[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30401]


[[Page Unknown]]

[Federal Register: December 14, 1994]


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

[FRL-5119-9]
RIN 2020-AA20

 

Indian Tribes; Eligibility for Program Authorization

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action amends regulations addressing the role of Indian 
tribes so as to make it easier for tribes to obtain EPA approval to 
assume the role Congress envisioned for them under certain 
environmental statutes. Three EPA regulatory statutes address the 
tribal role specifically by authorizing EPA to treat tribes in a manner 
similar to that in which it treats states: The Clean Water Act (CWA), 
the Safe Drinking Water Act (SDWA), and the Clean Air Act (CAA). All 
three statutes specify that, in order to receive such treatment, a 
tribe must be federally recognized and possess a governing body 
carrying out substantial duties and powers. In addition, each requires 
that a tribe possess civil regulatory jurisdiction to carry out the 
functions it seeks to exercise. Finally, all three require that a tribe 
be reasonably expected to be capable of carrying out those functions.
    The Agency initially chose to implement provisions of the Clean 
Water and Safe Drinking Water Acts regarding Indian tribes by 
establishing a formal prequalification process under which tribes can 
seek eligibility under these statutes. This prequalification process 
has in the past been referred to as approval for ``treatment as a 
state'' (``TAS''). Tribes that obtain such approval then become 
eligible to apply for certain grants and program approvals available to 
states.
    The Agency's ``TAS'' prequalification process has proven to be 
burdensome, time-consuming and offensive to tribes. Accordingly, EPA 
has adopted a new policy to improve and simplify the process and this 
regulation implements the new policy. To the extent possible, the 
Agency plans to use the same process in future regulations regarding 
determinations of tribal eligibility.
    As of the effective date of this regulation, it is the intent of 
EPA to follow the new process in making determinations on tribal 
eligibility for program authorization. With respect to pending ``TAS'' 
applications for program authorization, the Agency will utilize the 
information contained in such applications to determine tribes' 
eligibility and tribes will be requested to supplement such 
applications only to the extent necessary to determine program 
eligibility.

EFFECTIVE DATE: December 14, 1994.

FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office of Federal 
Activities (2251), Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460, (202) 260-8792.

SUPPLEMENTARY INFORMATION:

Background

    In order to simplify and streamline the process of assessing tribal 
eligibility for program authorization while still ensuring full 
compliance with all applicable statutes, on March 23, 1994, EPA 
published in the Federal Register (59 FR 13819) a notice of proposed 
rulemaking to amend regulations governing the process whereby Indian 
tribes become eligible to assume a role in implementing the 
environmental statutes on tribal land comparable to the role states 
play on state land.
    EPA recognizes that tribes are sovereign nations with a unique 
legal status and a relationship to the federal government that is 
significantly different than that of states. EPA believes that Congress 
did not intend to alter this when it authorized treatment of tribes 
``as States;'' rather, the purpose was to reflect an intent that, 
insofar as possible, tribes should assume a role in implementing the 
environmental statutes on tribal land comparable to the role states 
play on state land.
    The proposals set forth in the proposed rule involved the 
following:
    1. Elimination of ``TAS'' review as a separate step in the process. 
No statute compels the use of a formal ``TAS'' or other 
prequalification process separate from approval of the underlying 
request for program approval. The only requirements imposed by statute 
are that, to be eligible for program authorization, a tribe must be 
federally recognized, have a governing body carrying out substantial 
duties and powers, and have adequate jurisdiction and capability to 
carry out the proposed activities. Thus, EPA may authorize a tribal 
program without formally designating the tribe as ``eligible for TAS,'' 
so long as the Agency establishes that the tribe meets the applicable 
statutory requirements. In other words, the Agency can ensure 
compliance with statutory mandates without requiring tribes to undergo 
a discrete, formal process of seeking ``TAS'' approval.
    Accordingly, EPA is amending its regulations to eliminate ``TAS'' 
review as a separate step in the processing of a tribal application for 
program approval. Under the new, simplified process, the Agency will 
ensure compliance with statutory requirements as an integral part of 
the process of reviewing program approval applications. To the extent 
that this rule or preamble conflicts with the language of previous 
rules and preambles, the language herein shall be controlling.
    2. Discontinuance of use of the term ``treatment as a state.'' To 
the extent possible, the rule amends existing regulations so as to 
discontinue use of the term ``treatment as a state''; however, since 
the phrase is included in several statutes, its continued use may 
sometimes be necessary.
    3. Simplified determination as to ``recognition'' and 
``government.'' A tribe typically establishes recognition by showing 
its inclusion on the list of federally recognized Tribes published by 
the Secretary of the Interior in the Federal Register. A tribe 
establishes that it meets the governmental duties and powers 
requirement with a narrative statement describing the form of the 
tribal government and the types of functions it performs, and 
identifying the sources of the tribe's governmental authority.
    As a general rule, the ``recognition'' and ``governmental'' 
requirements are essentially the same under the Clean Water, Safe 
Drinking Water and Clean Air Acts. The new process will reflect this by 
establishing identical requirements for making this showing under each 
statute. Moreover, the fact that a tribe has met the recognition or 
governmental functions requirement under either of the Water Acts or 
the Clean Air Act will establish that it meets those requirements under 
both statutes. To facilitate review of tribal applications, EPA will 
request that tribal applications inform EPA whether a tribe has been 
approved for ``TAS'' (under the old process) or deemed eligible to 
receive authorization (under the revised process) for any other 
program.
    A tribe that has not done so may establish that it has been 
federally recognized by simply stating in its program authorization 
application that it appears on the list of federally recognized tribes 
that the Secretary of the Interior publishes periodically in the 
Federal Register. If the tribe notifies EPA that it has been recognized 
but does not appear on this list because the list has not been updated, 
EPA will seek to verify the fact of recognition with the Department of 
the Interior.
    A tribe that has not yet made its initial ``governmental'' showing 
can do so by certifying that it has a government carrying out 
substantial functions. A tribe will be able to make the required 
certification if it is currently performing governmental functions to 
promote the public health, safety, and welfare of its population. 
Examples of such functions include, but are not limited to, levying 
taxes, acquiring land by exercise of the power of eminent domain, and 
exercising police power. Such examples should be included in a 
narrative statement supporting the certification, (1) describing the 
form of tribal government and the types of essential governmental 
functions currently performed, and (2) identifying the legal 
authorities for performing those functions (e.g., tribal constitutions 
or codes). It should be relatively easy for tribes to meet this 
requirement without submitting copies of specific documents unless 
requested to do so by the Agency.
    4. Simplified jurisdictional analysis. A tribe may have 
jurisdiction over, and capability to carry out, certain activities 
(e.g., protection of the quality of a particular lake for the Clean 
Lakes program under the Clean Water Act), but not others (e.g., waste 
management on a portion of the reservation far removed from any lakes). 
For this reason, EPA believes that the Agency must make a specific 
determination that a tribe has adequate jurisdictional authority and 
administrative and programmatic capability before it approves each 
tribal program. This will ensure that tribes meet the statutory 
requirements Congress has established as prerequisites to tribal 
eligibility for each particular program.
    The portion of the jurisdictional determination under which 
governments comment on tribal jurisdiction will be substantially 
altered under this Rule. These changes are outlined below.
    For approvals of all Drinking Water regulatory programs and most 
Clean Water programs under existing regulations, EPA will not authorize 
a state to operate a program without determining that the state has 
adequate authority to carry out those actions required to run the 
program. See e.g. 40 CFR 142.10 (PWS), 145.24 (UIC). This applies also 
to a tribe seeking program approval, and ensures that a close analysis 
of the legal basis of a tribe's jurisdiction will occur before program 
authorization.
    Accordingly, a separate ``TAS'' jurisdictional review is not needed 
to verify that a tribe meets the statutory jurisdictional requirement 
and, therefore, will be eliminated for all programs under the Safe 
Drinking Water Act, and for the Clean Water Act's 404 and NPDES 
programs. This change will have the effect only of eliminating 
duplicative requirements. In no case can a tribe receive program 
approval until the Agency has received full and adequate input 
concerning the scope and extent of the tribe's jurisdiction. Moreover, 
EPA will expect each tribe seeking program approval to provide a 
precise description of the physical extent and boundaries of the area 
for which it seeks regulatory authority. This description should 
ordinarily include a map and should identify the sources or systems to 
be regulated by the tribe.
    However, for the Water Quality Standards program, there is no 
review of tribal civil regulatory authority as part of the standards 
approval process under section 303(c) of the Clean Water Act. 
Accordingly, for that program, a comment process will be retained. 
However, the Agency wishes to clarify the operation of that process by 
reiterating that comments must be offered in a timely manner, and, 
further, by specifying that where no timely comments are offered, the 
Agency will conclude that there is no objection to the tribal 
applicant's jurisdictional assertion. Moreover, to raise a competing or 
conflicting claim a comment must clearly explain the substance, basis, 
and extent of its objections. Finally, when questions are raised 
concerning a tribe's jurisdiction, EPA may, in its discretion, seek 
additional information from the tribe or the commenting party, and may 
consult as it sees fit with other federal agencies prior to making a 
determination as to tribal jurisdictional authority, but is not 
required to do so. Henceforth, EPA will no longer be required, by 
regulation, to consult with the Department of the Interior.
    Finally, the Agency notes that certain disputes concerning tribal 
jurisdiction may be relevant to a tribe's authority to conduct 
activities and obtain program approval under several environmental 
statutes. For example, if a tribe and a state or another tribe disagree 
as to the boundary of a particular tribe's reservation, each time the 
tribe seeks to assert authority over the disputed area, the dispute 
will recur. The Agency recognizes that its determinations regarding 
tribal jurisdiction apply only to activities within the scope of EPA 
programs. However, it also believes that, once it makes a 
jurisdictional determination in response to a tribal application 
regarding any EPA program, it will ordinarily make the same 
determination for other programs unless a subsequent application raises 
different legal issues. Thus, for example, once the Agency has arrived 
at a position concerning a boundary dispute, it will not alter that 
position in the absence of significant new factual or legal 
information. By contrast, however, a determination that a tribe has 
inherent jurisdiction to regulate activities in one medium might not 
conclusively establish its jurisdiction over activities in another 
medium. See generally Discussion of inherent tribal authority in Water 
Quality Standards Regulation, 56 FR 64877-64879.
    Under the new approval process, as under the old, the Agency will 
continue to retain authority to limit its approval of a tribal 
application to those land areas where the tribe has demonstrated 
jurisdiction. This would allow EPA to approve the portion of a tribal 
application covering certain areas, while withholding approval of the 
portion of an application addressing those land areas where tribal 
authority has not been satisfactorily established. See, e.g., 53 FR 
37395, 37402 (September 26, 1988) (SDWA); 54 FR 14353, 14355 (April 11, 
1989) (Clean Water Act Grants); 54 FR 39097, 39102 (September 12, 1989) 
(Clean Water Act Water Quality Standards); 58 FR 8171, 8176 (February 
11, 1993) (Clean Water Act section 404); 58 FR 67966, 67972 (Clean 
Water Act NPDES) (December 22, 1993).
    5. More flexible requirements to establish capability. EPA must 
continue to make a separate determination of tribal capability for each 
program for which it approves a tribe. However, the Safe Drinking Water 
Act, Water Quality Standards, Section 404, and NPDES regulations will 
be amended to conform to the CWA grant regulations, which do not 
specifically prescribe the material a tribe must submit to establish 
capability. Ordinarily, the inquiry EPA will make into the capability 
of any applicant, tribal or state, for a grant or program approval will 
be sufficient to enable the Agency to determine whether a tribe meets 
the statutory capability requirement. See, e.g., 40 CFR part 31 (grant 
regulations applicable to states and tribes); 40 CFR 142.3 (Public 
Water System primary enforcement responsibility requirements at parts 
141, 142 apply to tribes); Sec. 145.1(h) (Underground Injection Control 
requirements of parts 124, 144, 145, and 146 that apply to states 
generally apply to tribes).
    Nevertheless, EPA may request that the tribe provide a narrative 
statement or other documents showing that the tribe is capable of 
administering the program for which it is seeking approval. In 
evaluating tribal capability, EPA will consider:
    (1) The tribe's previous management experience;
    (2) Existing environmental or public health programs administered 
by the tribe;
    (3) The mechanisms in place for carrying out the executive, 
legislative and judicial functions of the tribal government;
    (4) The relationship between regulated entities and the 
administrative agency of the tribal government which will be the 
regulator; and
    (5) The technical and administrative capabilities of the staff to 
administer and manage the program.
    EPA recognizes that certain tribes may not have substantial 
experience administering environmental programs; a lack of such 
experience will not preclude a tribe from demonstrating capability, so 
long as it shows that it has the necessary management and technical and 
related skills or submits a plan describing how it will acquire those 
skills.
    The notice of proposed rulemaking invited public comments on the 
proposed amendments, which would be considered before adoption of a 
final rule. The public comment period closed on May 23, 1994.

Analysis of Comments

    A total of seven commenters responded to the solicitation of 
comments during the public comment period. Of these, four expressed 
support for the proposed changes in varying degrees, one of whom 
expressed strong support and others supported the changes generally but 
disagreed with certain aspects or had specific recommendations for 
other changes. One commenter did not express support or opposition but 
urged EPA to continue to stress that tribes should enact water quality 
programs similar to current state water quality programs. Another 
commenter, while not explicitly supporting the proposed amendments, 
urged that they be extended to include two other programs under the 
Safe Drinking Water Act. A final commenter opposed one aspect of the 
simplification process as it related to state review of tribal 
applications. These comments, suggested changes, and the EPA responses 
thereto, are set forth below.
    Comment: Consistent with the EPA Indian Policy and sound 
administrative practice, EPA should recognize tribal authority over all 
environmental matters within reservation boundaries, without requiring 
tribes to demonstrate their inherent authority.
    Response: EPA recognizes the importance of comprehensive management 
of reservation environments. However, EPA does not have the legal 
authority to expand the scope of tribal jurisdiction. Consequently, EPA 
must continue to analyze each tribal claim of jurisdiction in light of 
appropriate statutory and common law principles to ensure that the 
tribe in fact has adequate authority to carry out the functions it 
proposes to undertake.
    Comment: EPA is to be commended for eliminating the state 
opportunity to comment on tribal jurisdictional assertions for all SDWA 
programs and for the Clean Water Act Section 404 and NPDES programs. 
However, since tribes cannot comment on state jurisdictional assertions 
in any programs, in fairness EPA should also eliminate state 
opportunity to comment on tribal jurisdictional assertions regarding 
Water Quality Standards.
    Response: EPA continues to believe that it has the legal authority 
to approve a tribal Water Quality Standards program only upon a 
determination that the tribe has adequate authority to operate that 
program, and that state comments may be useful to the Agency in making 
that determination.
    Comment: EPA could further simplify the TAS process by providing 
that, when EPA reviews a new TAS application for a tribe that has 
already obtained TAS approval for one program, EPA will rely on the 
jurisdictional assertions in the prior approval to establish 
jurisdiction for a subsequent program. Where the earlier jurisdictional 
assertions do not establish jurisdiction adequately for the subsequent 
application, EPA would notify the tribe of any deficiencies and the 
tribe could then supplement or amend the original jurisdictional 
statement.
    Response: EPA agrees with the commenter that this would simplify 
the process. However, EPA believes that it should look in the first 
instance to each tribal applicant's views as to its own jurisdiction. 
Thus a tribe that believes it is appropriate to provide more 
information regarding jurisdiction on a subsequent application than it 
provided on a previous one should be able to do so directly, without 
waiting for EPA to determine, after it begins processing an 
application, that more information is needed. EPA believes that under 
the current proposal, a tribe that wishes to use the process described 
by the commenter could do so by expressly incorporating the earlier 
jurisdictional assertion into a subsequent application.
    In addition, the jurisdictional approach the Agency has determined 
the Clean Air Act allows it to follow differs substantially from the 
approach it follows under the Water Acts. For this reason, EPA does not 
believe it would be appropriate to establish a process under which a 
tribe would assume that, unless advised to the contrary, a 
jurisdictional assertion that was adequate under the Clean Air Act 
would also be adequate under one of the Water Acts.
    Comment: States should be able to comment on the jurisdictional 
assertions contained in tribal grant applications. Also, states should 
not be totally bypassed in decisions to approve tribal regulatory 
programs.
    Response: As stated in the Federal Register notice amending the EPA 
financial assistance regulations for tribes, EPA has extensive 
experience awarding grants to tribes, and has concluded that it is 
fully capable of evaluating grant applications to ensure adequate 
tribal jurisdiction without seeking comments from states. EPA agrees 
that it should obtain information from states concerning tribal 
applications for program approval, and the proposed regulatory changes 
would ensure that this occurs.
    Comment: One commenter, while supporting the intent of the proposed 
revisions, urged that (1) EPA regulations relating to Section 401 
Certification (40 CFR part 121) be amended to expressly include Indian 
tribes so as to facilitate tribal involvement in the section 401 
process, to resolve disagreements between tribes and states and to 
resolve disputes between tribes as well; (2) an apparent inconsistency 
in the definition of ``State'' in Sec. 122.2 (which references Indian 
tribes that have obtained approval of their NPDES program but not their 
WQS program) be changed so that water quality standards set by approved 
tribes will be protected in NPDES permits under Secs. 122.44, 124.53 
and similar provisions; and (3) the regulations for the dispute 
resolution mechanism, 40 CFR 131.7, be revised to expressly authorize 
the use of this process for resolving disputes between two or more 
tribes that have differing standards for common bodies of water.
    Response: (1) EPA believes it is unnecessary to amend the 401 
regulations in Part 121 through the present TAS revisions rule in order 
to clarify that tribes have the authority to provide 401 certifications 
once they have approved water quality standards (WQS). It is EPA's 
position that tribes clearly have 401 authority once they receive 
approval of their WQS as specified in 40 CFR 131.4(c).
    (2) EPA also does not believe that changes are necessary to the 
definition of ``State'' in Sec. 122.2. The intent of EPA's regulations 
was to require the permitting authority (whether EPA or an authorized 
NPDES State) to issue permits which comply with all applicable water 
quality standards (including WQS approved by EPA for an Indian tribe). 
EPA interprets its regulations to require that all NPDES permits comply 
with applicable and EPA approved tribal WQS regardless of whether the 
tribe has been authorized as a permitting authority for the NPDES 
program. EPA's new regulatory provision in 40 CFR 124.51(c) supports 
the tribes' 401 certification authority and reads as follows: ``As 
stated in 40 CFR 131.4, an Indian Tribe that is qualified for Treatment 
as a State for purposes of the WQS program is likewise qualified for 
treatment as a State for purposes of State certification of WQS 
pursuant to section 401(a)(1) of the Act [Clean Water Act] and Subpart 
D of this part.'' The preamble of the final NPDES rule at 58 FR 67967 
(December 10, 1993) discusses this new provision in more depth.
    In addition, the recent EPA guidance concerning EPA's 
implementation of the NPDES and sludge management programs with respect 
to Federal Indian Reservations (FIRs) specifies that ``In situations 
where a State is the upstream NPDES permitting authority and downstream 
FIR Tribal WQS have been approved by EPA, the State will provide notice 
of the preparation of a draft permit to the affected Tribe pursuant to 
CWA sections 401 and 402. Under CWA sections 402(b)(3) and 40 CFR 
124.12(a), the upstream NPDES state must provide an opportunity for 
public hearing on the issuance of the draft permit where there is 
significant public interest in so doing. Under CWA section 402(b)(5), 
the affected Tribe may submit written recommendations to the permitting 
State and EPA, and the failure to accept the recommendations and the 
reasons for doing so. EPA can object to the upstream State permit where 
EPA believes that the reasons for rejecting the recommendations are 
inadequate.'' Therefore, this guidance reflects EPA's general view that 
applicable tribal WQS are to be reflected in all water quality-based 
NPDES permit limits. When the Part 122-124 regulations refer to WQS of 
a ``State,'' this also refers to Indian tribes with EPA approved WQS.
    (3) EPA previously responded to comments regarding the scope of the 
dispute resolution mechanism on the rule allowing tribes to establish 
WQS (56 FR 64876, December 12, 1991). At that time, OW commented that 
the rule was written in this manner because Section 518 of the Clean 
Water Act specified that a dispute resolution mechanism be developed to 
resolve disputes arising between a tribe and a state. OW further 
commented that EPA believes the requirements that the State standards 
provide for protection of downstream standards in Sec. 131.10(b) of the 
WQS Regulation, supported by a 25 year history of informal negotiation 
of issues between states, provides sufficient basis for resolving 
disputes between two states or two tribes. 56 FR 64888-64889. Further 
comments on this issue are beyond the scope of this rule and, 
therefore, EPA declines to revisit it at this time.
    Comment: Although the proposed regulation would simplify the TAS 
process for a number of programs, it would not apply expressly to 
wellhead protection programs or sole source aquifer demonstration 
programs under the Safe Drinking Water Act. The Agency should consider 
seriously the inclusion of these important programs under the new 
regulation as well.
    Response: EPA does not believe that it would be appropriate to 
expand the scope of the regulation at this stage of its development. 
However, as pointed out previously in the Summary of this regulation, 
to the extent possible, the Agency plans to use the new process in 
future regulations regarding determinations of tribal eligibility.

Conclusion

    Accordingly, based on the comments received and the analysis of 
those comments as set forth above, EPA believes that the proposed 
regulatory amendments as published in the Federal Register on March 23, 
1994 (59 FR 13819) should be adopted as a final rule as discussed above 
and set forth below.

Executive Order 12866

    Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

List of Subjects

40 CFR Part 123

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

40 CFR Part 124

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

40 CFR Part 131

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

40 CFR Part 142

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

40 CFR Part 144

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

40 CFR Part 145

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

40 CFR Part 233

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

40 CFR Part 501

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

    Dated: November 18, 1994.
Fred Hansen,
Acting Administrator.

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

PART 123--STATE PROGRAM REQUIREMENTS

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

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


Sec. 123.1  [Amended]

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


Sec. 123.21  [Amended]

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


Sec. 123.22  [Amended]

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


Sec. 123.31  [Amended]

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


Sec. 123.32  [Amended]

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


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

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


Sec. 123.33  [Amended]

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

PART 124--PROCEDURES FOR DECISIONMAKING

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

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


Sec. 124.2  [Amended]

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


Sec. 124.51  [Amended]

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

PART 131--WATER QUALITY STANDARDS

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

    Authority: 33 U.S.C. 1251 et seq.


Sec. 131.3  [Amended]

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


Sec. 131.4  [Amended]

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


Sec. 131.7  [Amended]

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


Sec. 131.8  [Amended]

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

PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS 
IMPLEMENTATION

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

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


Sec. 142.2  [Amended]

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


Sec. 142.3  [Amended]

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

Subpart H--Indian Tribes

    4. The heading for subpart H of part 142 is revised to read as set 
forth above.


Sec. 142.72  Requirements for Tribal eligibility.

    5. The heading of Sec. 142.72 is revised to read as set forth 
above.
    6-7. Section 142.72 is amended by revising the introductory text 
and paragraph (d) to read as follows:


Sec. 142.72  Requirements for Tribal eligibility.

    The Administrator is authorized to treat an Indian Tribe as 
eligible to apply for primary enforcement responsibility for the Public 
Water System Program if it meets the following criteria:
* * * * *
    (d) The Indian Tribe is reasonably expected to be capable, in the 
Administrator's judgment, of administering (in a manner consistent with 
the terms and purposes of the Act and all applicable regulations) an 
effective Public Water System program.
* * * * *


Sec. 142.76  [Amended]

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


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

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


Sec. 142.78  [Amended]

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

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

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

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

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


Sec. 144.3  Definitions.

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

PART 145--STATE UIC PROGRAM REQUIREMENTS

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

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


Sec. 145.1  [Amended]

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

Subpart E--Indian Tribes

    3. The heading of subpart E of part 145 is revised to read as set 
forth above.


Sec. 145.52  Requirements for Tribal eligibility.

    4. The heading of Sec. 145.52 is revised to read as set forth 
above.
    5-6. Section 145.52 is amended by revising the introductory text 
and paragraph (d) to read as follows:


Sec. 145.52  Requirements for Tribal eligibility.

    The Administrator is authorized to treat an Indian Tribe as 
eligible to apply for primary enforcement responsibility for the 
Underground Injection Control Program if it meets the following 
criteria:
* * * * *
    (d) The Indian Tribe is reasonably expected to be capable, in the 
Administrator's judgment, of administering (in a manner consistent with 
the terms and purposes of the Act and all applicable regulations) an 
effective Underground Injection Control Program.
* * * * *


Sec. 145.56  [Amended]

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


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

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


Sec. 145.58  [Amended]

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

PART 233--404 STATE PROGRAM REGULATIONS

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

    Authority: 33 U.S.C. 1251 et seq.

Subpart G--Eligible Indian Tribes

    2. The heading of subpart G of part 233 is revised to read as set 
forth above.


Sec. 233.60  Requirements for eligibility.

    3. The heading of Sec. 233.60 is revised to read as set forth 
above.
    4. Section 233.60 introductory text is amended by removing the 
words ``a State for purposes of making the Tribe''.


Sec. 233.61  Determination of Tribal eligibility.

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


Sec. 233.62  [Amended]

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

PART 501--STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS

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

    Authority: 33 U.S.C. 1251 et seq.


Sec. 501.11  [Amended]

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


Sec. 501.12  [Amended]

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


Sec. 501.22  [Amended]

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


Sec. 501.23  [Amended]

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


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

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


Sec. 501.24  [Amended]

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

[FR Doc. 94-30401 Filed 12-13-94; 8:45 am]
BILLING CODE 6560-50-P