Drinking Water Act, and for the Clean Water Act's 404 and NPDES 
programs. This change would have the effect only of eliminating 
duplicative requirements. In no case can a tribe receive program 
approval until the Agency has received full and adequate input 
concerning the scope and extent of the tribe's jurisdiction. Moreover, 
EPA would expect each tribe seeking program approval to provide a 
precise description of the physical extent and boundaries of the area 
for which it seeks regulatory authority. This description should 
ordinarily include a map and should identify the sources or systems to 
be regulated by the tribe.
    However, for the Water Quality Standards program, there is no 
review of tribal civil regulatory authority as part of the standards 
approval process under section 303(c) of the Clean Water Act. 
Accordingly, for that program, a comment process would be retained. 
However, the Agency wishes to clarify the operation of that process by 
reiterating that comments must be offered in a timely manner, and, 
further, by specifying that where no timely comments are offered, the 
Agency will conclude that there is no objection to the tribal 
applicant's jurisdictional assertion. Moreover, to raise a competing or 
conflicting claim a comment must clearly explain the substance, basis, 
and extent of its objections. Finally, when questions are raised 
concerning a tribe's jurisdiction, EPA may, in its discretion, seek 
additional information from the tribe or the commenting party, and may 
consult as it sees fit with other federal agencies prior to making a 
determination as to tribal jurisdictional authority, but is not 
required to do so. Henceforth, EPA would/will no longer be required, by 
regulation, to consult with the Department of the Interior.
    Finally, the Agency notes that certain disputes concerning tribal 
jurisdiction may be relevant to a tribe's authority to conduct 
activities and obtain program approval under several environmental 
statutes. For example, if a tribe and a state or another tribe disagree 
as to the boundary of a particular tribe's reservation, each time the 
tribe seeks to assert authority over the disputed area, the dispute 
will recur. The Agency recognizes that its determinations regarding 
tribal jurisdiction apply only to activities within the scope of EPA 
programs. However, it also believes that, once it makes a 
jurisdictional determination in response to a tribal application 
regarding any EPA program, it will ordinarily make the same 
determination for other programs unless a subsequent application raises 
different legal issues. Thus, for example, once the Agency has arrived 
at a position concerning a boundary dispute, it will not alter that 
position in the absence of significant new factual or legal 
information. By contrast, however, a determination that a tribe has 
inherent jurisdiction to regulate activities in one medium might not 
conclusively establish its jurisdiction over activities in another 
medium. See generally Discussion of inherent tribal authority in Water 
Quality Standards Regulation, 56 FR 64877-64879.
    Under the new approval process, as under the old, the Agency will 
continue to retain authority to limit its approval of a tribal 
application to those land areas where the tribe has demonstrated 
jurisdiction. This would allow EPA to approve the portion of a tribal 
application covering certain areas, while withholding approval of the 
portion of an application addressing those land areas where tribal 
authority has not been satisfactorily established. See, e.g., 53 FR 
37395, 37402 (September 26, 1988) (SDWA); 54 FR 14353, 14355 (April 11, 
1989) (Clean Water Act Grants); 54 FR 39097, 39102 (September 12, 1989) 
(Clean Water Act Water Quality Standards); 58 FR 8171, 8176 (February 
11, 1993) (Clean Water Act section 404); 58 FR 67966, 67972 (Clean 
Water Act NPDES) (December 22, 1993).
2. Capability
    EPA must continue to make a separate determination of tribal 
capability for each program for which it approves a tribe. However, the 
Safe Drinking Water Act, Water Quality Standards, section 404, and 
NPDES regulations would be amended to conform to the CWA grant 
regulations, which do not specifically prescribe the material a tribe 
must submit to establish capability. Ordinarily, the inquiry EPA will 
make into the capability of any applicant, tribal or state, for a grant 
or program approval would be sufficient to enable the Agency to 
determine whether a tribe meets the statutory capability requirement. 
See, e.g., 40 CFR part 31 (grant regulations applicable to states and 
tribes); 40 CFR 142.3 (Public Water System primary enforcement 
responsibility requirements at parts 141, 142 apply to tribes); 
145.1(h) (Underground Injection Control requirements of parts 124, 144, 
145, and 146 that apply to states generally apply to tribes).
    Nevertheless, EPA may request that the tribe provide a narrative 
statement or other documents showing that the tribe is capable of 
administering the program for which it is seeking approval. In 
evaluating tribal capability, EPA will consider: (1) The tribe's 
previous management experience; (2) existing environmental or public 
health programs administered by the tribe; (3) the mechanisms in place 
for carrying out the executive, legislative and judicial functions of 
the tribal government; (4) the relationship between regulated entities 
and the administrative agency of the tribal government which will be 
the regulator; and (5) the technical and administrative capabilities of 
the staff to administer and manage the program.
    EPA recognizes that certain tribes may not have substantial 
experience administering environmental programs; a lack of such 
experience will not preclude a tribe from demonstrating capability, so 
long as it shows that it has the necessary management and technical and 
related skills or submits a plan describing how it will acquire those 
skills.

IV. Summary of Revised Process

    Under the new process, tribes will continue to seek program 
approvals under the authority of statutes authorizing EPA to treat 
eligible tribes in a manner similar to that in which it treats states. 
For instance, tribes seeking approval of an NPDES or Wetlands permits 
program will comply with the applicable provisions of 40 CFR parts 123 
or 233. However, tribes will now generally be required to submit only a 
single application to demonstrate eligibility for the program approval, 
without the need for a separate application for ``TAS.'' EPA will 
verify that the tribe meets all statutory prerequisites for eligibility 
in the process of reviewing the single tribal application.
    EPA believes that the changes outlined in this notice will simplify 
and streamline the process of assessing tribal eligibility while still 
ensuring full compliance with all applicable statutes. The Agency 
expects that the new process will reduce the burdens and barriers to 
tribes of participating in environmental management.

V. Executive Order 12866

    OMB has reviewed this action under the terms of Executive Order 
12866.

VI. Regulatory Flexibility Act

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), EPA 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities because it merely revises 
existing procedural requirements for Indian tribes by making them 
simpler and less burdensome; Indian tribes are not considered small 
entities under this rulemaking for RFA purposes.

VII. Paperwork Reduction Act

    The proposed regulations contain no new or additional information 
collection activities and, therefore, no information collection request 
will be submitted to the Office of Management and Budget for review in 
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects

40 CFR Part 123

    Administrative practice and procedure, Confidential business 
information, Environmental protection, Hazardous substances, Indian 
lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Waste treatment and disposal, Water 
pollution control, Water supply.

40 CFR Part 124

    Administrative practice and procedure, Air pollution control, 
Environmental Protection, Hazardous substances, Indian lands, Reporting 
and recordkeeping requirements, Sewage disposal, Waste treatment and 
disposal, Water pollution control, Water supply.

40 CFR Part 131

    Environmental protection, Reporting and recordkeeping requirements, 
Water pollution control.

40 CFR Part 142

    Environmental protection, Administrative practice and procedure, 
Chemicals, Indians-lands, Radiation protection, Reporting and 
recordkeeping requirements, Water supply.

40 CFR Part 144

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Indians-lands, 
Reporting and recordkeeping requirements, Surety bonds, Water supply.

40 CFR Part 145

    Environmental protection, Indians-lands, Intergovernment relations, 
Penalties, Reporting and recordkeeping requirements, Water supply.

40 CFR Part 233

    Environmental protection, Administrative practice and procedure, 
Intergovernment relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 501

    Administrative practice and procedure, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements, Sewage disposal.


    Dated: March 10, 1994.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, 40 CFR parts 123, 124, 
131, 142, 144, 145, 233, and 501 are proposed to be amended as follows:

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

    Authority: Clean Water Act, 33 U.S.C. 1251 et. seq.


Sec. 123.1  [Amended]

    2. Section 123.1 (h) is amended by removing the phrase ``treated as 
a State.''


Sec. 123.2  [Amended]

    3. In Sec. 123.21 paragraph (a)(1) is amended by revising the 
phrase ``eligible for treatment as a state in accordance with 
Sec. 123.33(e)'' to read ``in accordance with Sec. 123.33(b)''.
    4. In Sec. 123.21 paragraph (b)(2) is amended by removing the 
phrase ``for treatment as a state'' both times they appear and by 
revising the text ``Sec. 123.33(e)'' to read ``Sec. 123.33(b)''.


Sec. 123.22  [Amended]

    5. In Sec. 123.22 paragraph (g) is amended by removing the phrase 
``for treatment as a state'' and by revising the text 
``Sec. 123.33(e)'' to read ``Sec. 123.33(b)''.


Sec. 123.31  [Amended]

    6. The heading of Sec. 123.31 is amended by revising the phrase 
``for treatment of Indian Tribes as States'' to read ``for eligibility 
of Indian Tribes.''
    7. In Sec. 123.31 paragraph (a) is amended by removing the phrase 
``a State for purposes of making the Tribe.''
    8. In Sec. 123.31 paragraph (a)(4) is amended by removing all 
language following ``in a manner consistent with the terms and purposes 
of the Act and applicable regulations, of an effective NPDES permit 
program.''


Sec. 123.32  [Amended]

    9. The heading of Sec. 123.32 is amended by removing ``for 
treatment as a State.''
    10. In Sec. 123.32 the introductory text is amended by removing the 
phrase ``for treatment as a state.''
    11. In Sec. 123.32 paragraph (b) introductory text is amended by 
revising the words ``This statement shall'' to read ``This statement 
should.''
    12. In Sec. 123.32 paragraph (c) is amended by revising the phrase 
``a copy of all documents'' to read ``copies of those documents'' and 
by revising the phrase ``support the Tribe's assertion'' to read ``the 
Tribe believes are relevant to its assertion.''
    13. In Sec. 123.32 paragraph (d) introductory text is amended by 
revising the phrase ``The statement shall include'' to read ``The 
statement should include.''
    14. In Sec. 123.32 paragraph (d)(1) is amended by revising the 
words ``including, but not limited to,'' to read ``which may include.''
    15. In Sec. 123.32 paragraph (e) is amended by revising the phrase 
``a Tribal request for treatment as a State'' to read ``a Tribe's 
eligibility.''
    16. In Sec. 123.32 paragraph (f) is revised to read as follows:


Sec. 123.32  Request by an Indian Tribe for a determination of 
eligibility.

* * * * *
    (f) If the Administrator or his or her delegatee has previously 
determined that a Tribe has met the prerequisites that make it eligible 
to assume a role similar to that of a state as provided by statute 
under the Safe Drinking Water Act, the Clean Water Act, or the Clean 
Air Act, then that Tribe need provide only that information unique to 
the NPDES program which is requested by the Regional Administrator.


Sec. 123.33  [Amended]

    17. The heading of Sec. 123.33 is amended by removing the phrase 
``for treatment as a state.''
    18. In Sec. 123.33 paragraph (a) is amended by removing the phrase 
``for treatment as a State.''
    19. In Sec. 123.33 paragraphs (b), (c), (d), and (e) are removed 
and paragraph (f) is redesignated as paragraph (b).

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as 
follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; 
Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 
7401 et seq.


Sec. 124.2  [Amended]

    2. In Sec. 124.2 the definition of ``State'' is amended by revising 
the phrase ``an Indian Tribe treated as a State'' to read ``an Indian 
Tribe that meets the statutory criteria which authorize EPA to treat 
the Tribe in a manner similar to that in which it treats a State''.


Sec. 124.5  [Amended]

    3. In Sec. 124.51 paragraph (c) is amended by revising the phrase 
``is qualified for treatment as a State'' to read ``meets the statutory 
criteria which authorize EPA to treat the Tribe in a manner similar to 
that in which it treats a State'' and by revising the phrase ``is 
likewise qualified for treatment as a State'' to read ``is likewise 
qualified for such treatment.''

PART 131--WATER QUALITY STANDARDS

    1. The authority citation for part 131 continues to read as 
follows:

    Authority: Clean Water Act, Pub. L. 92-500, as amended: 33 
U.S.C. 1251 et seq.


Sec. 131.3  [Amended]

    2. In Sec. 131.3 paragraph (j) is amended by revising the phrase 
``qualify for treatment as States for purposes of water quality 
standards'' to read ``to be eligible for purposes of a water quality 
standards program''.


Sec. 131.4  [Amended]

    3. In Sec. 131.4 paragraph (c) is amended by revising the phrase 
``qualifies for treatment as a State'' in both places that it appears 
to read ``is eligible to the same extent as a State''.


Sec. 131.7  [Amended]

    4. In Sec. 131.7 paragraph (b)(2) is amended by revising the phrase 
``qualifies to be treated as a State'' to read ``is eligible to the 
same extent as a State''.


Sec. 131.8  [Amended]

    5. The heading of Sec. 131.8 is amended by revising the phrase ``to 
be treated as States for purposes of water quality standards,'' to read 
``to administer a water quality standards program''.
    6. In Sec. 131.8 paragraph (a) introductory text is amended by 
revising the phrase ``treat an Indian Tribe as a State for purposes of 
the water quality standards program'' to read ``accept and approve a 
tribal application for purposes of administering a water quality 
standards program''.
    7. In Sec. 131.8 paragraph (b) introductory text is amended by 
revising the phrase ``for treatment as states for purposes of water 
quality standards'' to read ``for administration of a water quality 
standards program''.
    8. In Sec. 131.8 paragraph (b)(2) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    9. In Sec. 131.8 paragraph (b)(3) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    10. In Sec. 131.8 paragraph (b)(3)(ii) is amended by adding to the 
end of the paragraph the phrase ``and which may include a copy of 
documents such as Tribal constitutions, by-laws, charters, executive 
orders, codes, ordinances, and/or resolutions which support the Tribe's 
assertion of authority; and''.
    11. Section 131.8(b)(3)(iii) is removed.
    12. In Sec. 131.8 paragraph (b)(3)(iv) is redesignated as 
(b)(3)(iii).
    13. In Sec. 131.8 paragraph (b)(4) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    14. In Sec. 131.8 paragraph (b)(4)(i) is amended by revising the 
phrase ``including, but not limited to'' to read ``which may include''.
    15. In Sec. 131.8 paragraph (b)(5) is amended by revising the 
phrase ``request for treatment as a State,'' to read ``application''.
    16. In Sec. 131.8 paragraph (b)(6) is amended by revising the 
phrase ``qualified for treatment as a State'' to read ``qualified for 
eligibility or `treatment as a state''' and by removing the second 
occurrence of the phrase ``treatment as a State''.
    17. In Sec. 131.8 paragraphs (c) introductory text, (c)(1) and 
(c)(2) introductory text are amended by removing the words ``for 
treatment as a State''.
    18. In Sec. 131.8 paragraph (c)(4) is amended by revising the 
phrase ``after consultation with the Secretary of the Interior, or his 
designee'' to read ``after due consideration''.
    19. In Sec. 131.8 paragraph (c)(5) is amended by revising the words 
``has qualified to be treated as a State for purposes of water quality 
standards and that the Tribe may initiate the formulation and adoption 
of water quality standards approvable under this part'' to read ``is 
authorized to administer the Water Quality Standards program''.

PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS 
IMPLEMENTATION

    1. The authority citation for part 142 continues to read as 
follows:

    Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, and 300j-9.


Sec. 142.2  [Amended]

    2. In Sec. 142.2 the definition of ``State'' is amended by revising 
the phrase ``or an Indian Tribe treated as a State,'' to read ``or an 
eligible Indian tribe''.


Sec. 142.3  [Amended]

    3. In Sec. 142.3 paragraph (c) is amended by revising the phrase 
``be designated by the Administrator for treatment as a State'' to read 
``meet the statutory criteria at 42 U.S.C. 300j-11(b)(1)''.


Subpart H to Part 142  [Amended]

    4. The heading for subpart H of part 142 is revised to read as 
follows: Subpart H Indian Tribes


Sec. 142.72  [Amended]

    5. The heading of Sec. 142.72 is revised to read ``Requirements for 
Tribal Eligibility''.
    6. Section 142.72 is amended by revising the introductory text to 
read as follows:


142.72  Requirements for tribal eligibility.

    The Administrator is authorized to treat an Indian Tribe as 
eligible to apply for primary enforcement responsibility for the Public 
Water System Program if it meets the following criteria:
* * * * *
    7. In Sec. 142.72 paragraph (d) is amended by removing all language 
following ``(in a manner consistent with the terms and purposes of the 
Act and all applicable regulations) an effective Public Water System 
program''.


Sec. 142.76  [Amended]

    8. The heading of Sec. 142.76 is amended by revising the phrase 
``of treatment as a State'' to read ``of eligibility''.
    9. Section 142.76 is amended by revising in the introductory text 
the phrase ``qualifies for treatment as a State pursuant to'' to read 
``meets the criteria of.''
    10. In Sec. 142.76 paragraph (b) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    11. In Sec. 142.76 paragraph (c) is amended by revising the word 
``all'' to read ``those'' and by revising the phrase ``support the 
Tribe's asserted jurisdiction'' to read ``the Tribe beliefs are 
relevant to its assertions regarding jurisdiction''.
    12. In Sec. 142.76 paragraph (d) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    13. In Sec. 142.76 paragraph (d)(1) is amended by revising the 
words ``including, but not limited to'' to read ``which may include''.
    14. In Sec. 142.76 paragraph (e) is amended by revising the phrase 
``a Tribal request for treatment as a State'' to read ``a Tribe's 
eligibility''.
    15. In Sec. 142.76 paragraph (f) is revised to read as follows:


Sec. 142.76  Request by an Indian Tribe for a determination of 
eligibility.

* * * * *
    (f) If the Administrator has previously determined that a Tribe has 
met the prerequisites that make it eligible to assume a role similar to 
that of a state as provided by statute under the Safe Drinking Water 
Act, the Clean Water Act, or the Clean Air Act, then that Tribe need 
provide only that information unique to the Public Water System program 
(paragraphs (c) and (d) (5) and (6) of this section).


Sec. 142.78  [Amended]

    16. The heading of Sec. 142.78 is amended by removing the phrase 
``for treatment as a State''.
    17. In Sec. 142.78 paragraph (a) is amended by removing the words 
``for treatment as a State submitted pursuant to Sec. 142.76''.
    18. In Sec. 142.78 paragraphs (b), (c), and (d) are removed and 
paragraph (e) is redesignated as (b) and amended by revising the 
language ``If the Administrator determines that a Tribe meets the 
requirements of Sec. 142.72, the Indian Tribe is then eligible to apply 
for'' to read ``A tribe that meets the requirements of Sec. 142.72 is 
eligible to apply for''.

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

    1. The authority citation for part 144 continues to read as 
follows:

    Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.; 
Resource Conservation and Recovery Act, 42 U.S.C. 6902 et seq.

    2. Section 144.3 is amended by adding the definition of ``eligible 
Indian Tribe'' in alphabetical order to read as follows:


Sec. 144.3  Definitions.

* * * * *
    An eligible Indian Tribe is a Tribe that meets the statutory 
requirements established at 42 U.S.C. 300j-11(b)(1).
* * * * *

PART 145--STATE UIC PROGRAM REQUIREMENTS

    1. The authority citation for part 145 continues to read as 
follows:

    Authority: 42 U.S.C. 300f et seq.


Sec. 145.1  [Amended]

    2. In Sec. 145.1 paragraph (h) is amended in the first sentence by 
adding the word ``eligible'' between ``to'' and ``Indian Tribes,'' and 
by removing the second sentence.

Subpart E to Part 145--[Amended]

    3. The heading of subpart E of part 145 is revised to read as 
follows: Subpart E--Indian Tribes


Sec. 145.52  [Amended]

    4. The heading of Sec. 145.52 is revised to read ``Requirements for 
Tribal eligibility''.
    5. In Sec. 145.52 the introductory text is revised to read as 
follows:


Sec. 145.52  Requirements for Tribal eligibility.

    The Administrator is authorized to treat an Indian Tribe as 
eligible to apply for primary enforcement responsibility for the 
Underground Injection Control Program if it meets the following 
criteria:
* * * * *
    6. In Sec. 145.52 paragraph (d) is amended by removing all language 
following ``(in a manner consistent with the terms and purposes of the 
Act and all applicable regulations) an effective Underground Injection 
Control Program''.


Sec. 145.56  [Amended]

    7. The heading of Sec. 145.56 is amended by revising the phrase 
``of treatment as a State'' to read ``of eligibility''.
    8. In Sec. 145.56 the introductory text is amended by revising the 
phrase ``qualifies for treatment as a State pursuant to'' to read 
``meets the criteria of''.
    9. In Sec. 145.56 paragraph (b) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    10. In Sec. 145.56 paragraph (c) is amended by revising the word 
``all'' to read ``those,'' and by revising the phrase ``support the 
Tribe's asserted jurisdiction'' to read ``the Tribe believes are 
relevant to its assertions regarding jurisdiction''.
    11. In Sec. 145.56 paragraph (d) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    12. In Sec. 145.56 paragraph (d)(1) is amended by revising the 
words ``including, but not limited to'' to read ``which may include.''
    13. In Sec. 145.56 paragraph (e) is amended by revising the phrase 
``a Tribal request for treatment as a State'' to read ``a Tribe's 
eligibility''.
    14. In Sec. 145.56 paragraph (f) is revised to read as follows:


Sec. 145.56  Request by an Indian Tribe for a determination of 
eligibility.

    (f) If the Administrator has previously determined that a Tribe has 
met the prerequisites that make it eligible to assume a role similar to 
that of a State as provided by statute under the Safe Drinking Water 
Act, the Clean Water Act, or the Clean Air Act, then that Tribe need 
provide only that information unique to the Underground Injection 
Control program (Sec. 145.76(c) and (d)(6)).


Sec. 145.58  [Amended]

    15. The heading of Sec. 145.58 is amended by removing the phrase 
``for treatment as a State''.
    16. In Sec. 145.58 paragraph (a) is amended by removing the phrase 
``for treatment as a State submitted pursuant to Sec. 145.56''.
    17. In Sec. 145.58 paragraphs (b), (c), and (d) are removed and 
paragraph (e) is redesignated as paragraph (b) and amended by revising 
the language ``If the Administrator determines that a Tribe meets the 
requirements of Sec. 145.52, the Indian Tribe is then eligible to apply 
for'' to read ``A tribe that meets the requirements of Sec. 145.52 is 
eligible to apply for''.

PART 233--404 STATE PROGRAM REGULATIONS

    1. The authority citation for part 233 continues to read as 
follows:

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.


Subpart G to Part 233  [Amended]

    2. The heading of subpart G of part 233 is revised to read as 
follows:
Subpart G--Eligible Indian Tribes


Sec. 233.60  [Amended]

    3. The heading of 233.60 is revised to read ``Requirements for 
eligibility''.
    4. Section 233.60 introductory text is amended by removing the 
words ``a State for purposes of making the Tribe''.


Sec. 233.61  [Amended]

    5. The heading of Sec. 233.61 is revised to read ``Determination of 
Tribal eligibility.''
    6. In Sec. 233.61 the introductory text is amended by revising the 
phrase ``that it qualifies for treatment as a State pursuant to section 
518 of the Act'' to read ``that it meets the statutory criteria which 
authorize EPA to treat the Tribe in a manner similar to that in which 
it treats a State''; by revising the word ``shall'' in the last 
sentence to read ``should''.
    7. In Sec. 233.61 paragraph (b) introductory text is amended by 
revising the word ``shall'' to read ``should''.
    8. In Sec. 233.61 paragraph (c)(2) is amended by adding ``which may 
include a copy of documents such as Tribal constitutions, by-laws, 
charters, executive orders, codes, ordinances, and/or resolutions which 
support the Tribe's assertion of authority;''.
    9. Section 233.61 (c)(3) is removed.
    10. In Sec. 233.61 paragraph (d) introductory text is amended by 
revising the word ``shall'' to read ``may''.
    11. In Sec. 233.61 paragraph (d)(1) is amended by revising the 
words ``including, but not limited to'' to read ``which may include''.
    12. In Sec. 233.61 paragraph (e) is amended by revising the words 
``request for treatment as a State'' to read ``application''.
    13. In Sec. 233.61 paragraph (f) is amended by adding the words 
``for eligibility or'' between ``has met the requirements'' and ``for 
`treatment as a state.'''


Sec. 233.62  [Amended]

    14. The heading of Sec. 233.62 is amended by removing the phrase 
``for treatment as a State''.
    15. In Sec. 233.62 paragraph (a) is amended by removing the phrase 
``for treatment as a state''.
    16. In Sec. 233.62 paragraphs (b), (c), (d), and (e) are removed.
    17. In Sec. 233.62 paragraph (f) is redesignated as paragraph (b).

PART 501--STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS

    1. The authority citation for part 501 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.


Sec. 501.11  [Amended]

    2. In Sec. 501.11 (a)(1) remove the phrase ``eligible for treatment 
as a state'' and revise the text ``Sec. 501.24(e)'' to read 
``Sec. 501.24(b)''.
    3. In Sec. 501.11(b)(2) remove the phrase ``for treatment as a 
State'' both times it appears and revise the text ``Sec. 501.24(e)'' to 
read ``Sec. 501.24(b)''.


Sec. 501.12  [Amended]

    4. In Sec. 501.12(g) remove the phrase ``for treatment as a State'' 
and revise the text ``Sec. 501.24(e)'' to read ``Sec. 501.24(b)''.


Sec. 502.22  [Amended]

    5. The heading of Sec. 501.22 is amended by revising the phrase 
``for treatment of Indian Tribes as States'' to read ``for eligibility 
of Indian Tribes.''
    6. In Sec. 501.22 paragraph (a) introductory text is amended by 
removing the phrase ``a State for purposes of making the Tribe.''
    7. In Sec. 501.22 paragraph (a)(4) is amended by removing the last 
two sentences.


Sec. 501.23  [Amended]

    8. The heading of Sec. 501.23 is amended by removing the phrase 
``for treatment as a State''.
    9. In Sec. 501.23 the introductory text is amended by removing the 
phrase ``for treatment as a State.''
    10. In Sec. 501.23 paragraph (b) introductory text is amended by 
revising the word ``shall'' to read ``should.''
    11. In Sec. 501.23 paragraph (c) is amended by revising the phrase 
``a copy of all documents'' to read ``copies of those documents'' and 
by revising the phrase ``support the Tribe's assertion'' to read ``the 
Tribe believes are relevant to its assertion.''
    12. In Sec. 501.23 paragraph (d) introductory text is amended by 
revising the word ``shall'' to read ``should.''
    13. In Sec. 501.23 paragraph (d)(1) is amended by revising the 
words ``including, but not limited to'' to read ``which may include.''
    14. In Sec. 501.23 paragraph (e) is amended by revising the phrase 
``a Tribal request for treatment as a State'' to read ``a Tribe's 
eligibility.''
    15. In Sec. 501.23 paragraph (f) is revised to read as follows:


Sec. 501.23  Request by an Indian Tribe for a determination of 
eligibility.

* * * * *
    (f) If the Administrator or her delegatee has previously determined 
that a Tribe has met the prerequisites that make it eligible to assume 
a role similar to that of a state as provided by statute under the Safe 
Drinking Water Act, the Clean Water Act, or the Clean Air Act, then 
that Tribe need provide only that information unique to the sludge 
management program which is requested by the Regional Administrator.


Sec. 501.24  [Amended]

    16. The heading of Sec. 501.24 is amended by removing the phrase 
``for treatment as a State.''
    17. In Sec. 501.24 paragraph (a) is amended by removing the words 
``for treatment as a State.''
    18. In Sec. 501.24 paragraphs (b), (c), (d) and (e) are removed and 
paragraph (f) is redesignated as paragraph (b).

[FR Doc. 94-6383 Filed 3-22-94; 8:45 am]
BILLING CODE 6560-50-P