[Federal Register Volume 67, Number 213 (Monday, November 4, 2002)]
[Notices]
[Pages 67181-67183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28005]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7403-9]


Update to EPA Policy on Certain Grants to Intertribal Consortia

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is providing public 
notice that it is updating its policy allowing for the award of grants 
to intertribal consortia to include two new grant programs that were 
authorized by the recently enacted Small Business Liability Relief and 
Brownfields Revitalization Act (SBLRBRA). The effect of this policy 
change is that EPA interprets its authority to award, to Federally 
recognized Indian tribes, Brownfields Revitalization Grants and State 
and Tribal grants for the establishment and enhancement of state and 
tribal response programs to include awarding such grants to intertribal 
consortia, as the term is defined in this document. This document does 
not affect the eligibility status of intertribal consortia in their 
capacity to apply for other types of grants authorized under SBLRBRA.

DATES: The policy update summarized in this document is effective 
immediately.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing 
impaired). In the Washington, DC metropolitan area, call 703-412-9810 
or TDD 703-412-3323.
    For more detailed information on specific aspects of this rule, 
contact Felicia Wright, Office of Solid Waste and Emergency Response, 
(Mail Code

[[Page 67182]]

5105T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460-0002, 202-566-1786. [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 29, 1999, EPA published a document advising the public 
of its policy to interpret statutes authorizing EPA to make grants to 
Indian tribes for specified EPA grant programs to Indian tribes. This 
policy will allow EPA to award grants to intertribal consortia to the 
extent that such an interpretation would be consistent with 
Congressional intent (64 FR 52504, September 29, 1999). Subsequently, 
the Agency promulgated regulations at 40 CFR part 35, subpart B which 
reflect that policy with some modifications, for all but two grant 
programs. The two programs covered under the September 1991 document, 
but not affected by the regulations include grants authorized by 
section 104(d) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) and grants for the Leaking 
Underground Storage Tank program authorized under Subtitle I of RCRA. 
Today EPA is providing public notice that it is updating its September 
1999 policy to include two new grant programs that were authorized by 
the recently enacted Small Business Liability Relief and Brownfields 
Revitalization Act (SBLRBRA, Pub. L. 107-118). The policy also is being 
updated to modify the requirements for intertribal consortia to receive 
grants under the grant programs covered by the September 1999 document, 
but not covered by regulations at 40 CFR part 35, subpart B.
    SBLRBRA amended the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) to authorize funding for 
Brownfields revitalization grants (e.g., site assessment, cleanup, and 
revolving loan fund grants) and for establishing or enhancing State and 
tribal response programs. EPA is notifying the public today that it 
interprets its new authorities under section 104(k) of CERCLA to award 
Brownfields revitalization grants to Federally recognized Indian tribes 
to include awarding these grants to intertribal consortia, as that term 
is defined in this document. The Agency notes, however, that section 
104(k)(1)(G) of CERCLA excludes Indian tribes in Alaska from the 
definition of entities eligible for Brownfields revitalization funding. 
The Agency also interprets its new authorities under section 128(a) of 
CERCLA to award grants to establish and enhance tribal response 
programs to include awarding these grants to intertribal consortia. 
Intertribal consortia comprised of Alaskan Indian tribes are eligible 
for funding under section 128(a) of CERCLA.
    On September 29, 1999, EPA announced its policy regarding the award 
of financial assistance to intertribal consortia under the following 
EPA grant programs for Indian tribes: Pesticides Program Implementation 
(section 23(a)(1) of the Federal Insecticide, Fungicide, and 
Rodenticide Act); Pesticides Enforcement (section 23(a)(1) of the 
Federal Insecticide, Fungicide, and Rodenticide Act); Superfund 
Cooperative Agreements (section 104(d) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA)); 
Leaking Underground Storage Tanks (Department of Veterans Affairs and 
Housing and Urban Development, and Independent Agencies Appropriations 
Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2497-98(1998)); Underground 
Storage Tank Programs (Department of Veterans Affairs and Housing and 
Urban Development, and Independent Agencies Appropriations Act, 1999, 
Pub. L. 105-276, 112 Stat. 2461, 2499(1998)); and Hazardous Waste 
Management Programs (Department of Veterans Affairs and Housing and 
Urban Development, and Independent Agencies Appropriations Act, 1999, 
Pub. L. 105-276, 112 Stat. 2461, 2499(1998)). The September 1999 tribal 
consortia funding policy states:

    In the absence of clear Congressional intent to the contrary and 
in accordance with the definition and requirements set forth [in the 
September 29, 1999 Federal Register notice], EPA interprets its 
statutory authorities to award grants to Indian tribes to include 
the authority to award grants to intertribal consortia. If Indian 
tribes are eligible for a particular grant, EPA will also treat a 
group of individually eligible tribes (an intertribal consortium) as 
eligible for the grant. EPA believes this approach is a practical, 
reasonable and prudent way to help interested tribes strengthen 
environmental protection when limited funding is available to 
support tribal environmental program. Tribes that form an 
intertribal consortium may be able to use their limited resources 
more efficiently and address environmental issues more effectively 
than they could if each tribe developed and maintained separate 
environmental programs. Moreover, EPA believes that making grants 
for tribes available to intertribal consortia is consistent with 
President Clinton's Executive Order 13084, which encourages agencies 
to adopt ``flexible policy approaches'' and to respect the principle 
of Indian self-government and sovereignty.

    Executive Order 13084 was revoked by Executive Order 13175 dated 
November 6, 2000, which also encourages agencies to adopt flexible 
policy approaches and to recognize tribal self government and 
sovereignty. At the time the September 1999 document was published, EPA 
had also announced the same policy and rationale in a proposed 
rulemaking governing the award of environmental program grants to 
Indian tribes, which has since been promulgated as a final rule and is 
codified at 40 CFR part 35, subpart B (66 FR 3782, January 16, 2001). 
In the September 1999 document, EPA explained that it may change this 
policy as a result of comments received in response to the proposed 
rule governing grants to intertribal consortia at 40 CFR part 35, 
subpart B (i.e., grants under the Pesticides Program Implementation; 
Pesticides Enforcement; Underground Storage Tank Programs; and 
Hazardous Waste Management Programs). EPA further explained in 
September 1999 that if EPA changed the treatment of consortia in grant 
programs covered by 40 CFR part 35, subpart B, then EPA would likely 
issue a subsequent Federal Register notice so as to treat grants to 
intertribal consortia consistently in all programs covered by the 
September 1999 Federal Register document. Because EPA made some changes 
to the eligibility requirements for intertribal consortia in the final 
rulemaking, this document makes the same changes for grants to 
intertribal consortia under the following two EPA grant programs for 
Indian tribes: Superfund Cooperative Agreements (section 104(d) of the 
CERCLA); Leaking Underground Storage Tanks (Department of Veterans 
Affairs and Housing and Urban Development, and Independent Agencies 
Appropriations Act, 1999, Pub. L.w 105-276, 112 Stat. 2461, 2497-
98(1998)). In addition, with this document, EPA announces that it will 
apply the policy to grants for Brownfields revitalization awarded under 
section 104(k) of CERCLA and to grants for establishing or enhancing 
tribal response programs awarded under section 128(a) of CERCLA.
    Federally recognized Indian tribes, other than excluded Indian 
tribes in Alaska, are eligible for Brownfields revitalization grants 
awarded under section 104(k) of CERCLA in accordance with the 
definition of ``eligible entity'' set forth at section 104(k)(1)(G) of 
CERCLA. Alaska Native Regional Corporations and Alaska Native Village

[[Page 67183]]

Corporations, as those terms are defined in the Alaska Native Claims 
Settlement Act, 43 U.S.C. 1601 et. seq., and the Metlakata Indian 
community are included within the definition of entities eligible for 
Brownfields funding under CERCLA 104(k)(1)(H). Although Alaska Native 
Village Corporations and Alaska Native Regional Corporations as those 
terms are defined in the Alaska Native Claims Settlement Act (43 U.S.C. 
1601 and following) are eligible for Brownfields revitalization grants 
awarded under section 104(k) of CERCLA, EPA will not consider an 
intertribal consortium that includes one or more such Alaska Native 
corporations to be eligible for 104(k) grants as an intertribal 
consortium under this document. Those Alaska Native corporations are 
not federally recognized Indian tribes. Groups of Alaska Native Village 
Corporations and Alaska Native Regional Corporations may, however, 
apply for funding in combined applications as ``coalitions'' (i.e., one 
eligible entity that will be accountable for grant funds applies on 
behalf of itself and one or more other eligible entities) under EPA's 
guidelines for applying for SBLRBRA grants.
    EPA has determined that it would be inconsistent with EPA's policy 
and Congressional intent to allow intertribal consortia comprised of 
excluded Indian tribes in Alaska to be eligible for Brownfields 
revitalization grants awarded under section 104(k) of CERCLA. However, 
neither the eligibility provisions of section 128(a)(1)(A) of CERCLA 
nor the legislative history of section 128, indicate that Congress 
intended for Indian tribes in Alaska to be ineligible for grants to 
establish or enhance tribal response programs. EPA will, therefore, 
consider intertribal consortia comprised of Indian tribes in Alaska to 
be eligible for funding under section 128(a) of CERCLA. The rationale 
stated in the September 29, 1999 document for EPA's decision to allow 
intertribal consortia to be eligible for funding also applies to 
funding under section 104(k) and section 128(a) of CERCLA, to the 
extent consistent with Congressional intent: ``EPA believes this 
approach is a practical, reasonable and prudent way to help interested 
Indian tribes strengthen environmental protection when limited funding 
is available to support tribal environmental programs. Indian tribes 
that form an intertribal consortium may be able to use their limited 
resources more efficiently and address environmental issues more 
effectively than they could if each tribe developed and maintained 
separate environmental programs.'' Making grants for Indian tribes 
available to intertribal consortia is consistent with Executive Order 
3175, which encourages agencies to adopt ``flexible policy approaches'' 
and to respect the principle of Indian self-government and sovereignty.
    An organization that characterizes itself as an intertribal 
consortium that does not meet the definition of intertribal consortium 
or the eligibility requirements in this document may be eligible for 
funding under section 104(k) of CERCLA or other EPA grant programs, but 
not as an intertribal consortium under this document. This is because 
some of EPA's grant programs are available to a broad range of 
recipients, such as public or nonprofit private agencies, institutions, 
organizations, and individuals. Thus, an intertribal organization that 
does not meet the definition of an intertribal consortium or the 
requirements of this document nonetheless may be eligible for a grant 
as another type of organization, such as a nonprofit agency. This 
document is not intended to affect the eligibility status of 
intertribal consortia for grants in their capacity as other types of 
eligible organizations. If the organization meets the definition of a 
non profit organization provided in section 4(6) of the Federal 
Financial Management Assistance Act of 1999, Pub. L. 106-107, it will 
be eligible for funding as a non profit organization under section 
104(k)(3) of CERCLA for Brownfields site remediation grants and under 
section 104(k)(6) Brownfields research, training, and technical 
assistance grants. Non profit organizations are not eligible for grants 
to establish or enhance State and tribal response programs under 
section 128(a) of CERCLA.

II. EPA Policy

    The following definition and statement of eligibility requirements 
for awarding grants to intertribal consortia apply to the following 
grant programs: Superfund Cooperative Agreements (section 104(d) of the 
CERCLA); Leaking Underground Storage Tanks (Department of Veterans 
Affairs and Housing and Urban Development, and Independent Agencies 
Appropriations Act, 1999, Pub. L. 105-276, 112 Stat. 2461, 2497-
98(1998)); Brownfields Revitalization (section 104(k) of CERCLA); and 
Tribal Response Programs (section 128(a) of CERCLA).
    Definition: The term intertribal consortium means a partnership 
between two or more federally recognized Indian tribes that is 
authorized by the governing bodies of those Indian tribes to apply for 
and receive assistance under one of the EPA grant programs covered by 
this document.
    Eligibility Requirements for an Intertribal Consortium: (a) An 
intertribal consortium is eligible to receive a grant from EPA under 
the statutes authorizing grants to federally recognized Indian tribes 
listed in this document only if the intertribal consortium demonstrates 
that all members of the consortium (1) meet the eligibility 
requirements for the grant and (2) authorize the consortium to apply 
for and receive assistance in accordance with paragraph (b).
    (b) An intertribal consortium must submit to EPA adequate 
documentation of: (1) The existence of the partnership between 
federally recognized Indian Tribal governments, and (2) Authorization 
of the consortium by all its members to apply for and receive the 
grant(s) for which the consortium has applied.

    Dated: October 29, 2002.
Marianne Lamont Horinko,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 02-28005 Filed 11-1-02; 8:45 am]
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