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PO·LICY ISSUE 

(Notation Vote) 

August 28, 1996 SECY-96-187 

. FOR: The Commissioners 

FROM: James M. Taylor Executive Director for Operations 

SUBJECT: POLICY ISSUES RAISED IN MEETING· WITH 

PRAIRIE ISLAND DAKOTA INDIAN REPRESENTATIVES 

PURPOSE: 

To obtain Commission direction on broad policy issues first identified in an 

April 4, 1995 meeting with representatives from the Prairie Island Dakota 

Indian Community concerning possible cooperative arrangements between the 

Comrnunity and the NRC regarding activities at the Prairie Island Nuclear 

Generating Plant in Welch, Minnesota. 

SUMMARY: 

This paper presents for Commission consideration staff analysis of issues 

raised by representatives of the Prairie Island Dakota Indian Community and 

recommendations for responding to those issues which have policy implications 

on the NRC's relations with Native American Tribal Governments. The staff is 

recommending alternatives for responding to possible cooperative arrangements suggested by the Community. 

BACKGROUND: 

The Prairie Island Dakota Indian Community is located in Welch, Minnesota 

adjacent to the Prairie Island Nuclear Generating Plant, within the 10-mile 

emergency planning zone. The Community has expressed concern about the health 

and environmental impact of its proximity to the plant and most recently with 

the licensee's storage of spent nuclear fuel in dry casks at the site. The 

NRC received a letter dated May 17, 1994 from Denise Homer, Acting Area 

CONTACT: 

Spires Droggitis, OSP 

(301) 415-2367 

Roland Lickus, Region III 

(630) ~29-9660 

\ 

fir-
The Commissioners -2-

Director, Bureau pf Indian Affairs (BIA}, U.S. Department of the Interior 

(DOI..), ~hich invited the NRC and a number of other Federal agencies to attend 

a meeting jointly sponsored by the BIA and the Community to discuss each 

agency's responsibilities and to identify each agency's resources and 

expertise to assist the Community with its concerns at Prairie Island. The 

letter also included a draft Memorandu~ of Understanding (MOU) proposed b~ the 

Community to be signed by the NRC and the several other Federal agencies. 

Because of the short notice provided, the NRC did not attend the June 1, 1994 

meeting. However, the NRC reviewed the draft MOU and provided comments and 

detailed responses to the questions in a letter dated June 17, 1994 

(Attachment 1). The letter responded to the request that each agency prepare 

a written summary of (1) previous agency actions, (2) authorities and 

resources available, and (3} details of activities that should be in a plan of 

action. BIA requested the plan of action to "include collection of baseline 

environmental and health data, monitoring of key environmental and health 

parameters, and monitoring of procedural activities concerning clearances 

required for the dry cask storage or other activities at the power plant." The NRC response to Ms. Homer addressed, among other things, NRC~s regulatory activities at the Prairie Island plant and offered to meet with the Prairie 

Island Dakota Community to discuss issues related to NRC's regulation of the 

Prairie Island plant. 

The NRC received letters dated February 15 and 27, 1995 from Ada E. Deer, 

Assistant Secretary for Indian Affairs, DOI, requesting the NRC to join her 

and seven other Federal agencies2 in signing a proposed MOU to establish "a 

framework for cooperation for the identification and resolution of 

environmental concerns surrounding the Prairie Island Nuclear power plant, and the inclusion of the Tribe in the resolution of such issues." The 

proposed MOU was very similar to the previous MOU proposed in 1994. The NRC 

responded to Ms. Deer on March 27, 1995. The response (Attachment 2} stated 

the .various reasons why NRC did not believe it was necessary to sign the MOU 

and that the concerns of the Community were being addressed through NRC's 

existing regulatory program. 

NRC staff met with representatives of the Prairie Island Dakota Indian 

Community on April 4, 1995. The purpose of the meeting was to _discuss ~he 

Community's proposed MOU and the NRC's March 27, 1995 letter in which the 

staff declined to sign the proposed MOU. The Community representatives expressed disappointment with the NRC response. Region III representatives have had subsequent meetings with Community representatives, including members 

of the Tribal Council, on follow-up issues such as the status of dry cask 

1 Environmental Protection Agency, Federal Emergency Management Agency, National Park Service, as well as BIA an~ NRC. 

2 U~S. Fish and Wildlife Service, Indian Health Service (IHS) and U.S. 

Geological Survey (USGS) were later added. 
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storage activities.3 As a result, Region III believes a positive dialogue has..been esta~lished between the Community and the NRC. Points of contact 

have been established between the Community and the NRC for information 

exchange. Region III has placed the Tribal Council on standard dis"tribution 

for the Prairie Island docket and has been responsive to the Council '·s various 

requests for information. 4 

DISCUSSION: 

In the course of discussions at the April 4, 1995 meeting, the Community representatives asked two questions which pose policy issues for Commission 

consideration. The first issue is whether, in view of its position of not 

signing the multi-agency MOU, NRC would consider entering into a two party general MOU with the Tribal government for the purpose of stating NRC's 

responsibilities relative·to regulating nuclear power and the Prairie Island 

Dakota Indian Community's interest in the health and welfare of. its people. In addition, the general MOU could describe how the two parties would 

communicate and share information. The second policy issue raised at.the 

meeting was whether the NRC would be willing to extend the Commission's 

"Policy on Cooperation With States at Commercial Nuclear Power Plants and 

Other Utilization and Production Facilities" to the Prairie Island Dakota 

Community for the purpose of observing NRC inspections or performing inspections for NRC at the Prairie Island plant. 

3 Siting of additional spent nuclear fuel storage capacity at Prairie 

Island has been controversial. In 1994, the State of Minnesota passed a law, 

which although it approved a limited number of spent fuel casks at the plant site, also required the licensee, Northern·States Power Co., to locate an 

alternative storage site in the county in which the plant is located. Most 

recently, the Prairie Island Dakota Coll)ll1unity and Northern States Power have 

been negot~ating alternatives, which among other things, include financial 

compensation to the Community in exchange for eliminating the alternative 

siting requirement. Any agreement between the parties changing the offsite 

alternative site .requirement would require State legislative approval. 

4

Subsequent to these meetings, the NRC received a letter from Ms. Homer 

dated September 27, 1995 inviting NRC and other Federal agencies to attend ·a 

November 3, 1995 meeting to review the status of activities and actions with 

regard to the multi-agency MOU. Region III staff attended the meeting and 

maintained the NRC position of not signing the multi-agency MOU, but 

continuing to deal with regulatory issues of interest to the Community through the communications channels that have.been established. Most.recently, a 

similar meeting was held on May 23, 1996 at which the Tribal Council continued 

to seek signatures from Federal agencies on a multi-agency MOU. The NRC 

participants discussed dry cask storage issues for the Prairie ·Island Nuclear 

Generating Plant, the offsite spent fuel storage facility licensing process, and NRC regulations and standards. A BIA summary of this meeting is attached 

(Attachment 3). The BIA letter also indicates that BIA will schedule meetings with the regional administrators of agencies who have not yet signed the MOU. 

According to BIA, the multi-agency MOU has been signed by USGS, IHS and BIA. 
. ' 

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These two questions also raise a more fundamental issue regarding the 

desi.rability qf a formal Commission policy on Native American Tribal 

Government relations. The NRC staff has interacted with national Native 

American Tribal organizations such as the National Congress of American 

Indians and the Council of Energy Resource Tribes and has dealt with Tribes on 

specific issues on a case-by-case basis. In addition, Conunission regulations for the licensing of a high-level radioactive waste repository (Part 60), a 

low-level radioactive waste disposal facility (Part 61) and a monitored 

retrievable storage installation (Part 72) have provisions for Native American 

Tribal participation. While the NRC has had these interactions and provisions for Native American Tribal Governmental participation, the NRC has not issued 

formal policy or guidance for staff interactions with Native American Tribal 

Governments. The NRC staff notes that Federal agencies, such as the 

Department of Justice (DOJ), the Department of Energy (DOE) and the 

Environmental Protection Agency (EPA), have policy statements which define 

those agencies' relationships with Native American Tribal Governments. 

Attached are copies of DOJ's policy (Attachment.4), DOE's policy (Attachment 5) and EPA's policy (Attachment 6). Both the DOJ and DOE policies include 

President Clinton's Executive Memorandum, dated April 29, 1994, which outlines 

principles that define the Federal Government's responsibility to ensure that 

agencies operate within a government-to-government relationship with all 

Federally-recognized Tribal governments. 

The NRC's responsibility with respect to -Native American Tribal Governments 

under the "Indian trust doctrine," which has been interpreted by the Supreme Court over much of the 20th Century as directing federal agencies to act with 

scrupulous regard in dealings with the Native American Tribes, does not 

presuppose that the NRC or any other federal agency must develop a formal 

policy on Native American Tribal relations. However, this doctrine does 

create a strong basis for the general proposition that Federal agencies should 

accord the same opportunities for participating in an agency's regulatory 

process to the Indian Tribes that have been extended to the States generally. At the same time, legitimate reasons may exist for not entering into MOUs or 

other less formal arrangements with Tribes regarding NRC-licensed activities, 

for example, if the Tribe does not meet the criteria necessary for it to 

effectively perform inspections or if the. NRC has decided not to enter into a 

similar agreement with a State. 

General/Umbrella MOUs 

While the NRC has no formal Native American Tribal policy, the Commission 

has developed policy and programs for intergovernmental relations with State 

governments. In the mid 1970s, because of increasing State interest in the 

licensing of nuclear power plants, there was a perceived need to broaden the 

basis for formal cooperative agreements with States beyond that of water 

quality MOUs and Section 274b. Agreements (the Agreement State program). As 

a result, general or umbrella MOUs were developed and signed with a number 

of States (both Agreement and non-Agreement States) including Washington, Oregon, Indiana, New York, Illinois and Pennsylvania. These MOUs were 

intended to provide for principles for cooperation and form a basis for 

subsequent detailed subagreements between the parties in areas of mutual 
. ' 

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interest. For example, NRC and the State of Oregon signed a subagreement in 

1980-which· al1owed the State to have a resident inspector at the Trojan nuclea~ power plant. Although the Commission recently approved an MOU between 

the NRC and the Pennsylvania Department of Environmental Resources on 

cooperation related to the remediation of radioactively contaminated sites in 

Pennsylvania, the Conunission has also chosen not to pursue such general or 

umbrella MOUs. For example, the Conunission in 1990 informed Ohio Governor 

Richard Celeste that "the Commission has decided not to pursue establishment 

of a generic MOU" in response to Ohio's request for such an MOU. Part of the 

Conunission's rationale for this decision was that the fundamental elements of 

a general MOU were already being implemented with the State of Ohio as a 

result of the Commission's policy on cooperation with the States. 

Policy Statement on Cooperation with States 

The Commission's policy on cooperation with the States was adopted in 1989 

(54 FR 7530) and amended in 1992 (57 FR 6462) to include adja~ent States 

(neighboring States located withfn the 10-mile emergency planning zone of 

the plant). The policy sets out the general framework for cooperating with 

States concerning NRG-licensed production or utilization facilities by routinely providing information to the Governor-appointed State Liaison 

Officers and responding to requests from States in a timely manner. In 

addition, this policy establishes the ground rules for qualified State 

representatives to· observe NRG inspections and lays out· the general guidance for negotiating an MOU which would allow qualified host States to perform inspections for and on behalf of the NRC. A host State is defined in the 

policy statement as a State in which the NRC-licensed facility is located. 

Under the policy, adjacent States are only given the opportunity to observe 

NRC inspections. Whereas a number of States-have signed protocols or have 

made other arrangements to observe routine and special NRC inspections at 

nuclear power plants, only the State of Illinois has signed MOUs with the 

Commission pursuant to the policy on cooperation with the States. The first 

MOU, approved on June 7, 1990, allows Illinois State inspectors to perform ASME code inspections at the nuclear power plants located in Illinois. The 

second MOU, adopted on December 18, 1990, permits the participation of 

Illinois resident engineers in NRC inspections at the riuclear power plants in 

Illinois. 

Several States have a presence at nuclear power plants without entering in 

formal arrangements with the NRC. For example, the States of Maine and New 

Hampshire have resident inspectors at Maine Yankee and Seabrook, respectively. The States of Vermont and New Jersey and the Commonwealths of Massachusetts 

and Pennsylvania have had non-resident nuclear engineers assigned to follow 

activities of the nuclear power plants in those States. 

Under the Conunission's policy, a State must satisfy certain requirements to 

observe NRC inspections and/or inspection entrance and exit meetings. The 

State representative must be knowledgeable in radiological health and safety 

matters and, among other things, have made advance arrangements with the 

licensee for site access training and badging, and must satisfy escort and 

confidentiality requirements. A copy of a draft protocol for State 
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observation is attached (Attachment 7). An adjacent State observer must abide 

by the.same protocol as a host State. The adjacent State must communicate its 

request for observation to the Regional Administrator for the region in which 

the facility is located and to the host State. In addition, if a host State 

and an adjacent State request observation of the same inspection, the Regional Administrator will make the final ·determination on the number of State 

observers who may attend the inspection. 

With regard to entering into an MOU for the purpose of performing inspections for and on behalf of the NRC, a State is required to meet certain NRC 

requirements. Under the policy, a State that wishes to perform inspections for and on behalf of the NRC must propose a program that: (l) recognizes the 

NRC as having exclusive authority to regulate the radiological and national 

security aspects of the construction and operation of nuclear power plants, 

except for certain.authority over air emissions granted to States by the 

Clean Air Act; (2) is in accordance with Federal standards and regulations; (3) specifies minimum education, experience, training, and qualifications· requirements for State representatives which are patterned after those of NRC 

inspectors; (4) contains provisions for the findings of State representatives 

to be transmitted to NRC for disposition; (5) would not impose an undue burden 

on the NRC and its licensees and applicants; and (6) abides by NRC protocol 

not to publicly disclose inspection findings prior to the release of the NRC 

inspection report. 

Apolication of the Policy to Native American Tribal Governments 

As currently written, the Conunission policy does not apply to Native American 

Indian Tribes. The language of the policy itself is limited to cooperation with States. There is no mention of other entities such as Native American 

Indian Tribes or local governments in the policy. In addition, the background discussion published with the policy statement indicates that the statutory basis for the policy stems, in part, from §274i of the.Atomic Energy Act of 

1954, as amended (AEA). Section 274 of the AEA contains provisions regarding NRC interactions with State governments such as the Agreement State program. Section 274 does not contain any reference to NRC's activities with Native 

American Tribes. Accordingly, the policy as written only applies to 

activities with States. 

As noted above, the Indian trust doctrine supports the principle that the .NRC, 

as a federal agency, should accord the same opportunities to Native American 

Tribes that have been extended to the States, for example, routinely providing information to a Tribe on activities which may affect it and responding to 

Tribal requests in a timely manner. In addition, S~ction 16lf of the AEA 

provides the Commission the authority to utilize or employ the services or 

personnel of any Government agency or any State or local government, or· 

voluntary or uncompensated perso·nnel, to perform such functions on its behalf 

as may appear desirable. This could include Native American Tribal 

Governments and could serve as the basis for cooperative agreements with 

qualified Tribes to observe or perform inspections. However, there is no 

requirement that the Commission enter into such agreements if a legitimate basis exists for declining to do so. 
The Conunissioners -7-

OPTIONS: 

ISSUES~· The staff has identified three issues for Commission consideration 

as a result of questions raised by the Prairie Island Dakota Indian Community. The staff has also outlined various options and provided pros and cons in 

addressing these issues. 

ISSUE I 

The first issue is whether the Commission should enter into a general MOU with 

the Prairie Island Dakota Indian Community. 

Options: The staff has identified two options in response to Issue I. 

1) The Commission could decline to enter into a general MOU with the 

Community. Based on the contacts that have ·been established with the 

Community, and the· information that has been provided such as inspection and 

effluent reports, meeting notices, general correspondence and enforcement 

notifications, it could be argued that a general MOU would serve no purpose and would only be documenting what has already been put in place. A letter 

documenting what has been put in place and committing to continue a 

cooperative relationship with the Community could be a substitute for a formal 

MOU. . 

Pro: • Would not require any significant additional resources than are 

already conmitted to this effort. 

• Would be consistent with Commission decision not to enter into a 

general MOU with Ohio to document what has been put in place. 

• A general MOU would not provide the Community with more than is 

already in· place. 

Con: •Would deny the Community's request for a· formal agreement with the 

NRC that recognizes the Community's concerns regarding the health and 

safety of Community members and with its desire to be better informed 

of regulatory matters. 

• Could be perceived as not being sensitive to Native American Tribal 

relations. 

• May be seen as inconsistent with Federal policy and legal doctrines 

applying to Native American Tribal relations. 

·2) The Commission could agree to negotiate a general MOU with the Community. The MOU would be modeled after previous general MOUs that have been enacted 

with States. · 

Pro: • The MOU would be approved by the Commission and could provide the 

basic policy direction from the Commission on Native American Tribal 

relations. 
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• Would display a commitment to cooperate with the Indian Community. 

~Would.be consistent with generic MOUs that have.been previously signed with a number of States. 

Con: •Would be inconsistent with the.Commission decision not to enter into a 

generic MOU with the State of Ohio. 

• Would likely set a precedent with Government-wide implications for 

other Federal agencies and programs, since NRC is only one of several 

agencies with whom the Community wishes to enter into an MOU. 

• Would require additional resources to negotiate an MOU. 

• Would likely only document what has already been put in place. 

ISSUE 2 

The second issue is whether the same opportunities provided in the 

Commission's Policy Statement on Cooperation with States.concerning observing 

or performing inspections should also be extended to the Prairie Island Dakota. 

Indian Community. 

Options: The staff has identified two options for the Commission's 

consideration of Issue 2. 

1) The Commission could decline to offer these inspection opportunities provided in the current policy statement .to the Prairie Island Dakota Indian 

Community. 

Pro: • No additional expenditure of NRC resources. 

• No impact on licensee resulting from additional observations or 

inspections. 

Con: •May be inconsistent.with the proposition that ·under the Indian Trust 

Doctrine, unless there is a basis to do otherwise, a Federal agency should accord the same opportunities to Native American Tribes as 

those that have been extended to the States~ 

• May be perceived as inconsistent with the NRC's openness principle of 

good regulation. 

2) The Commission could agree to offer the same opportunities provided in 

its policy statement on Cooperation with States concerning observation of NRC 

inspections to the Prairie Island Dakota Indian Community on the basis of its 

status as a Federally-recognized Native American Indian Tribe whose 

reservation is located within the 10-mile emergency planning zone of the 

Prairie Island nuclear power plant (the plant is not located within the Tribal 

boundaries). This would mirror the provision of the policy statement on 

cooperation with the States as it applies to adjacent States. Under Federal 
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law, Indian Tribes are recognized as domestic dependent nations retaining sovet:eign pow~rs, except as divested by the United States. Therefore, even 

though·a Tribe is located within the boundaries of a State where a facility is 

located, it is appropriate to treat it as "adjacent 11 to the facility because 

of its sovereign status that does not derive from State law. The Prairie 

Island Dakota Indian Community representatives would be required to meet the 

same requirements that apply to States as spelled out in the policy. 

Pro: • Would. be consistent with the proposition that, under the Indian Trust 

Doctrine, unless there is a basis to do otherwise, NRC should accord 

the same opportunities to Native American Tribes that have been 

extended to the States. · 

• Would display NRC commitment to cooperate with the Community. 

• Would provide the Community with information on plant operations .and 

NRC's regulatory program at the plant. 

• Would be consistent with NRC's policy on cooperation with States as it 

applies to adjacent States. 

Con: •May establish an incremental burden on the NRC and the.licensee to 

handle additional observers. 

ISSUE 3 

The third issue is whether NRC should pursue a formal policy on relations with 

Native American Tribal Governments who may be affected by NRC regulatory activities. · · 

Options: The staff has identified two options for Commission consideration 

under Issue 3. 

1) The Commission may decide that it is not necessary to develop a formal 

policy and that NRC should continue to deal with issues that may be raised 

with Native American Tribes on an ad hoc basis. 

Pro: • No initial investment of NRC resources. 

• Ad hoc approach has worked in the past. 

• Would not undertake new initiative in times of diminishing resources. 

Con: • Continues a practice of dealing with Native American Tribal 

Governments on an ad hoc basis, which may be more resource intensive 

in the long term if the number of requests to establish formal 

arrangements increases. 

• Could be perceived as not being sensitive to Native American Tribal 

relations. 
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• Not consistent with other Federal agencies, such as DOE and EPA. 

2) Th·e Commission could adopt a pol icy similar to that· adopted by other 

Federal agencies. In this case, the staff would prepare a draft policy for 

Commission consideration. If approved by the Commission, the draft policy would be issued for public comment. 

Pro: • An NRC policy on Native American Tribal Governments would be 

consistent with what other Federal agencies have adopted. 

• A policy would provide a framework for dealing with Native American 

Tri"bal interest in NRC's regul~tory programs and provide direction to 

NRC staff involving future contact with Tribal governments. 

•Would be consistent with the spirit of established Federal policy and 

legal doctrines (Indian trust) that apply to relations between Native 

American Tribal Governments and Federal Agencies. · 

• In the long run, resources may be saved by minimizing the need for 

the ad hoc treatment of Native American issues. 

• Would formally display NRC commitment to cooperation with Native 

American Indian Governments. 

Con: • Would require some initial expenditure of resources to develop policy. 

• Would undertake new initiative in times of diminishing resources. 

• NRC can still deal cooperatively with Native American Tribal · · Governments even in the absence of a formal policy. 

Another issue identified during the staff review of this matter was whether 

the Commission should pursue legislation to amend the AEA to allow the 

Commission to enter into Section 274b. agreements with Native American Tribes. 

Section 274 of the AEA does not now provide NRC with the statutory authority 

to create a Tribal agreement program. Such agreements would allow the Tribal 

Governments to regulate certain uses of radioactive material on its lands 

similar to the Agreement State Program. Neither the Prairie Island Dakota 

Community, nor any other Native American Tribe, has requested such authority. The staff is not aware that problems have. been identified with NRC regulation 

on Indian lands. In addition, the cost of developing a radiological safety regulatory capability may not be practicable given the very small amount of 

regulated activity occurring on Tribal lands. Having Agreement State-type authority would not provide the Indian Community with any additional insight into the operations at the Prairie Island Nuclear Plant or the storage of 

spent fuel, which appear to be of most concern to the Community. Drafting, proposing and supporting such legislation would be very resource intensive. 

Assuming Native American Tribal Governments were interested in pursuing such 

agreements, additional resources would be required to process such agreements and, once fn place, to periodically assess the adequacy and compatibility of 
-----------------

The Commissioners -11-

the Tribal program. For all of the above considerations, the staff does not 

cons.ider this.approach as viable. 

RESOURCES: 

The recommendations in this paper can be implemented within existing 

resources. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objection. 

RECOMMENDATIONS: 

1. In response to the particular requests fr.om the Prairie Island Dakota 

Indian Community, the staff recommends that the Commission direct the 

staff to inform the Community that the Commission does not wish to 

negotiate a two-party general MOU with the Community at this time 

because the elements of such an MOU have already been put in place by the NRC staff. 

2. On the question of whether the inspectio'n opportunities provided in the 

Commission's policy on cooperation with States at commercial nuclear 

power facilities and other production or utilization facilities should 

be offered to the Prairie Island Dakota Indian Community, the staff 

recommends that the Community, similar to an adjacent State, be allowed 

to observe NRC inspections at the Prairie Island Nuclear Power Plant if 

the Community meets the same NRC requirements which an adjacent State 

must meet. 

3. The staff does not recommend that the Commission develop a formal policy 

on cooperation with Federally-recognized Native American Tribal 

Governments at this time. The staff does not believe that the 

expenditure of resources to develop such a policy is warranted and is 

concerned with undertaking a new initiative in times of diminishing 

resources. The staff will continue to address Native American issues on 

a case-by-case basis following the principles that define the NRC's 

responsibility to ensure that the NRC operates within a government-togovernment relationship with all Federally-recognized Tribal governments with an interest in NRC-licensed activities. This practice would be 

based on the recognition of the sovereign status of Federally-recognized Tribes and would be consistent with the President's directive that 

agencies undertake their activities affecting Native American Tribal 

Governments in a knowledgeable and sensitive manner. 

4. Note that the need for an Indian Policy statement is a "related issue" 

addressed in the Directional Setting Issue (OSI) paper #4. A "related 

issue" is one whose implementation details will be addressed after the 

Commission's decision on the overall OSI. · 
----------------------------------------------

The Commissioners -12-

5. Note that the staff will inform the Bureau of Indian Affairs of the U.S. ~ Departm~nt of the Interior of the Commission decision. 

Attachments: 

1. Letter from J.M. Taylor to Ms. Denise Homer, dated 6/17/94 

2. Letter from J.M. Taylor to Ms. Ada E. Deer, dated 3/27/95 

3 •. Letter from Larry Morrin, BIA, to J. Taylor, dated 8/7/96 

4. Federal Register Notice, Policy on Indian Sovereignty, DOJ, 

dated 6/10/96 

5. Memorandum for All Departmental Elements from H.R. O'Leary, DOE, 

dated 5/18/94 

6. Memorandum to All Employees from Carol M. Browner dated 3/14/94 

7. Exhibit 1, Appendix A ~'Protocol Agreement for State 

Observation of NRC Inspections" 

Commissioners' comments or consent should be provided directly to the 

Office of the Secretary by c.o.b. Thursday, September 12, 1996. 

Commission staff office comments, if any, should be submitted to the 

Commissioners NLT September 5, 1996, with an information copy to SECY. 

If the paper is of such a nature that it requires additional review and 

comment, the Commissioners and the Secretariat should be apprised of when 

comments may be expected. 

DISTRIBUTION: 

Commissioners 

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. UNITED STATES ·. :•"]1//>¥.\ ... .•• c . 0 ; . . . ., : . ~ NUCLEAR REGULATORY COMMISSION 

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••••• 

WAIHINQTON, D.C. all DC101 

June 17, 1994 

Ms. Denise Homer, Acting Area Director 

Url'lted States Department of the Interior 

Bureau of Indian Affairs ~inneapol1s Area Office 

331 South 2nd Avenue 

Minneapolis, Minnesota 55401-2241 

Dear Hs. Homer: 

The Nuclear Regulatory Conrnission (NRC) received your May 17, 1994, letter 

discussing the proposed Memorandum of Understanding (MOU) between the Prairie 

Island Dakota Community and a number of federal agencies, including the NRC. 

We previously responded to your letter regarding our attendance at a meeting that was held on June l, 1994, at the Dakota Conrnunity Center. This letter 

addresses the concerns stated in your Hay 17, 1994, letter and some of the 

issues discussed in the MOU. 

You stated in your letter that the Prairie Jsland Dakota Co1m1uni~y is 

concerned about the health and environmental impact of being located adjacent 

to the Prairie Island Nuclear Generatihg Plant and that this concern is 

heightened because of the proposal to store spent nuclear fuel in dry casks at 

the site. In addition, the Prairie Island Dakota Council is asking for 

assistance to ensure that the proposed fuel storage and normal plant operation comply with Federal environmental regulations. You have 1sked that each 

agency prepare a concise written su!Mlary of (1) previous agency actions, (2) authorities and resources available, and (3) details of activities that should 

be in a plan of action. You suggest that this plan would include collecting baseline environmental and health data, monitoring key environmental and 

health parameters, and monitoring procedural activities concerning clearances 

required for the dry cask storage or other activities at the power plant. 

With respect to previous agency actions regarding NRC regulations on 

environmental impact of the Prairie Island site. fn May 1973, the United 

States Atomic Energy Conrnission (NRC's predecessor) issuiir"a Final 

Environmental Statement related to the proposed issuance of an operating license for the Prairie Island plant. In the Final Environmental Statement, 

the staff concluded that•1t was appropriate to allow the continuation of 

construction permits and the tssuance of operating licenses for the startup and operation of the Prairie Island plant. 

On July 28, 1992, the NRC issued an environmental assessment (EA) and a 

finding o; No Sign_ificant Impact for the planned independent spent fuel 

storage insta111tion (JSFSJ) at the Prairie Island plant. Jn the EA. the 

staff concluded that the radiation dose from·JSFSJ operation would be very small, and it would not significantly increase what the residents are already exposed to from natural background radiation. A sU1m1ary of the conclusions 

from the July 2~, 1992, EA is enclosed. 

AlTACHMENT 1 
Hs. Denise Homer - 2 -

After thoroughly reviewing the 11censee app11catfon, the HRC concluded that 

the dry cask storage activities could be conducted without endangering the 

health and safety of the public. On October 19, 1993, the NRC issued a Safety Evaluation Report and Material License Ho. SHM-ZS06 to Northern States Power 

Company (NSP) to store spent fuel from the Prairie Island plant 1n an JSFSJ on 

site. 

The Minnesota Agencies and the Prairie Island Mdewakanton Sio~~ Indian 

Corrmunity (The Conmunity) filed pettttons to intervene against HSP's plans to 

build an JSFSI. On Harch 8, 1991, the Minnesota Agencies and The Co1m1unity agreed to withdraw their petitions to intervene. Jn return, NSP and the NRC 

agreed to give these organizations coptes of 111 correspondence re1ated to 

spent fuel storage at Prairie Island. The NRC also agreed to allow the 

Minnesota Agencies and The Co111T1un1ty to present their views concerning the 

ISF'Sl. 

Your letter addressed a plan of action that would entail the collection of key baseline environmental and health data. from NRC's perspective, such data 

would include radiological environmental monitoring results. There are 

numerous types of radiation measurements that are made in the vicinity of 

nuc1ear power facilities. For an JSFSJ, the most appropriate type of 

monitoring would include the use of thermoluminescence dosimeters (TLDs). These devices measure ambient gamma radiation levels. Currently, NRC has 40 

such devices stationed around the Prairie Island site. These are exchanged quarterly by the State of Minnesota under contract to the NRC and·are sent to 

an NRC laboratory for processing. 

Under the existing Cooperative Agreement with the State of Minnesota, an 

appropriate number of stations wi11 be added to the NRC-owned TLD network at 

the ·Prairie Island site. The additional stations would be 1n·the unrestricted· 

area proximate to the ISFSI currently licensed under 10 CFR Part 72. The NRC . Cooperative Agreement with the State of Hfnnesota is scheduled to be renewed 

during the latter part of calendar year 1994, to be effective January l, 1995. 

The NRC plans to work with the State, during the latter part of 1994, regarding the addition of these new locations. 

The data collected from the TLD network surrounding the Pr1irie Island site 

are documented in NUREG-0837,·•NRC TLD Direct R1d1at1on Monitoring Network.• 

lhe NRC can place the Da~ota Co11111untty Council on the distrtbutton list for 

this quarterly NRC report •. Jf desired, the NRC can also place the Dakota 

Community Council on its distribution list for the effluent release (HUREG/CR2907, •Radioactive Materia1s Released From Nuclear Power Plants, Annual Report [Year]•) and population r1diation dose reports (NUREG/CR-2850, •oose 

Commitments Due to Radioactive Releases From Nuclear Power Plant Sites tn 

{Year)"), which are prepared annually for the NRC and published by the HRC. 

These reports would provide the Dakota Col!ITlunity Council with some perspective regarding the environmental impact of effluent releases from the Prairie 

Island plant. 
Ms. Denise Homer - 3 -

The HOU addresses the initiation of an ep1demio1og1cal survey. The NRC does 

not see a need for an epidemiological study of the Prairie Island site area 

for _the. fo11o~fog reasons: · 

• A comprehensive study of cancer 110rt1lity, one of the principal health 

effects of concern with regard to radiation exposure, was recently completed by the National Cancer Institute. This study, •cancer in 

Populations L1v1ng Near Nuclear Fac111ttes,• was published 1n 1990. 

With regard to Prairie Island, the report stated that 

·•The number of cancer deaths were not la1e and there were few 

statistically significantly 1l1v1ted RRs relative risks] comparing the study and control areas after startup [of the Pr1irte Island 

plant]." 

• The population ta be studied is relatively small, thus confounding the 

ability to draw meaningful conclusions from an epidemio1og1c study. 

• The JSFSI is not expected to release effluents under normal operating conditions. 

Should another Federal agency elect to undertake an epidemiological study, the 

NRC could prcvide supporting radiological data 1n the form of the reports referenced above. 

~~~h resp~ct t~ emergency preparedness (EP), as part of its regulatory responsibility, the NRC·detennined that there is reasonable assurance that 

adequate measures can be taken to protect the public 1n the event of a 

radiological emergency at the Prairie Island site. The NRC bases this 

determination· on ;ts own assessment of onsite (licensee) EP plans and FEHA's 

assessment of offsite (State and local) EP plans. An HO~ between HRC and FEHA 

explains each agency's roles and responsibilities in the area of EP. 

The Prairie Island plant has an NRC-approved EP plan that has been 

demonstrated in numerous exercises. The State and local EP plans around the 

plant have been approved by FEMA and also demonstrated in numerous exercises. 

The Dakota Community 1s located inside the 10-mile plume phase Emergency Planning Zone (EPZ) surrounding the plant and 1s fncluded fn the offs1te EP 

plans. • 

Cask storage of spent fuel onsite at the Prairie Island plant does not 

represent a significant new hazard to be addressed by the onsite or offs1te EP 

plans. Minor changes in the ons1te plan will probably be needed to address 

the storage casks; no change in offs1te plans should t~ necessary. Any change the Dakota Community wants to make 1n its level of involvement in the offstte 

EP plans should be worked o~t· with the licensee, the State, local governments, and FEMA. FEMA provides assistance to State and local authorities in 

developing and implementing offs1te plans. 
Ms. Denise Homer 

I trust this ·information is responsive to The Comunity's concerns. As stated 

earlier, we would be pleased to meet with the Prairie Island Dakota Conmunity 

to discuss issues relating to our regulation of the Prairie Island plant. The 

Conmission. recogn1z1ng and being respectful of their sovereign rights, 1s 

coJ11nitted to continue working with the Prairie Island Dakota Comnunity on a 

government-to-government basis. Co1m1tssion representatives have 1net with the 

Prairie Island Comnunity Council in the past few years regarding the Counctl•s 

concerns with NSP's plan to construct an ISFSI at its Prairie Island nuclear 

plant site. It ts within the spirit of the principles of cooperation in 

President Clinton's Executive Order dated April 29, 1994, ·that we will 

continue to be open to discussions regarding The Conmunity•s concerns, and 

clarifying the NRC's regulatory responsibilities accordingly. We will 

continue to review the draft HOU tn preparation for any future interactions. 

If you have ~ny questions regarding th1s response, please contact John 

Zwolinski, our Assistant Director for Region JIJ Reactors at (301) 504-1335 or 

Marsha Gamberoni, the Prairie Island Project Manager, at (301) 504-3024. 

Sincerely, 

Orlglna' s1gned t>y Jaii't; M. Taylor James H. Taylor Executive Director 

for Operations 

Enclosure: Summary of ~SFSI Environmental Assessment 

cc: Hr. Roger 0. Anderson. Director 

Licensing and Management Issues 

Northern States Power Company 414 Nicollet Mall 

Minneapolis. Minnesota 55401 

• 
Enclosure 

_SUMMARY OF ISFSI ENVJRONflNTAL ASSESSMENT (JULY 28, 1992) 

No significant construction tmpacts are anttctpated. Thi acttvtttes w111 

affect only a very Slla11 fraction of the land area at the Prairie Island 

Nuclear Generating Plant. With good construction practices, the potentials for fugitive dust, erosion, and aofse tmpacts, typical of tht p1anned construction activities, can be kept to tnstgnificant levels. . . . .. 

The primary •xposure pathway associated wtth the ISFSI op1r1t1on 1s dir1ct 

radiation of site workers and nearby residents. The radiological impacts from liquid and gaseous effluent during nonnal operation of the JSFSI fl11 

within the scope of impacts from licensed reactor operations. 

The dose to the nearest resident from ISFSI operation ts about 0.08 

mrem/year, and when added to that of the operations of beth reactor units, is much less than ZS mrem/year, as required by 10 CFR 72.104. The 

collective dose to residents within l to 2 miles of the ISFSI is 0.037 

person-rem. This is ·compared to a collective dose due to natural 

background radiation of 140 person-rem for the same population. Occupational dose to site workers, both directly and indirectly involved in 

JSfSI activities, is 1 small fraction of the total occupational dose 

commitment. 

The gamma dose to an individual at the controlled area boundary from a loss 

of confinement accid~nt has been calculated to be 0.~4 rem, which is well 

within the 5-rem criterion in 10 CFR 72.106(b) and less than the EPA 

Protective Action Guide of 1 rem. 

No significant nonradiological i1111>acts are expected during operation of the 

ISFSI. The heat given off by the casks has been determined to cause an 

insignificant amount of cask-induced fogging. No other effects are 

anticipated in the 1mnediate vicinity of the ISFSI. 

The proposed action has been reviewed relative to the requirements fn 

10 CFR Part 51, and based on this assessment, the NRC has determined that 

issuance of a materials license under 10 CFR Part 72 authorizing storage of 

spent fuel at the Pratrfe Island ISFSI Nill not significantly affect the 

quality of the environment. Therefore, an environmental impact statement 

is not warranted and, pursuant to 10 CFR 51.31, a Finding of No Significant Impact is appropriate. 
UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

WASHINGTON, D.C. 2055~1 

March 27, 1995 

- . 

Ms. Ada E. Deer 

Assistant Secretary-Indian Affairs 

U.S. Dept. of the Interior 

Washington, D.C. 202~0 

Dear Ms. Deer: 

I am responding to your letters of February 15 and 27, 1995, to the thainnan 

in which you requested he sign the proposed Memorandum of Understanding regarding the Prairie Island Dakota Indian tormnunity (the MOU). 

The Community and the Bureau of Indian Affairs drafted the HOU for seven 

Federal agencies (including the NRC), su11111arizing what assistance the Dakota 

Indian Community sought from each. The draft HOU outlines the tasks and 

responsibilities of each respective agency and notes how each agency's 

resources and expertise could be used to further benefit the Community. 

As you know, NRC representatives met with Dr. Catherine Vandemoer of your office on February 21, 1995 regarding the proposed MOU. In that meeting, we 

explained our views pertaining to the HOU. Specifically, during the meeting, 

we outlined our responsibilities and discussed the issues raised in the HOU, 

as we had previously done in our letter of June 17, 1994 to Ms. Denise Homer, Acting Area Director of the Bureau of Indian Affairs Minneapolis Area Office. 

I am enclosing that letter for your information. 

We have reviewed the most recent version of the proposed HOU and, in addition 

to the comments already provided in our June 17, 1994 letter, have the 

following comments. 

The Atomic Energy Act of 1954, as amended, establishes a framework for 

regulation of the nation's commercial nuclear power industry~ The NRC 

regulates the Prairie Island nuclear power plant in such a manner as to 

adequately protect the health and safety of the public, including the Dakota 

Indian Community. Within this framework and being mindful of the sovereign rights of the Indian people, the NRC has been and remains fully committed to 

working with the Prairie Island Dakota Indian Conmunity on a government-togovernment basis. For example, our staff has met with the Prairie Island 

Community Council in the past few.years to discuss the Council's concerns 

about building an independent spent fuel storage installation (ISFSI} at the 

Prairie Island nuclear plant site. In the spirit of cooperation encouraged in 

President Clinton's Executive Order dated April 11, 1994, and the President's 

Memorandum dated April 29, 1994, we will continue to be open to discussions 

with the Community regarding its concerns. 

However, it is important to recognize that Public Law 101-508, the Omnibus 

Budget Reconciliation Act of 1990, as amended, requires the NRC to recover 

approximately 100 percent of its budget authority from fees assessed to 

applicants and licensees. The Prairie Island Dakota Indian Community is 

ATTACHMENT 2 
Ms. Ada E. Deer -2-

neither.an·applicant nor a licensee; thus, staff time expended on nonregulatory act1vities would not be recoverable under the existing fee recovery 

system. The NRC understands that a general trust relationship exists, and the 

government (including its various agencies) has a broad fiduciary obligation 

to act in the best interest of the Native Americans. The HRC intends to 

continue to sa~isfy this obligation by executing its public health and safety responsibilities under applicable statutes and procedures. 

For your information, in carrying out its responsibilities to protect the 

health and safety of the publicJ including the Cormtunity, NRC undertook a 

rigorously careful review of the lSFSI design and has closely overseen the 

steps toward its safe operation. Also,, NRC is providing environmental 

monitoring at the Prairie Island site,· including the JSFSI. In addition·to 

the licensee's environmental monitoring program, HRC conducts an independent, confirmatory environmental monitoring· program through a cooperative agreement with the State of Minnesota. As part of that independent program, we 

currently have 42 thermoluminescent dosimeters (TLDs} stationed around the 

site to measure any levels of direct radiation. In December 1994, two of 

those TLDs were specifically located to monitor the ·portion of the- site which 

includes the ISFSI, cur.rently licensed under 10 CFR Part 72. 

As part of our earlier review of the ISFSI, on July 28, 1992, the NRC issued 

an environmental assessment (EA) and a Finding of No Significant Impact for 

the ISFSI at the Prairie Island plant. In the EA, the staff concluded that the 

radiation dose from ISFSI operation would be very small, and it would not 

significantly increase what the residents are already exposed to from natural 

background radiation. 

With respect to emergency preparedness (EP), as part of its regulatory responsibility, the NRC determined that there is reasonable assurance that 

adequate measures can be taken to protect the public in the event of a 

radiological emergency at the Prairie Island site. The NRC based this 

determination on its own assessment of onsite (licensee) EP plans and the 

Federal Emergency Management Agency's (FEMA) assessment of offsite (State and 

local) EP plans. 

As stated in our June 17, 1994 letter, the dry cask storage of spent fuel at 

the Prairie Island plant does not present a significant new hazard to be 

addressed by the licensee's onsite or offsite emergency preparedness (EP) plans. Minor changes have been made to the onsite plans to address the . storage casks, and no changes in the offs1te plans are needed. Any change the 

Dakota Indian Community wants to make in its level of involvement in the 

offsite EP plans should be discussed with the licensee, the State, local 

governments, and FEMA. One of FEMA's roles is to help State and local 

authorities develop and implement offsite plans. 
Hs. Ada E. Deer -3-

It is for the reasons stated above that we believe NRC's signature of the MOU 

is not.·necessary and that the concerns of the Dakota Indian Co11111unity are 

being addressed through our current regulatory program. We appreciate the 

opportunity to meet with your representatives and to provtde the information 

sunrnarized a~~ve. If you or your staff have any questions, please contact Ms. 

Maria lopez-~tin, at (301)-415-2598. · . 

Enclosure: 

As stated 

Sincerely, 

James H. Taylor Executive Director 

for Operations 

__J 
United States Department of the Interior 

BUREAU OF INDIAN AFFAIRS 

MINNEAl'OUS AREA oma 

331 SOUTH 2ND AVENUE • MINNEAPOUS, MINNESOTA SS401·2241 

l!J llD'LY REFER TO: 

Environmental Service• 

James 'l'aylor 

Executive Director Per Operation• 

.u.s. Nuclear Regulatory Ccmmia11ion 

Washington, D.c. 20046-0001 

Dear James Taylor: 

AUG 0 7 1996 

on May 23, 1996, the most recent meeting occurred of the parties involved with 

the Memorandum of Under11tanding (KOU) concerning the environmental health cf 

the Prairie Island Dakota COmmunity (Community). Hinutee from the meeting 

are enclosed for your review and follow-up action. 

The next MOU meeting that was-originally •cheduled for Thursday, August 22, 

1996, has been postponed indefinitely. 'l'he Community Council has decided to 

seek as many of the signatures on the KOU as ie possible before scheduling the 

next meeting. We will notify you in writing when the next meeting has been 

scheduled, probably within the next three months. 

Also, be aware that for the involved agencies who have not yet signed the MOU, 

we are scheduling meetings with regional administrators to discuss their 

signature of the MOU. 

If there are questions, the contact is Herb Nelsen, Environmental Services, at 

telephone: 612-373-1143 and FAX: 612-373-1186 or Heather Westra from the 

Community Environmental Services, at 1-800-554-5473. 

Sincerely, 

Enclosures 

ATIACHMENT 3 
9:00 AM 

9:15 AM 

9:30 AM 

9:45 AM 

10:00 AM 

11:00 AM 

11:15 AM 

12:00 AM 

1:00 PM 

1:45 PM 

2:30 PM 

3:00 PM 

3:15 PM 

POSTPONED 

AGENDA 

Meeting For Memorandum of Understanding 

August 22, 1996 

at the Prairie Island Cmnnninity Center 

Opening Prayer/Invocation - CUrtis campbell, Sr. 

President, Tribal council 

Welcome and Xntroductions 

Purpose of Meeting - Robert Grey Eagle 

Signing Ceremony - CUrtis campbell, Sr. 

ATSDR - Linda Wright Health/Risk Assessments 

Break 

DOE - Compliance With Nuclear Waste Policy Act 

Lunch 

FEMA - Emergency Planning - Update on Tribal Interface 

Larry Bailey 

IHS - Wayne Potter 

IRS Work Plan Status 

Natural and CUltural Resources 

Archaeological Survey Richard Berg, BIA Area Archaeologist 

Break 

Summary and Wrap-'Op 

Follow-Up Actions 

Next MOO Meeting 

Adjourn 
; 

MOU MEETING 

. TRIBAL COUNCD.. MINUTES 

PRAIRIE ISLAND INDIAN COMMUNITY 

COUNCD.. CHAMBERS 

MAY23,1996 

Council Members Present: Curtis Canq:bcll, Sr., DarcJynn LchrD, Byron Whhe, Micbacl Chilm. Sr., Alan Childs, Sr. 

Council Members Absent: None 

Others Pn:scnt: I.any L. Bailey, Russ Bywater, Reta Childs, Tim Cowd:ty, Sue Ann Curtis, Made Dcllagatti, Eric 

Glatstein, Rebert ~Eagle, Don Hansen. Wmdy Hclgemo, Audre'j Kobnen. Robnd Licbls, Cmt Meeder, HeJb 

Nelson. Eric Pchle, Wayne Potter, Steven Ray, Lcnor Schc:mer, Heather Westra, Scott Ycss and Charter School 

Tcacbcr Jeanine Gregoire and students 

l Meeting Call to Order 

Mcc:ting c:allcd to order at 9:15 a.m. 

n. Opening Prayer 

Prayer led by Cortis ~pbcll, Sr. 

m. Introduction - Robert Grey Eagle 

Robert Grey Eagle stated that the federal agencies' representatives b3vc been mcc:ting semi-annually with the Pzairie 

lsland Indian Community. The budget cutting has handicapped some of the progress. Tnbal Council is actively 

pusuing signatures on the MOU. 

In response to visits to Senator Paul Wellstone's office, Senator Wellstone v.ill be sending letters to the respcctivc 

federal agencies. Darc)ynn Lehto and Alan Childs visited Vice President Al Gore and he V.'3S ~· impressed with the 

MOU and felt that the MOU could serve as a model for national rdorm. 

The MOU is a model to resolve issues. JC all agree on a common solution. we can come up with a better idea of v.ilat 

those trust obligations are. The issues are: 

1. The community's heolth, safety and finandol well being due to NSP's proximity to Prairie Island. Several 

mandates were issued by the state Jegislatme that NSP had to put rcsourcc:s into wind and biomass energy 

development. Due to the legislative mandate to move the dJy cask storage off' of Pnirie Island and SOJDCWhcrc else 

in Goodhue County we have third party standing We did approach NSP and the sta1c lcgis1ature with a win-win 

situation. Spent fuel storage is becoming a national and global phcnonomcn. Robert felt that we arc the only tn"'be 

in such close proximity to nuclear storage. The fcdc:ral govcmment has a definite trust mponsibility toward 

Indian tnDc:s. 

2. Prairie Island wanting to relocale always brings 11p the Idea that we htn>e 1111 illtmor mo~. Our community has 

to f3cc the realify that they have to live next to nuclear storage. No one understood 1his until they were faced with 

1he possi"bility of living next to nuclear storage in 1hcir community. m have lived with it tw:Dt>' odd years. We 

have to think of a common goal and a common good. This Tn"'bal CoaDdl has lakcn a lot of time and cxpen5C to 

Uy to deal with this issue. The ldiole island. would not pick up and move, moving is a matter of choice. Prairie 

Island will always be here. This is 1hc traditiorial home land of the Mdewabnton people. People will be given the 

choice to move if they would likc. As we all Jcnow, Indian people have always been a communal people, a tn"'bal 

people. The Tn"'bal Council thcrcf'ore decided that 'WC would like a c:ommmiity esiablishod. Tberc arc expenses 

involved in relocating a portion of lhe community, so the expcn5CS of obtaining land and relocating is SCDSI"ble. 

Then everyone should contn"'butc: NSP, swc and federal agencies. 
The MOU process is designed I() cut across those barriers. Robert thanked everyone: for being pcsent and taking an 

interest based on their professional as well as their petSODal interest. He 11>anW HeJb Nelson i>r spearheading 1he 

mec:ting The BIA has been given a lot of the 1JUSt rcsponst"bility. This is the first lime we have qllCDOd these mrdings 

10 the public and to the press. 

IV. Hero Nelson 

On behalf of the BIA. Herb Nelson '\'Crified Robert's statcmcm that this is a federal trust responsibility. He stated that 

they want to tiy to work IOgcChcr. Hero rcqucstcd 1hat 1he agencies not wait until they have 1he original MOU, but to 

take thel:opy back and miew it and then we can sign it in very short order. If anyone has any hsucs that they would 

like changed, we may be able to adjust some things, but we arc not going to change the original intent. 

V. Heather Westra - Video 

VJdCo of Ally and Friends was mown. 

VI. Roland IJckus - Nuclear Regulatory Commission 

Roland Lid:us o;i:>laincd 1hat the NRC has been coopeiating with the tn"be for 1he pa.st one and one-half years and is 

fully committed to work with Prairie Island. He stated that they ]Jave dcclinM the signing of the original MOU. The 

community asked if we would be willing to sign a more simplified version. 1besc 1WO issues arc being pursued 

currently v.ith staff in Washington, D.C. 

VII. Mark Delligatti -Process for Licensing Indcpcndc:nt Spent Fuel Storage Facility 

The Spent Fuel Project Office was set up last year. Mark Delligatti stated that be bad bcid a meeting for those who will 

be requesting licensing along with vendors for cask transportation. Prairie Island Nuclear Plant is CJDC oflhe plants that 

he is responsible for. It is his agency's goal to have as much openness as possibJe and welcomed c:alls to his 

Washington, D.C. office. lt is his job to protect the health and safety of om people. 

The licensing process is new. Mark showed slides of existing dry cask storage sites and potential new sites. 

(Attachment A). Transportation casks will be liccmed under 10 CFR Part 72. Thousands of shipments have gone 

across the country under these requirements. Mark discussed licensing rcqu.ircmcnts and proc:c:dDres. The applicant 

v.iou!d have to prove that there would be no harm to the surrounding community and that repairs CCllld be made without 

incidi:nt. 

Alan Childs, Sr., stated that there should be some prcplanning for flooding, emergencies, etc. 

Heather Westra asked about the diffcrcnce between a site specific and a general license. Site spcc:ific liccnsc v.'DUld be 

on site or lm'3)' from reactor. 

Hetb Nelson commented how federal agencies ~ to woB: 'With 1he tn'bcs. Tn'bcs arc not a memh:r of the public, but 

scparatc government entities. A tribe can call a fedenI agency and request a piwtc consultation. Mark strted he '\\'aS 

very nnfammar with 1he process and will work 10 change this. 

Di.scossion ~ held on NSP requesting a liCCODd licc:mc and 1he fact tha1 no othe:r flcility in 1hc country has d;cd for a 

second Iiccnsc. 

Heather asked if FEMA will have a role in reviewing this awJication. Dard)'nn Lehto questioned if any consider.Ilion 

has been done about a train dcrai1menl. MaJk stated that they did Dot have ID application from NSP )U The 

c:ommission does not consider dry cask storage a less safe swmge of spent fUcl. It still has ao meet the rcquircmeDts. 

Byron asked that after all is said and done and an ac:ddcnt docs happen what recourse woald this tribe have against 

NSP, NRC and v.ilomevcr? The rcc:cmse is the imaranoe that NSP \WIUld take out which 1'Wld include any kind of 

act. The NRC could obtain figures of what the most serious accident would cost. 

Dardynn Lehto asked about the safety of 1he dry c::asks and if Ibey arc scaled, how do they leak llCC:Cp(ablc amounts of 

radiation and who detcrm.inc:s the amount? Tbey arc liCaled as far as gases, but gamma ndiation can penetrate through 

metal. 
·. 

~ 

The NRC will deal with regulatory issues, but for health issues the UDMmiy of Minnesota should be contacted. 

Roland Lickus stated that they look at national and international standa.rm. 

vm. Relocation update oatcomc Df 1996 legislativc session 

The legislative session staJ1ed out with a proposal between NSP and Prairie island Throagbout the session, no one 

cbjcctcd to Prairie Js1and receiving compensation and acquiring land. The gow:mor wanted assurmcc that we would 

not expand gaming. Compensation amounts "WCrC debated: Should NSP c:onttibute niorc or less than the &tatc? It 

vr.lSI1 't ~ outright DO to the tn"be. Issues came up IS to acquiring the land. A case came out of Soaih Dakota about 

Lower BrulC tJ}'ing tO acquire land by lnterstltc 90, as to what n.mifications 1hcrc would be to the surrounding 

community. Bef'orc these lands "'Cl'C pat in trust Sou1h Dakota sued the US govrmmcnt Ibey are amcntJy 

contemplating an appeal to the United States Supreme Court A pumbq of theories hayc come out. some or the tn"bes 

don't V.'3Jlt an appeal. as then it '!/O!,!ld aff'cct a}l tn"bes. We are prging to appeal. otherwise we are stuc;k with a neptiye 

ppinjon. Indian tribes arc tax exempt. but individual Indians may be l3XCd and are taxed. We believe there are 

remedies available, but will be cl.U:aming this with the MintlCaDOUs office soon. · 

What arc we going to do for the I 997 JcgWation? The legislative maodatc to liecnsc an al1cmativc dry cask storage 

site may not be followed. Frontenac sued on this basis, to prevent fuel being moved from Prairie Island. It was a 

premature issue, so the case 'W3S dismissed. If lhe actual steps 'Were taken to move casks off Prairie JslaDd then it would 

be considered a good case. 

We l\'3Ilt nuclear fuel off from Prairie Island That is the 'Whole basis of l 994 and l 996 bat bcing realistic we had to 

play it safe. Land and compmsation became an issue as some mcmb:rs feel ahat the gpcn.t rods may never be moved 

from Prairie Island. Apparently the Mescalcro deal has failed and it is unknown if Yucca Mountain will ever become a 

reality. That leaves all nuclear plants using on site storage. 'Ibe Minnesota legislature has mandated that the spent 

fuel is to be moved There should be safer sites than by a main watem-ay. Tberc is no scientific or legal R350n why 

the fuel cannot be moved If wc arc stuck l\ith it for one reason or another, wc would expect that the land and 

compensation would become a rcaliti. The debate was not rcjcdcd because they opposed compmsation, but because of 

the qu.estion or who is to compensate and how. We believe it should be a shared rcspoDSJ"bility. 

The MOU is a blueprint plan for 1hc future or our tn'bc. With Prairie Island being a 1rCaty based tribe, thc:rc is a moral 

and federal responsibility. There is no appa.rcnt correlation between the 8th Circuit decision (on putting land into trust) 

and the-UJ"be receiving land in this legislation. In other parts of the countJy, there has been a high degree of racism. 

We have overcome some of these by hiring lobbyists and creating good public relations to foster good relations. Other 

tn'bes should do the same. The unfortunate pan about litigation is that what happens in one UJ"be, affects us all. 

·Emergency Operating procedures arc in~ to lcecp the core cool if generator tubes rupture. 1berc arc safety systems 

designed into the plant to ~ up for Joss of power. Tubes arc inspect.cd regularly. If any )X'Oblcms, they end up 

either shutting down the plant or rcp!acing the steam generators. We have technical specifications as to how many 

tubes can be plugged. They can c:any both contaminated and clean water. The heat transfers from inside the tube to 

clean l\'atct on the outside of the tubes and the concern is then )'Oil blrvc a path for the reactor 'W31er to get into the clean 

water. Heather Wcsua st3tcd on the intcmet the regulatory commission showed the Pzairie Island facility and never 

mentioned the Prairie Island Indian Community and requested thzt ~be noted. 

Lunch Breal:: • 12:00 DOOD - 1:30 p.m. 

IX. Litigation Supportfl"rcaty Research 

Herb Nelson stated that the tribe was awarded BIA treaty litigation funding to conduct historical and archival research 

to asccnain unlitigated claims 1IDdc:r Mdcwalamton treaties. 

X ~Update-- Wendy Hclgemo 

Wendy Helgemo is conducting research and analyzing any claims under the Mdewalamton treaties of which wc are a 

part; this will lead to a better undemanding of unresolved treaty issues and what our boundaries arc. Treaties arc the 

superior or the land and yiolations or treaties arc tbC pme as fed;ral law. At one time the Mdewakanton treaties and 

the resu.mOOon or fulfilling ()blir.;ations pnd:r these lJ!.aties and lands were put into trust and that is bow they were able 

to recoup some lands. She is continuing to research the lbdication and rcsumpcion or these treaties and how to pursue 

regaining what we lost. 
· XI. Risk Assessmcnt/Hcal ATSDR Health J.ssessment ·Linda Wright 

Heather spoke in Linda's plac:e. BCCause of budget cuts Linda plans 0n coming later this summer to do bealth 

ISSCSmlC!lts and study environmental and health outcome data and community conc:e:ns about waste released into the 

cmironmcnt. exposure through air, water, food, the harm or 1he toxicity and the proximity to a contaminated 

substance. She '\\ill be using radiologicai data that has already been collected. There will be a c:omparison of hc:alth 

issues as compared to the OU1Side community. 

We hope to have.the Environmental Woibhop before the end of the: fiscal year. The Dcpartmc:m of Energy thought 

they might .be able to come up with some funding. The wmbbop 'WOUld probably be for two days, gcand to the lay 

person. Out of that wc: arc hoping to deYclop some type of han&ook: for pcople to take with them for future rd"c:rcnc:c. 

Roland Lic:kus would apprcciatc a letter on 'MW 1hcy Mnt him to c:crver and be ·would be happy to IUCDd. All 

community mc:mbc:rs and sttidetrts of Jeanine Gregoire would be: able to ltteDd and we: hope .to open it up to the Red 

Wing area. We hope to give information in an oqcctivc way so that lhci can form their own opinions. 

Herb reported on the IHS Wodc: Plan Sanhation SUI"YeY for water and sewer and arvinmmcma1 health and safety 

surveys to provide information to keep these .&cilitics up to axle. 1bis will be on the: agenda for the: nc:xt meeting. 

Herb will bring copies. 

XII. Radiological Monitoring 

A basic background water quality asscssmcut of ground Woller rcsoun:cs here is being done., conccntrati.ng on tritium in 

the \\'21er. Tritium is 3H Hydrogen with a half'-life of 12;26 years. Water is composed of' water and hydrogen (H~); 

watcrv.ith tritium has one oxygen and one hydrogen and one tritium. Chemically, this can be: taken into your body just 

like any other 1''31cr. Radioactive means it is not a stable -tritium is a m1ura1 atom and in m natural form it is 

prodDccd in the upper atmospbc:c when the cosmic rays hit a nitrogen atom; one pan of 1he nitrogc:n ll10m bc:comes a 

natural atom. Half-life means that it naturally decays and half of what you have will be gone in 12.26 years. When 

tritium decays it turns into helium by piDiDg an electron and it gives off low-Jc:vd ndiation. It it is in the air, it can be 

stopped by clothing but it can get into the body through food or driilking ·water. We have been monitoring the tritium 

at 20 different ground \\'31er sites and seven swfacc ·water sites. Sample nms between the fall of 1994 and summer of 

1995 1aI1ge between 0 and 200 pic/L (picocurics per liter) . Jf the tritium in the ground water is 1iom l\'atcr that f cll in 

the 1960's, then you would have higher pic/L in the l960's than now. Tbcrc arc ways to date water and it would be 

interesting to :find out when 1his 'S'l'atcr fell as rain. No readings before 1994. The EPA drinking water !itandard for 

tritium is 20.000 nicocucries/L. Leycls here as much lower. We arc trying to get a handle on how the groand l\'3ter is 

1lov.ing. If tritium is airborne, then it could also be in the: food. 

There have been no significant levels of tritium found in any of the fish that we have monitored. Fish were collected 

from Sturgeon Lake and around the plant. We will be doing this again in June and will do it for a number of years. 

The: EPA gave an explanation: The 20,000 picocuerics ... 4 milligrams of tritium. You woald get 4/250,000 of a dose if 

you drank 2 liters of water containing 20,000 picocucrics. A radiation dose is a uniform way io describe: biological 

responses to what people have in gorrespondcncc to 1hcir body. An-J amount of radiation has a qoa.n1ifyiDg risk to it. 

The EPA sets a standard lhat they find is acc:cptable and 20,000 pic/L is considc:rcd an acceptable risk. 

Tbcrc arc risks associated 1lrith everything. How can wc measure if.it is hurting m on the is1and1 We find the 

aggregate total of all of these things: Tritium. alpha mys, beta rays, etc. Tbcsc arc normal standards and then you add 

living next to the plant to find the risk aver a life time. If the total amount is over the set standard then wc: have a 

regulatory issue 

If we had a catastropbic discharge 1hcn thc:tc would be an emergency response. Roland said that history has sllo'S'lu us 

that none of the pla.ms have even come near the limit H miyonc \Wllld fud8e the records Ibey woald be in trouble with 

the NRC. Water testing data from before the plant is available in the public docmocru room at the Minneapolis Public 

Library. The last two years wc have been doing the fish SDJ'Vey, mercury and PCB's arc: a bigger issue than tritium. 

Several of the popular fish species contain PCB's in tissue. It's safe: to go fishing, but not to cat 1he fish. Heather will 

be sent hints on proper preparation \\ilcn c:ooking to avoid as much of the contaminants as possible. Hydrologic events 

BlCh as a flood could Sir things pp and could change the findings. Since the 1970's things W Cotten bcttei"-

The hmnan body docs not ao::mnulate tritium. Jf it is in water it gets rid of it in a matter of days, htt if it is in food then 

the tritium could get into tissue. It v.-as questioned if tritium Jeyets arc higher in 9thcr parts of the area. Tberc could 

be a study done on turtles. There should be comparisons with other nuclear plants around the counby. 
. . . Tritium has been used to distinguish age of water in the past 10 to 1S )UIS. Low conc:cntration ~before the 1960's 

aild high c:onccntrations during the 1960's. Wat=r bc:f'orc 1954was6to1S piooc:ucrics per liter. Tbe w.tter 5iDcc 1960 

is still around The Olher phenomcn? is that s arc upstream from the Mt. Other types of media that might be 

sampled arc vegetation sampHng from gardens and possibly mother's milk if anyone is willing to SUR>lY samples. 

Nick Ov.u stated. "I am a member of this community and I don 'l know bow You can sit her= and talk abou11his as it 

is not such a big thing when we can't cat our fish." The rcSpe>nse was that they are trying to .figure out what is 

acccptabte. and the PCB's arc caused by companies making things that we all use evcyday. 

Update on the ArChacologist Survey· Richard Berg will be here for the. nc:xt meeting and will have some graphics and 

handouts. The trust acquisition is b:ing bdd ap because ofth= 8th Circuit decision. Thi: tribe: was awardod a grant to 

answer the qui:stion of how mu.ch land 1"aS Jost. bow many acres wc:rc Jost, what resources were Jost and if the: tn"bc 'WaS 

comrensatcd for this loss. 

XIII. Heather .. WctlaDds DcliDc:ation and Assessment 

A""'3J'ded $14.500 in funds from BIA and wm be matched bv the U.S. Corns of Engineers. The Corps of Engineers will 

be starting wo!k this summer and 'WC will use information ga!hered in the cnviromnemal codes and ordinana'$. 

Break 

XIV. Emergency Planning 

Offsite Emergency Planning • FEMA is IqpOilS!'ble for emqgency planninWcoordination out.side of the po\\'er plant 

b?undaries. Because of 3 Mile Island we got involved in off-site emergency planning. Emergency Management is a 

50-SO match program with the states. Fc:d:ral dollars arc also given to counties and larger cities on a 50-SO match. 

FEMA is starting pctformance partnmhjp agreements, setting five year Jong term goals on emergency management. 

This is an attc:mpt to sit down v.it.h state government io get a commitmcni on emergency management. 

The MOU points out preparedness through training. periodic exercising, and eviluation of those activities. We have a 

response mechanism and a response plan. 1be whole fcdcral community would come oat and coordinate a response to 

the disaster. The recovery aspects arc the long term follow up after the disaster. An active part of our agency it is to 

reduce damages in the future. This bas been used mostly for :Oood plain ordinances. Funds available arc block grants. 

land and conservation funds. FEMA funds and flood insurance claims. It wou}d allow participation in the national 

flood insurance program ~ith the pnderstanding that all future construction v.'QU]d be out or the flood plain. Th.is area 

is in the City of Red Wing and the last map did not haye tribal areas identified but the new map will W the flood 

plain sho"1on. Tnbal Council could mss a resolution if you choose to join the flood insurance mogram. The rail 

corridor v.'35 mentioned in relation to the derailment in WiscOnsin earlier in the year. There is an obvious need to 

promote hazardous materials emergency planning. 

Some of the findin~ from the emergericy preparedness cccrcisc held bst week wc:rc reviewed. There arc 33 Clbjcctives 

to evalua!e the offsite c:a:pabilities that surround a nuclear !acility. There arc periodic meetingc; with NSP and the 

counties to look at evacuation issues. There could be 4,000 to S,000 people here on a busy night at the casino. This is a 

very serious issue and this was glossed over during the cxe.rcisc. We will be willing to do anytbing 'WC can do to help 

coordina1c a realistic evacuation. For Goodhue Comrty this was a planning issue and for Pierce County the bus drivers 

need:d some training on evaawion issues. 

XV. FEMA 

We have c:ntercd into separate MOU's for Canada and for Mexico. It is not known wbdher F.EMA v.ill sign the MOU. 

If you v.-antcd an emergency planner we could posst"bly share the cost v.iith you. There is a structure in place at the state 

level and they arc more than willing to assist you in 1he cSevelopment of an emcrgcncy preparedness plan. We v.ill 

continue to do whatever 'WC can, including providing any more information on chemical 5Udpiling, emergency 

preparedness, :Oood insurance, etc. 

Jt was brought up that FEMA seems reluctant to sign the MOU. ~nse was that maybe 'WC would do a two party 

agreement or a pctformancc partnership agreement like the states. A lc:ttcr will be sent by Robert Grey Eagle to their 

office of general counsel, to IC\iew the MOU and to issue an opinion on this document. We could embark on signing 

the MOU with these other agencies. 
· Lylis suggested giving a little history of Prairie Island and why we can no longer cat the turtles, c:tc. Some inclividnats 

arc new to thls· Heather asked if we would have a chance 10 review the agreement and supply ccmmcnts. fEMA 

stated that wc haven't in the past. Heather stmd that the other govermrieD1a1 units arc reviewing this and it gems 

Jh.at Prairie Island goycmment should be able to revjew aJso. There are meetings held m· the plant but have never seen 

Jhe countv planning and 'W0\1ld like thC opportunity tO reyiew that. CoontiCS and li\ateS do not haye that pme 

responsibility to consult with the tnne. Heather wou]d like a copy of the c:omrty's plan. 

Contaminated animals, people getting sick from the power plant and pos51Dility of a rail disaster wcrc disa1sscd. It l\'3S 

brought up that there is only one exit from Prairie Island, that we would need some help getting out of here, that wc 

may be iiatistically part of Red Wmg, bJt we need oar own plan. Our own security is one c:omact. Alan said our roads 

h3vc been an issue forever. We get fire protection from Miesville, police from Red Wing, ambntanee from~ or 

Red Wing. We~ 1o be treated as an individual govcmmcnt. • -

. . Counties arc JeaviDg the 1n"b:s out. JI FEMA would see that tn"bcs are included woold be helpful. The emergency 

prcparcdncss plan was not in effect for us in 1993 when flooding ocamcd. · 

Robert Grey Eagle and Darclynn Lehto said it woold be sa::c:ptable if we could do everything without signing the MOU. 

We could draw romdhing up that l\"DUld be good for your community, direction, control. evacuation, etc. Evacuation 

on a busy night here docs not happen in a few minutes. Jurisdiction scc:ms 1o be an issue. We do want to sec the 

evaluation of the cxcrcisc. We will get you a leucr. 

XVI. WrapUp 

The next MOU Meeting l\"3.S scbcduled for August 22, 1996 from 9:00 a.m. to 4:00 p.m. 

Rebert Grey Eagle stated chat agency directors will receive some information. 

Hero Nelson felt '\\'C accomplished a lot, discussed what trust is, the government to govcmmcnt concept He thanked 

the other federal agencies for coming and participating. He stated that the agenda iS not fixed in concrete and if 

someone secs something that should be addressed they should speak up so that it can get on 1he agenda for next time. 

Darclynn Lehto thanked C\'C?)"One for coming. The agencies that arc rcspoDSl"ble to us, you are here today because we 

take these issues seriously. 

xvn. Adjournment 

Meeting adjourned at 4:00 p.m. 

Minutes respectfully submitted by 

Ecanorc Bartell, E.xecutivc Secretary 

for the Tn"bal Council 
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·· MmmA 

Meeting !'or Memorandum of Onderatanc!ing 

Kay 23, 1996 

at the Prairie I•land Ccmmunity Center 

Welccme and Introductions 

Opening Prayer/Invocation - curtb C&mpbell, Sr. 

President, 1'r1bal council 

PurpoH of Heating - Robert Grey Sagle 

HOO' status - Who has •igned or not 

Remaining Agency Issues With ~oo · 

Nuclear Regulatory Ccmmission - Roland M. Liclcua 

Proce•• to Lica119a Nuclear Wa•t• Storage Facilities 

Update on ~Party HOO and CCmmi.Hion P&per 

~elocation Update 

outcome of 1996 Legislative Session 

Bth Circuit court of Appeal• Update on Moratorium 

Break 

Litigation Suppcrt/~eaty Reaearch 

Funding Update - Barb Nel•on 

Project Update - Wendy Belgemo 

Lunch - Buffet at ~easure Island C&aino 

Risk Assessment/Health 

ATSDR Health Aaaeanment - Linda Wright Environmental Workshop IHS work Plan 

Jtadiclogical Monitoring Update ~ritium - Hatural v. Increased Levels 

Don Hansen and Eric Glatatein 

Hatural and CUltural Resources 

Archaeological Survey . llichard aerg, BIA Area Archaeoloqiat Wetlands Delineation G Assessment 

Heather Westra 

Emergency Planning _ Offsite Emergency Planning - !'EMA 

Floodplain Regulation• - FEKA 

Nuclear Plant Exerci•e - RRC and !'EMA ~r1bal Projects - Heather Westra 

Break 

summary and wrap-Up Follow-Up Actions . Hut HOO Heet;itig 

Adjourn 
29424 Federal Regist~r I Vol. 61, No. 112 I Monday, June 10, 1996 I Notices 

management of argali in Kyrgyzstan, Bureau of Land Management Mongolia, or Tajikistan has changed 

since the original classification of these Lower Snake River District Resource 

populations in June 23, 1992 (57 FR Advisory Council; Meeting 

AGENCY: Bureau of Land ManagementInterior. 

ACTION: Notice of meeting. 

28014), the Service continues to 

consider these populations as 

threatened. Except for the recent report 

by Fedosenko on argali in the Pamirs 

region in Tajikistan, the Service has BIADIARY: The Lower Snale River 

received little additional inrormation on District Resource Advisory Cowicil will 

the status and management of argali in meet at the distrid office lo discuss 

these countries since the 1993 report options for applying lenns and . 

funded by the Service. Thus, the Service·· conditions for improving riparian areas 

is requesting additional and updated to livestock grazing permits and leases. 

information from the Governments of DATI!S: Tuesday, June 18, 1996. The 

Kyrgyzstan, Tajikistan, and Mongolia . meeting will begin at 8:30 a.m. and a 

and from individuals and organizations public comment period will begin at 

knowledgeable about the status and 9:00 a.m. 

management of the argali 1ri these three ADDRESSES: The Lower Snake River 

range countries. Distrid Office is located at 3948 

Development Avenue, Boise, Idaho. 

Jnfonnation Solicited FOR FURTHER INFORMATION CONTACT: 

The Service can only issue a Barry Rose, Lower Snake River Distrid 

threatened species pennit for the import Office (208-384-3393). 

or orgali trophies when it finds that the Daied: June4, 1996. 

activity will enhance the propagation or Barry Rose, 

survival of the species. So the Service Public Affairs Specialist. 

solicits information on the status of IFR Doc. 96-14551 Filed &-7~: 8:45 mnl 

argali populations in Kyrgyzstan, lllWIG COOE otM:G-P 

Mongolia, and Tajikistan, including: (1) 

Whether the population In each country 

is sufficiently large, viable, and 

adequately protected to sustain sport 

hunting, (2) whether the regulating 

authorities in these range countries 

INTERNATIONAL TRADE 

COMMISSION 

[USITC SE~t.1] 

recognize these argali populations as a sunshine Act Meeting 

valuable resburce and have the legal and 

practical means to manage these argali · AGENCY HOLDING THE MEETING: United 

populations, including examples of any States International Trade Commission. 

recent management initiatives, and (3) DIE AND DATE: Jilne 18, 1996 at 9:30 

whether the regulating authorities can a.m. . ensure that the exported trophy has in PLACE: Room 101, 500 E Street S.W., 

fact been legally talen from the Washington, OC 20436. 

specified population. In addition, the STATUS: Open lo the public. 

Service seeks infonnation on how any MATTERS TO llE CONSIDERED: 

funds derived from the involved sport l. Agenda for future meellDg 

hunt or any contributions made directly 2. Minutes 

by the applicant and/or the outfitter 3. Ratification List 

have been applied to argali 4. Inv. No. 731-TA-739 (Final) (Clad Steel n ti incl d. •fi Plate from Japan}-briefing and vote. co serve on, u mg spec1 c 5. Inv. No. 731-TA-732-733 (Final) [Circular 

examples. Welded Non·Alloy Steel Pipe from • 

Information received will be Romania and South Africa)-briefing and 

considered in developing the Service's vote. 

findings for future permit applications 6. Outstanding action jaclets: None. 

for the import of sport-hunted argali In aa:ordance with Commission 

trophies. In the meantime, the Service policy, subject matter listed above, not 

continues to process applications and Cl.isposed of at the scheduled meeting, 

make its decisions on existing may be canied over to the agenda of the 

information. following meeUng. 

Dated: May 30, 1996. By order of the Commission: 

Juhn G. Rogers, Issued: June 6, 1996 

Ac:zin8 Director. Donna R. ICoehnlu:, · 

IFR Doc. 96-14377 Filed 6-7-96: 8:45 am) Secretary. 

BIWNO cooe c:llo-55-" (FR Doc. 9&-14 749 Filed 6-6-416: 1:05 pm] lllWNQ COOE lmCMl2.P 

DEPARTMENT OF JUSTICE 

Office of the Deputy Attorney General 

Office of Tribal Justice; Policy on 

lndlanSoverelgnty . 

AOENCY: Office of Tribal Justice, 

Department of Jisstice. 

ACJION: Notice. 

SUllMARY: This notice publishes the 

"Department or Justice Policy on IndJan 

Sovereignty and Govemment-toGovemment Relations." The Poley 

reaffirms both the Department's 

recognition of the sovereign status of 

federally recognized lndJan tribes and 

the Department's adherence to 

govemment·t~ovemment :relations 

with federally recognlmd Indian tribes. 

The Policy also contains a directive to 

all components of the Deportment of 

Justice to infonn attorneys of the 

responsibilities enumerated in the 

policy and to make all seasonable efforts· 

to ensure that comp0nent actiVities 

conform to its terms. The Policy also 

directs Department of Justice 

component heads to appoint a contact 

person to work with the Office of Tribal 

Justice to address Indian issues within 

each component. 

FOR FURTHER INFORMATION CONTACT: 

Herbert A. Becker, Director, Office of 

Tribal Justice, Room 1509, Main 

Building, pepartment of Justice. 

Telephone: (202) 514-8812. FAX: (202) 

514-9078. . 

BUPPLEMENTARY INFORMATION: Attached . 

is a copy of the "Department of Justice 

Policy on Indian Sovereignty and 

Govemment·to-Covenunent Relations 

with Indian Tribes," which the Attorney 

General signed on June 1, 1995. 

Dated: June 3, 1996. 

Hcrhat A. Becbr, 

Director, Office a/Tribal Justice. 

Office of the .t\Uorney General 

Washington, DC 20530 

DEPARTMEm" OF JUSTICE POLICY ON 

INDIAN SOVEREIGNTY AND 

COVERNMEm"·TO-GOVERNMENT 

RELATIONS WITH INDIAN TRIBES 

PUlpDR 

To reaffirm the De~nt's recognition or the sovereign status or fedemlly m:ognlzed lndian tribes as domestic dependent nations 

and to reaffirm adherence to the principles or government-to-government relations: to 

inform Department personnel, other federal 

egencles, lederally recognized Indian tribes, 

and the publ.ic of the Department's working 

relationships with federally recognized Indian tribes: and to guide the Department In 

Its work In the field or Jndian affairs. 

L Introduction 

From Its earliest days, the United States 

has recognized the sovereign status or Indian 

ATTACHMENT 4 
Federal Register I Vol. 61, No. 112 I Monday, June 10, 1996 I Notices 29425 

tribes as "domestlc dependent nations." 

Cherokee Nalion v. Georgia. 30 U.S. (5 Pet.} 

1, 17 (1831). Our Constitution recognize 

Indian so\-erelgnty by classing Indian treaties 

among the "supreme Law or the land, "and 

establishes Jndian affairs as e unique area .. ; 

feacral concern. In.early Indian treaties, the 

United States pledged to "protect" Indian 

tribes. thereby establishing one of the bases 

for the federal trust responsibility la our 

govcmrnent·to-govemment relations with 

Indian tribes. These principles continue to 

guide our national policy towards Indian 

tribes. • 

A. The Executfre Memnrandum on 

Government-to-Government llelations 

Bet .. -een the United States and Indian Tribes 

On Aprll 29, 1994, at an historic meeting 

with the heads of tribal governments, 

President Clinton reaffinned the United 

S!a!es' "unique legal relationship wllli Native 

American tribal governments" and Issued a directive lo ell executive departments and 

agencies of the Federal Government that: 

As executive departments end agencies 

unde~alce activities affecting Native 

American tribal rights or trust resources. 

such activities should be Implemented In a 

knowledgeable, semltive manner respectful 

of tribal sovereignty. 

President Clinton's directive requires that 

In all activities relating to or affecting the 

government or treaty rights of Indian tribes. 

the executive branch shall: 

(1) Operate within a govemment•togovemment relationship with federally 

Americans • • • t!I freedom of choice and 

1elf·detennlnation." President Nixon .strongly 

encouraged "self·ddennlnation" among the 

Indio people. President Reagan pledged "to 

pursue the policy or self-govermnenl" for 

Indian tribes and reaffirmed ''the 

govermnent-to-govemment basis" for dealing 

with Indian trilles. President Bush recognized 

that the Federal Government's ''efforts to 

Increase tribal self-governance have brought 

a n:newed sense of pride and empowerment 

to thb country's native peoples." 

U. Principles of'lncllan Sonreignty llJld lhe 

Trust Respomihll.ity 

Though generalizations are difficult, a few 

basic prilldples provide important guidance 

Jn the field oflndinn affairs: (1) the 

O>nsUtution vests Congress with plen.sry 

power over Jndiiμi efl'airs: (2) Jndil!IJ tribes 

retain Important sovereign powers over "their members and thelr territory," subject 

to .lhe plenary power or Congress: and (3) the 

United States has a trust responslblJity to 

Indian tribes, which guides 11J1d limits the 

Federal Government in dealings with Indian 

tribes. Thus, federal end tribal law generally 

have primacy over Indian affairs In Indian 

counby, except where Congress has provided 

otherwise. 

DI. J>eputDlalt ofJasdce Recognition of 

lndWl SoYerelgnty and the federal Trust 

Responsibility . 

The De'partment resolves that the following 

prindples will guide Its Interactions with the 

Indian tribes. 

recognized Indian tribes: A. The Sovetei8J1ly of Indian Tn"be$ 

(2) Consul!, to the greatest extent The Department recognizes that Indian 

practicable and permitted by law, with tribes as domestic dependent aations retain 

lndtan tribal go-.-emments before taking I d" ed b th actions that affect federally recognized Indian sovere gn powers, except as ivesl y e United States, and further recognizes that the 

tribes: United States bas the authority to restore 

(3) Assess the Impact of agency activities federal rec:opition of Indian sovere'ftftty In on tribal trust resources and assure that tribal rd gthe bal 1• '6"' 

Interests are considered before the activities 0 er to stren n tri se .-governance. The Department shall be guided by are undertaken: prindples of respect for Indian tribe$ and 

C4l Remove procedural Impediments to their sovereign authority and tJie United 

working directly with tribal governments on States'trust responsibility in the many ways 

activities that affect trust property or In whlcb the Department takes action on 

governmental rights of the tribes; and matters affecting Indian tribes. For example, 

(5) Work cooperatively with other agencies the Department reviews·proposed legislation, 

to accomplish these goals established by the administers funds that are available to tribes 

President. to build their ce~city to address crime and 

The Department of Justice is reviewing aimHelated problems In Indian country, 

prO".,rams and procedures to ensure that we and ID conJUDCtion with the Bureau of Indian 

adl1ere to principles of respect for Indian Affairs and tribal police, provides essenUal 

tribal governments and honor our Nation's Jaw enforcement In Indian counby. The 

trust responsibility to Indian tribes. Within Department represents the United States, In 

the Department, tho Office of Tribal Justice coOrdlnatlon with other federal agencies, In 

has been formed to cwrdinatc policy towards litigation. brought for the benefit or Indian 

Indian tribes both within the Department and tribes and Individuals, IS well as In litigation 

with other agencies or the Federal by Indian tribes or Individuals against the 

Government, and to assist Indian tribes es United Stales or Jts agencies. In litigation es domestic: dep!:ndent nations within the in other matters, the Department may take 

federal system. actions and positions aft'ecting lndiiin. tribes 

B Fi d J d .1t Pol.' with which one or more tn'lles may disagree. • e lltrJ 111 ian Se1,-1Jetennination icy Jn an situations, the Department will cany 

rresident Clinton's executive out Its responslbllities consistent with the 

memorandum builds on the fmnly Jaw and tlils policy statemenL 

established federal policy of self· 

dlllenninatlon for Indian tribes. Working B. Covemment-to-Govmunent llelalionships 

together with Congress, previous Presidents with Indian Tribes 

affirmed the fundamental policy or federal · Jn accord with the status of Indian tribes 

respect for trlb:il self-govemmenL President as domestic d11pendent nations, the 

Johnson recognized "the right or the first • Department ls committed to operating on the 

basis of govemrnent·to-govemment relations 

with Indian tribes. 

O>nslstent with federal law and other 

Departmental duties, the Department will 

consult with tribal leaders in Its decisions 

that relate to or affed the sovereignty, rlghls, resources or lands oflndian tribes. Each 

-:mnponent will conduct such consultation In 

light of its mission. In addition, the 

Department has Initiated national and 

regional listening confen:nces and has 

aeated the Office of Tribal Justice to Improve 

a>mm11Dications with Indian tribes. Ii: the 

Offices of the United Stales Attorneys with 

substantial areas of Indian country within 

their purview, the Department encourages 

designation of Assistant U.S. Attorneys to 

serve as tribal liaisons. 

Jn order to fulfill lls mission, the 

Department or Justice endeavors to fotge 

strong partnerships between th~ Indian tribal 

gO\-ernments end the Department. These 

partnerships will enable the Department to 

better serve the needs of Indian tribes, Indian 

people, and the public at large. 

C. Self-~Ination and Self-Governance 

The Department is commllled to 

strengthening and assisting Indian tribal 

governments In their development and to 

promoting Indian self-governance. Consistent 

with federal law and Departmental 

respomibilities, the Department will consult 

with tribal governments concerning law 

enforcement priorities In Indian country, 

support duly recognized tribal governments, 

defend the lawful exercise of tribal 

gowmmental powers ln coordination with 

· the Department of the Interior and other 

federal agendes, Jnvestlgate government 

conuption when necessary, and support and 

assist Jndian tribes Jn the development or 

their law enforcement systems, tribal courts, 

and tradition.al justice systems. 

D. Trusf llesponsibiliry 

The ~eat acknowledges the federal 

trust responsibility arising from Indian 

treaties, statutes, executive orders, and the 

historical iclaUons between the United States 

and Indian tribes. Jn a broad sense, the trust 

responsibility relates to the United States' 

unique legal and political iclationship with 

Indian tribes. Congress. with plenary power 

over Indian affairs, plays a primary role In 

defining the trust respllnslliility, and 

Congress recently declared that the trust 

responsibility "'inclui:es the protection of the 

sovereignty of each tribal govemmcnl." 2S 

u.s.c. 3601. 

The term "trust responslhIUty" fs also used 

In a narrows sense to derine the precise legal 

duties of the United Slates In managing 

property and resources of Indian tribes and, 

at times, of individual Indians. 

·The trust respomlhility, In both senses. 

will guide the Department In litigation, 

enforcement. policymaking and proposals for 

legislation alfecllng Indian country, when 

appropriate to the cira.unstanCES. As used in 

Its narrower sense. the federal trust 

responsibUity may be Justifiable In some 

circumstances, while In Its broader sens11 the 

definition and Implementation or the trust 

responslblllty Js committed lo Congress and 

tlie Executive Branch. 
29426 Federal Register I Vol. 61. No. 112 I Monday, June 10, 1996 I Notices 

E. l'rott>Clion of Civil Rights 

Federal law prohibits discrimination besed on race or national origin by the fedeml. state 

and local governments, or Jndividuals against 

Ari1erican lndianJ in such areas as voting. 

education. housing. credit, public 

accommodations and facilities. employment, 

end In certain federally funded programs and 

facilities. Various federal aiminal civil rights 

statutes also preserve personal liberties and 

safety. The existence of the federal trust 

responsibility towards Indian tribes does not 

diminish the obligation of state and local 

governments to respect the civil rights of 

Indian people. 

Through the Indian Civil Rights Act. 

C:>ngress selectively has derived essential 

civll rights protections from the BUI of Rights 

and applied them to Indian tribes. 25 U.S.C. 

S 1301. The Indian Civil Rights Act is to be 

interpreted with respect for Indian 

sovereignty. The.primary responsibility for 

enforcement of the Act Is invested In the 

tribal courts and other tribal fora. In the 

criminal law cxmtext, federal courts have 

authority to decide habeas corpus petitions 

after tribal remedies are exhausted. 

The Department of Justice Is fully 

committed to safeguan:ling the constitutional 

and statutory rights of American Indians, as well as all other .Americans. 

F. Protection of Tribal Religion and Culture 

The mandate to protect religious liberty ls 

deeply rooted in this Nation's constitutional 

heritage. The Department seeks to ensure that 

l.merican Indians are protected In the 

observance of their faiths. Decisions 

regarding the activities of the Department 

that have the potential to substanUally 

:Interfere with the exercise of Indian religions 

·will be guided by the First Amendment of the 

United States Constitution, as well as by 

statutes which protect the exercise of religion 

such as the Religious Freedom Restoration 

Ad. the American Indian Religious Freedom 

Ad, the Native American Gmves Protection 

end Repatriation Act. and the NaUonel 

Historic Preservation I.ct. 

The Department also recogni!es the 

significant federal interest ID aiding tribes ID 

the preservation of their tribal customs and 

traditions. In performing Its duties In Indian 

countiy, the department will respect and 

seek to preserve tribal cultures. 

IV, Directin to •JI Com~nenls or the 

Department of Justice 

ThP. principles set out here must be 

lnteipretcd by each component of the 

Depmmenl or Jusllce in light or Jts respectlw 

mission. Thererore, each component head 

shall make ell reasonable efforts to ensure that the component"s activities are consistent 

with the above sovereignty and trust 

princl11lcs. The component heads shall 

circulate this policy to all attorneys fn 

Dep:utment lo infonn them of their respo"~~lbl!itles. Where the activities and 

intern~.l/rocedure~ of the components can be 

refor?TJ<! to ensu~ greater con!;islency with 

this Policy, thr. ccmponenl bead shall 

uncertake to co so. If tensions arise between 

thesl' principles end other principles which 

gl•i.!c the component In c;,rrying out Its 

mis>ion. components will develop. as 

necessary, a mechllllism for resolving such ' 

tensions lo ensure that tribal interests ere 

given due consideration. Finally, component 

heads wlll appoint a contact person to work · with the Ofti<"' ofTriba~ justice In addressing 

Indian Issues ~thin the componenL 

v. Disdaimer 

This policy Is Intended only to improve the 

Internal management of the Department and 

la not Intended to cieate 11ny right 

enforceable In 11ny cause of action by any 

party against the United States, lts agencies, 

officers, or 11ny person. · 

Dated: June 1.1995. 

Janet:Rmo, 

J\ttomey General. 

(FR Doc. 96-14513 Filed &-7-96; 8:45 am] 

Ku.a CCO£ 441~ 

Notice of Lodging of Consent Decrees 

In Action To Recover Past Costs Under 

1he Comprehensive Environmental 

Response, CompensaUon, and Liability 

Act 

1n accordance with Departmental 

Policy, 28 CFR § 50.7, 38 FR 19029, 

notice is hereby given that two Consent 

Decrees In United States v. Cassidy, et 

al .. Civil Action No. 94-CV-71787-DT, 

were lodged with the United States 

District Court for the Eastern District or 

Michigan on May 30, 1996. 

·The Consent Decrees resolve claims 

brought by the United States pursuant to 

·the Comprehensive Environmental 

Response, Compensation and IJability 

Act, 42 U.S.C. 9501 et seq., against 

Detrex Corp., Ford Motor Co., General 

Motors Corp .. PVS-No1w0od Chemicals, 

Inc., Tronex Chemical Co., Van Waters 

& Rogers, Inc., Ethone-OMI, Inc., Henkel 

Corp., Chrysler Corp., General Electric 

Co., and Ciuboloy, Inc. The complaint 

alleges that the United States incurred 

response costs in connection with a 

release or threatened release of 

hazardous substances from sites 

operated by the ABC Barrel and Drum 

Company at 14290 Birwood St. and 102 

W. Lantz SL in Detroit, Wayne County, 

Michigan. The complaint alleges that 

the defendants were liable for such costs 

es persons who arranged for the · 

disposal of hazardous substances at the 

sites. 

One of the Consent Deaees requires 

Detrex Corp., Ford Motor Co .. General 

Motors Corp., PVS-Nolwood Chemicals, 

Inc., Van Waters & Rogers, Inc., EthoneOMI, Inc., Henkel Corp., Chrysler Corp., 

General Electric Co., and Carboloy, Inc. 

to pay $2,550,000 to the EPA Hazardous 

Substances Superfund to settle the 

claims asserted against them. Under this 

Decree, the United States also covenants 

not to sue and provides contributioi;i 

protection to th~e third party 

defendants who settled with the 

defendants for a total of $32,638: Martin 

Marietta Magnesia Specialties, Inc., 

McKesson. Corp., and Union Carbide 

Corp. The Deaee also restricts the 

contribution rights of the settling 

defendants and settling third parties. 

The second Consent Decree that was 

lodged requires Tronex Chemical 

Company to pay $20,000, plus interest, 

in four installments to the EPA 

Hazardous Substance Superfund to 

iettle the claims asserted against it in 

the Complaint. _ 

The Department of Justice will receive 

for thirty (30) days from the date of 

publication of this notice written 

comments relating to the Consent 

Decrees. Conunents should be addressed 

to the Assistant Attorney Genera], 

.Environment and Natural Resources 

Division, Department of Justice, 

Washington, D.C. 20530, ana should 

refer to United Statesv. Cassi_dy, et al., 

OOJ Ret No. 90-11-3-1060. 

The Consent DeCrees may be 

examined at the Office of the United 

States Attorney, Eastern District of 

Michigan, 211 W. Fort St., Suite 2300, 

Detroit, Michigan; at the Region V Office 

of the Environmental Protection 

. Agency, 77 West Jackson Blvd., Chicago, 

Illinois: and at the Consent Decree 

I.Jbrary, 1120 G Street, N. W., 4th Floor, 

Washington, D.C., (202) 624-0892. A 

copy of the proposed Consent ·Decrees 

may be obtained in person or by mail 

from the Consent Decree IJbrary, 1120 

G Street, N.W., 4th Floor, Washington, 

D.C. 20005. In requesting a'copy, please 

refer to the referenced case and enclose 

a check payable to the Consent Decree 

I.Jbrary in the amount of Sl0.75 (S.25 

cents per page reproduction costs) for 

the Consent Deaee requiring the 

$2,550,000 payment, and/or, $5.75 for 

the Consent Decree involving 1)onex 

Chemic;al Company. Please specify 

precisely which Deaee is being 

requested. 

Bruce S. Gelber, 

Deputy Chief. Environmental Enforr:ement 

Section, Environmen1 and Natural Resources 

Division. 

IPR Doc. 96-14472 Filed 6-7-96; 8:45 am] 

9IUJNCl CODE 44tM1-M 

Notice of Lodging of Consent Decroo 

Pursuant to the Comprehensive 

Envlronmental Response, 

Compensation, and Uablllty Act, (42 

u.s.c. 9601-9675) 

Notice is hereby given that a proposed 

consent decree in United States v. Da\•id 

B. Fisher, et al., Civil Action No. S92-

00636M, was lodged on May 22, 1996 

with the United States District Court for 
·. 

•' . 

(1610,l 195 09:04 '5'202 586 0230 Cong. Aff. CP-10 

MEMORANDUM FOR ALL 

FROM: 

SUBJECT: 

The Secretary of Energy 

Washington, DC 20585 

May 18, 1994 

The attached memorandum signed by the President on April 29, 1994, 

outlines principles that define our responsibility to ensure that 

the Department ope~ates within a government-to-government relationship with all federally recognized tribal governments. Accordingly, you are hereby requested to ensure that all program 

·components that fall within your purview are fully aware of the 

intent of this Presidential directive. Additionally, you are 

requested to ensure that the rights of sovereign tribal . governments are fully respected and that departmental activities 

affecting Native American tribal rights or trust resources are 

implemented in a knowledgeable and sensitive manner respectful of 

this tribal sovereignty. 

The attached Department of Energy American Indian Policy is 

consistent with the principles out1ined·in this Presidential 

memorandum. Its purpose is to provide you with further guidance 

as we work toward implementing departmental activities and actions 

affecting tribal governments. 

Thank you for your cooperation.and assistance. 

Attachments 

AITACHMENT 5 

~002 
. -

" 

.•f;/0]/95 09:05 f)-202 586 0230 Cong. Aff. CP-10 

THE WHITE HOUSE. 

WASHINGTON 

Aprii 29, 1994 

~..EMORA.-.."DW. FOR THE :H:EADS OF EXECUT!VE DEPARTMEh'TS AND AGENCIES 

.SUEJECT: Government-to-Gove:r:nment ~elations with 

Native American Tribal Governments 

The United States Government has a unique legal relationship with Native ~erican tribal governments as set forth in 

the Constitution of the United States, treaties, ~tatutes. 

and court decisions. As executive departments and agencies 

1.!noe:take activities affecting Native American tribal rights 

er trust resources, such activities should be implemented in a kno~ledgeable, sensitive manner respectful of tribal sovereignty. Today, as part of an historic meeting, I am outlining principles 

that executive departments and agencies, including every component bureau and office, are to follow in their interactions · ~ith Na:ive American tribal governments. The purpose of these 

principles is to clarify our responsibility to ensure that the 

Feceral Gove::nment operates within a government-to-government 

relationship with federally recognized Native American tribes. 

lam strongly committed to building a more·effective'day-to-day 

working relationship reflecting respect for the rights of selfgoveI'llment due the sovereign tribal governments. · • 

!n order to ensure that the rights of Bovereign tribal 

gove:-nments are fully respected, executive branch activities 

shall be guided by the following: 

Ca) The head of each executive department and agen~ 

shall be responsible for ensuring that the department or agency 

ope:ates within a government-to-government relationship with 

federally recognized tribal governments. 

~003 
.· 

:•1>101195 09:06 "0'202 586 0230 Cong. Aff. CP-JO 

2 

Cb) Each executive department and agency shall consult, 

to the-greatest extent practicable and to the extent permitted by law, with tribal.governments prior to taking actions that affect 

£ederally recognized tribal governments. All such consultations 

are to be open and candid so that all interested parties may 

evaluate for themselves the potential impact cf relevant 

proposals. 

. (c) ~acb ex~cutive department and agency ~hall assass 

the impact of Federal Government plans, projects, programs, 

and activities on tribal trust resources and assure that 

tribal government rights and concerns are considered during 

the development of such plans, projects, .Programs, and 

activities. 

(d) Each executive department and agenc:y shall take 

app=opriate steps to remove any procedural impediments to working 

directly and effective~y wich tribal governments on activities tha~ affect the trust property and/or governmental rights of the 

t::-ibes. · · · 

(e) Each executive department and agency shall wor·k 

cooperatively with other Federal departments and agencies to 

enlist their interest and support in cooperative efforts, where 

appropriate, to accomplish the goals of this memorandum. 

(f) Each executive department and agenc:y shall apply 

the requirements of Executive ~rders Nos. 12875 (•Enhancing the 

Intergovernmental Par~nership") and 12866 (•Regulatory Planning and Review") to design solutions and tailor Federal programs, in 

appropriate circumstances, to address specific or unique needs of 

tribal communities. 

The head of each executive department and agency shall ensure 

that the department or agency's bureaus and components are fully 

aware of this memorandum, chrough publication or other means, and 

that they are in compliance with its requirements. 

This memorandum is intended only to improve the internal 

management of the executive branch and is not intended to, 

and does not, create any right to administrative or judicial 

review, or any other right or benefit or trust responsibility, . substantive or procedural, enforceable by a party against the. 

United States, its agencies or instrumentalities, its officers 

or employees, or any ~ther person. · 

The Director of the Off ice of Management and Budget is authorized 

and directed to publish this memorandum in the Federal Reoister. 

ill 004 l 
06/0J/95 O!l:Oi 

PURPOSE 

"0'202 586 0230 Cong. Aff. CP-10 

U.S. DEPART1\1ENT OF ENERGY 

Al\-fERICAN INDIAN POLICY 

This policy o_utlines the principles to be followed hy the Department of Energy {DOE) in its 

interaction with federally-recognized American Indian Tribes. Jt is based on Federal 

policy, treaties, Federal Jaw and the DOE's responsibilities as a Federal agency to ensure 

that tribal rights and interests are identified and considered in pertinent decision-making . 

The policy pro,·idC's general guidance to DOE personnel ror management acrions affecting 

American Indians and emphgsizes implementation of such activities in a knowledgeable 

and sensitive manner. This policy does not afTtl"f DOE inl~ractions with State-rcco~niztd 

Tribes with respect to matters provide.d for by statute or regulation. 

DEFINIT101' 

11'\DlA!" COt:'~TRY means (a) all land within the limits of any Indian resen·ation under 

the jurisdiction of the United States Government, notwithstanding the issuance of any 

patent, and, including rights-of-way running through the resen·a.tion, (b) all dependenl 

Indian communities within the borders of 1hc l:niled S1ates whether within the original or 

subsequently acquired tf'rritory thereof, and whether within or without the limits of a stair. 

and (c) all Indian allotments, the Indian titles to which have not been extinguished, 

in~luding rights-of-way running through the same. (18USCS I 151) 

BACKGROUND 

American Indian Tribal Governments have a special and unique legal and political 

relationship with the Go,·ernment of the United States, defined by his1ory, treaties, 

statutes, court derisions, and the U.S. Constitution. The United States has entered into 

more than 600 treaties and agreements with American Indian Tribes. These treaties and 

agreements create a variety of legal responsibilities by the United States toward American 

Indian Tribes and pro\'idr the basis for a government-to-government relationship. Other 

responsibilities toward American Indians are created by Congress through statutory 

enactments. Although the Depanment of the Interior, through the Bureau of Indian 

Affairs, has the principal responsibility for upholding ob1igations of the Federal 

Government to American Indians, this responsibility extends to all Federal agencies. 

il)005 
'8'202 586 0230 Cong. Aff. CP-10 

POLICY 

1. mE DEPARTMENT RECOGNIZES AND COMMITS TO A GOVERNMENT-TOGOVER"'IJ!'\IENT REL.A TIONSHIP WITH AMERICAN INDIAN TRIBAL 

GOVERNMENTS. 

.7: 

DOE recognizes Tribal governments as sovereign entities with, in mosl cases, primary 

authorily and responsibility for Indian country. In keeping with the principle of American 

Indian self-government, the Department will view Tribal governments as the appropriate 

non-Feder.al parties for making decisions affecting Indian country. its energy resources and 

em·ironmcnts, and the heallh and welfare of its populace. The Department will r~cognize 

the right of each Tribe to set its own priorities and goals in developing and managing its 

energy resources. The Department recognizes that some Tribes have treaty-protected 

interests in resources outside rescn·ation boundaries. 

2. DOE RECOGl"IZES THAT A TRUST RELATIONSHIP DERIVES FROM THE 

HISTORJCAL RELATIOl"SHIP BET\VEEN THE FEDERAL GOVERNMEl\T AND 

AMERJCAN INDIAN TRIBES AS .EXPRESSED l1'i CERTAI1' TREATIES AND 

FEDERAL INDIAN L4 \\'. 

In keeping with the trust responsibility, the DOE will consult with Tribal governments 

regarding the impart of DOE actMties on the energy, em·ironmental and natural resources 

of American Indian Tribes when carrying out its responsibilities. 

3. THE DEPARTME~T WILL CONSULT \\'ITH TRIBAL GOVER~MENTS TO 

ASSURE THAT TRIBAL RIGHTS AND CO~CERNS ARE CONSIDERED PRIOR TO 

DOE TAKING ACTIOl'iS, MAKING DECISIONS OR IMPLEMENTING PROGRAMS 

THAT MA\' AFFECT TRIBES. 

The DOE will take a proacth·e approach to solicit input from Tribal governments on 

departmental policies and issues. The Department will encourage Tribal Governments and 

their members to participate fully in the national and regional dialogues concerning 

departmental programs and issues. 

4. CONSISTENT \Vlnl FEDERAL CULTUR4L RESOURCE LAWS AND THE 

AMERICAN INDIAN RELIGIOUS FREEDOM ACT (P.L. 95-341), EACH FIELD 

OFFICE OR DOF. INSTALLATION \VITH AREAS OF CULTURAL OR RELIGIOUS 

CO~CERN TO AMERICA1'' ISDJANS 'WlLL CO~SUL T \VJTH THEM ABOUT THE 

POTENTIAL IMPACTS OF PROPOSED DOE ACilONS ON THOSE RESOURCES 

AND WILL A VOID UNJ\9ECESSARY L~TERFERENCE w1m TRADmONAL 

RELIGIOUS PRACTICES. 
06101/95 09:08 '6'202 586 0230 Cong. Aff. CP-JO 

DOE.. will comply with all cultural resource legislation and implementing regulations in thr 

management and operation of its programs and facilities. 

Consultation with appropriate American Indian tribal governments is part of the 

compJiance process involving Federal cultural resource Jaws and the American Indian 

Religious Freedom Act. Consultation may includ~ but is not limited to (1) the exchange or 

information concerning the location and management of cultural resources (2) repatriation 

or other disposition of objects and human remains (3) access to sacred areas and 

traditional resources located on DOE lands in accordance with safety, health and national 

security considerations, and (4) assessment or potential community impacts. 

S. THE DEPARTMENT WILL IDENTIFY AND SEEK TO REMOVE IMPEDIMENTS 

TO WORKL~G DIRECTLY AND EFFECTIVELY WITH TRJBAL GOVE~"MENTS 

ON DOE PROGRAMS. 

DOE recognizes that there may be regulatory, statutory and/or procedural impediments 

whkh limit or restrict our ability to work eITecti\·ely and consistently with Tribes. In 

keeping with this policy, we will seek to remove any such impediments. Additionally, we 

will, to the maximum txtent permitted by law, apply existing statutory, regulatory. and 

procedural requirements in a manner that furthers the goals of this policy. 

6. THE DEPARTMENT WILL \\'ORK WITH OTHER FEDERAL AND STATE 

AGE!\CIES TBA T HA VE REL~ TED RESP01'SIBILITIES TO CLARIFY mE ROLES, 

RESPO!'lSIBILITIBS AND RELA TIONSilIPS OF OUR RESPECTIVE 

ORGANIZA TIOl'iS AS THEY RELATE TO TRIBAL MA lTERS. 

DOE will seek and promote cooperation with other agencies that have related 

responsibilities. In many areas or concern to ·DOE, cooperation and mutual consideration 

among neighboring governments (Federal, State, Tribal and local) is cssentia1. 

Accordingly, DOE will encourage early communication and cooptration among all 

governmental parties. This recognizes that tht principle of comity among equals and 

neighbors often serves the best interests or all parties. 

7. THE DEPARTMENT WILL INCORPORATE THIS POLICY INTO ITS ONGOING 

AND LONG-TERM PLANNING AND .MANAGEMEl'\T PROCESSES. 

It is key to this effort to ensure that the principles of this policy are effectively 

institutionalized by incorporating them into the Department's ongoing and long-term 

planning and managemrnt processes. Department managers will include specific 

programmatic actions designed to facilitate tribal participation in Departmental program 

planning and activities. 

111 oo; 
.....:...._ _ _,__ _____________________________________ _ 

I 

'..f. 

- I 

! 

f 

.. 

·- -~Sr.t~ . .. ft. 

-~ 

.MEMORANDUM 

UNfTEO STATES ENVIRON.MENTAL PROTECTION AGENCY 

WAsHINQTON, D.C. 20460 

HAR 1·~9' 

81JB1ECT: EPA Indian Policy n£ ADLINSTRATOR 

TO: All Employees 

In 1984, E;PA became the first ~ede~ agency to adopt a formal Indian Policy (copy 

attached). BP.A is proud of that Policy,· which has provided the framework for our · 

developing partnership with Tribes.· Since 1984 Agency programs have c~ged and several 

of our statutes have been amended t:<> address .Tribal needs. _Nevertheless, the core principle 

of the Policy, a commitment to working with Federally recognized tribes ·on a govemmentto-govemment basis to enhance environmental protection, has been reaffirmed by President· 

Clinton and remains the cornerstone of EPA's Indian program. Accordingly, therefore, I 

formally reaffirm the EPA Indian Poli~y. 

The challenge for EPA today is to impl~ment.its Policy effectively. Previous 

administrations have addressed implementation, both in· a 1984 Poliqy Implementation 

Guidance and a 1991 Concept Paper. We must now update and strengthen these docuinents 

and our implementation programs to reflect-the goals and values of our long-term vision and 

strategic agenda. A key element for successfully implementing the Indian Policy must be a 

commitment to fully institutionalize the Policy into the Agency's planning and management 

activities. · 

On March 7, Martha Prothro, formerly Deputy Assistant Amirlnistrator for Water, 

joined my staff to assist in developing our Tribal Programs. I have asked Martha and Bill 

Yellowtail, Regional Administrator, EPA Region VIII, to fonn a team of Agency leaders to 

make recommendations on EPA/Tribal relations and the implementation of tl,.e Policy. The 

wodc of this group should help the Agency develop the best structnre and adopt ~e best · 

strategies .for implementing the goals of the Policy. The team will work with Tribal · 

representatives, including the Tribal Operations ~ommittee and others, in drafting ·nc-w 

implementation guidance. This guidance will provide a blueprint. for transforming the · 

Policy's vision into a reality for federally recognized Indian Tribes, including Alaskan 

Tribes. . 

. . 

· nus is an exciting opportunity for us to develop a stronger partnership with Tribal 

govemmentS iii protecting the environment. I ask all of you to help make this effort a great 

~=- .. _fL,~~ 

. ATIACHMENT 6 

133 
11/8/84 

EPA POLICY FOR THE ADHINlSTRATIOH OF ENVIRONMENTAL . PROGRAMS ON INDIAN RESERVATlOKS 

I HTROOUCTION 

The President published a Federal Indian Policy Ot1 "January 24. 1983. 

suppprting the primary role of Tribal Governments· in matters affecting 

·American Indian ·reservations. That policy ·stressed two related themes: 

(1) that the Federal .Government will pursue· the principle of Indian 

"self-government" and (2) that it'will work cUrectly with Tribal 

Governments on· a "government-to-government" basis. . · · · 

The E~vironmental Prot~ction Agency (EPA) has previously issued general 

statements of policy :which recognize the importance. of Tribal Governments . in regulatory activities that impact reservation environments. It is the 

purpose of this state111ent to consolidate and expand on existing EPA Indian 

Po.licy statements in a manner consistent with the overall Federal position 

in support of Tribal "self-government" and "government-to-government" relations between Federal and Tribal Governments. This statement sets forth 

the principles that will gu1de t~e Agency· in dealing with Tribal Governments 

and· in responding ·to the problems of envi"ronmental. management on klerican 

Indian reservations in order to protect human health and the en~f ronment• 

The Policy is intended to prov;de guidance for EPA program inanagers in the 

conduct of the Agency's congressionally mandated responsibilities. As 

such. it applies ta EPA only and does not articulate policy for other 

Agencies 1n the conduct of their respective responsibilities~ 

It. is important to emphasize that the implementation of regulatory 

programs which wil 1 realize the~. pr1nciples on Indian Reservation's cannot 

be accomplished imediately. Effecthe implementation will take careful 

and conscientious work ~Y EPA, the Tribes and many others. In many cases. 

it will require changes in a~plicable statutory authorities an~ regulations. 

It wil 1 be necessary co proceed f n a carefully ·phased way, to 1 earn f ro111 

successes and failures. and to gain experience. Nonetheless, ·b.Y. beginning 

wort on the: priority problems that exist now and continuing f n the cUrect1on 

·· ·~stablished under these ~rfnciples, over time we can significantly enhance 

environmental ·qualtty on reservation landsc. · 

POLICY 

In carrying out our responsibilities on In~i&n reservations, the 

fundamental objective of the Environmental Protection Agency is to protect 

human health ·and 'the envi.ronment. 1'.he keynote of this effort will be to 

give special consideration to· Tribal interests fn mating Agency policy, 

and to insure the. close involvement of Tribal Government~ in mating 

decisions and managing envf ronmental ·programs affecting reservation lands• 

To meet this objective. the Agency will pursu~ the fallowing princ:iples: 

134 

.... 
... 

1. .:'fHE AGENCY STAHOS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS 

ON A ONE-TO-ONE BASIS (THE. -GOVERHHENT-TO-GOVERNHEHT" RELATIOHS~IP), RATHE~ 

THAN AS SUBOlVlSIOHS OF OTHER GOVERHHEK'rS. 

EPA recogi1zes Tr1bal ·Gove"rnirents as sovereign entities w1th prirrary 

·author1ty and responsibility for the reservation populace. Accol"dingly, 

EPA.will worlc directly with Tribal Go~ernrrents as the indepe~dent authority 

for.reservation affairs,· and not as po11ti.cal subdivision: of States or· 

other governirental units. 

·-~. 

2. THE AG£NCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES 

FOR SETTiNG STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AHO MANAGING 

PROGRAMS FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS ANO REGULATIONS • . In lcee"ping with the principle of Ind.1an self-government, the A;ency 

wil 1 view Tribal Governirents as the appropriate non-Federal parties for 

making· dedsi-ons and car:-ying out ·program responsibilities affecting 

Indian reservations, their environaents, and the health and welfare of 

the reservation populace. Just as EPA's deliberations ·and activities have 

trad1t'ional 1y involved the interests and/or participatfon of State Governments, EPA will look directly to Tribal Governments to play this lead. role 

fo:- inatt~rs affecting reservaticn environrrents. 

3. THE AGENCY WILL TAKE AFFIRMATIVE SiEPS TO ENCOURAGE ANO ASSlSi 

.TRIBES lH ASSUMING REGULATORY ANO PROGR~ MANAGEMENT RESPONSiSILlTIES 

FOR RESERVATION LANDS. . . The Agency will" assist interested Tribal Governll"l!nts in developing 

programs and in preparfog to assurre regulatory and program· management 

respons1bi11ties for rese:-vation lancis. Within the constraints of E?A's 

authority and resources, this aid will include providing grants and other 

assistance to Tribes similar to that we provide .s:.ate Governirents. The 

Agency will encou~age Tribes to ass~me delegable :-~sponsibilities, Ci:!.. 

responsibilities 'Which· the Agency has traditionally delegated to State 

Governments for non-reservation lands) under terms ·similar to those 

governing de.legations· to States. 

Until Tribal Governll"l!nts are willing and able to assulTI! full responsibility for delegable progra·ms, the Agency wi l1 reta1~ responsibi Hty 

for managing programs for reservations (unless the State has an eii::press 

grant -of jur1sd1cticn from Congress sufficient to support delegation to 

the State Governirent). Where EPA retains such responsibility, the Agency 

wilt encourage the Tribe 'to· par'tic1pate in policy-mating and to assuire 

appropriate lesser or partial roles in th~ rrana·gelll!nt of . reservation 

. programs. 

135. 
·. 

4. THE AGEtiC'f WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL·AND 

PROCEDURAL IHPEDIHEHTS TO WORKING DIRECTLY" AHO EFFECTIVELY WITH TRIBAL . GOYERHHENTS O~ RESERVATION PROGRAMS. . ; . 

A nurrber of serious constraints and uncertainties 1n .the language 

of f?Ur· statutes and regulations have limfted our. ~b111ty to work d1rettly 

and effectiwly with Tr1 bal Governnents on reservat1on problems; As 

impediments in .our procedures, regulations or statutes are identified 

which 11mit·our ability to work effecti-vely with TT1bes ·consistent with th~s Policy, we will seek to remove tho~e impediments. · 

5. THE AGENCY, IH KEEPING WITH THE FEDERAL TRUST ~ESPONSIBILITY. WILL 

ASSURE THAT .TRIBAL COHCERHS AHO INTERESTS ARE CONSIDERED WHENEVER·EPA'S - ACTIONS ANO/OR DECISIONS HAY AFFECT RESERVATION EHVIROHHEHTS • 

. EPA recognizes that a trust r-esponsf bility derives from the historical r-~lationship between the Feder-al. Governirent and Indian Tribes 

as expressed in cer-tain treaties and Federal Indian law~ In keeping 

w;th that trust responsibility, the Agency_ will endeavor- to pr-otect 

the environn:!ntal inter-ests of Indian Tribes when carrying out its 

responsibilities that may affect.the r-eser-vations. · 

6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL. STATE AMO LOC~L GOVERNMENTS TO RESOLVE ENVIRONHEHTAL PROBLEMS OF MUTUAL CONCERN. 

Sound environlll!ntal planning and management require the cooperation 

and lll.ltual consideration of· nef ghboring governRnts. ~ether- those 

governrnents be neighbor-ing States, Tr-ibes, or local units of governRnt. 

Accor-dingly, EPA will encour-age early communication and ·cooperation 

among Tr-ibes, States ·and local governments. Th1s is not intended to 

lend Federa 1 support to any one party to the Jeopardy of the interests 

of the other. Rather, it recognizes that 1n the field of environmental 

regulation, problems are often shar~d and the pr-inciple of c~ity 

bet~een equals an~ neighbors often serves the .best int~rests of both. 

7. THE AGENCY WILL WORK WITH OTHER FEDERM. AGENCIES WHICH.HAVE RELATED 

RESPONSIBILITIES ON INDIAN RESERVATIONS TO EHl.IST THEIR INTEREST AHO 

SU?PORT IN COOPERATIVE . EFFORTS TO HELP TRIBES A!>;UKE £HVIROHH£NTAL 

PROGRAH R~PQffSIBILlTIES FOR RESERVATIONS. 

EPA will seek and promote cooper-ation between Federal agencies to 

protect human health and the environment ·on reservations. We will 

work with other agencies ta clearly identify and delineate.the roles. 

r-esponsibi lit1es and relat1onships of our. respect1,-e organizations. anc! 

to assist·Tribes in developing and managing env1rcn~ntal progr-ains fcrr-eservat1on lands. · 

136 

-.. •. -

-~ 

. ... 
"' . •. 

. 8~ THE.AGENCY Will STRIVE TO ASSURE COHPLIANCE 0WITH ENVIROHHEHTAL STATUTES 

ANO REGULATIONS ON IMDlAN RESERVATIONS. · " 

In those cases where fac111t1es aimed or ·managed by Tr"iba'l Govemments 

are not in compliance .with ·Federal environf!!!ntal s~.atutes, EPA w111 work 

cooperatively with Tribal leadership to develop means to achieve co~11ance, 

·provtd1_ng"technical support· and consultation as necessary to enable Tribal 

facilities to comply. Because of the distinct.status of Indian Tribes and the 

complex legal 1ssues involved, direct EPA action through the judf c1a1 or 

acM!inistrative process will be considered where the Agency determines, 1n its 

judgnent,"that: (l) a s1gnifican.t threat to human health or the env1ronnent 

.exists, (2) such action would· reasonably. be expected to ach1e~e effective 

results in a tinely iranner, and {j) the federal "Goyernnent. cannot utilize 

other.alternatives.to correct 'the problem in a timely fashion. 

In thC!se cases' ·w'\iere ·reservation faci 1 ities a_re clearly owned or managed 

by private parties and there is :no substantial Tribal interest or control involved~ the Agency will endeavor to act in cooperation with the affected 

Tribal Government, but will othe,....,ise ·respond to noncolfl)liance by private 

parties on Indian reservations as the Agency would to noncompliance by the 

private sector elsewhere in the country. Where the Tribe has a substantial 

proprietary interest .in, or cont:-ol over, the priVately owned or managed 

facility, EPA will respond as described in the first paragraph above. 

9. THE AGENCY Will INCORPORATE THESE INDIAN POLICY GOALS INTO.ITS PLANNING 

ANO MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING GUIDANCE, LEGISLATIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM ANO ONGOING POLIC'( ANO 

REGULATION DEVELOPMENT PROCESSES. . 

It is a central P.Urpose of this effort to ensure that the principles 

of thf s Policy are effectively institutionalized by incorporating them into 

the ~gency's ongoing and long-term planning and managenent processes. Agency 

managers will ·1nclude specific progranrnatic actions designed to resolve prob- . lems on Indian rese~vations in the Agency's existing fiscal year and long-term plannin~ and managenent processes. 

?rdl!-9,e.,~ William D. Ruckelshaus 

·' 

137 . 
....... _ ... --··-~--' -·- _;_ __ .. :..::,: . ...;:· .. :..:.:::.··..: .. ..:~ 

UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY . . .. WASHrNGTON:o.c. 20460 

·. 

NOV 81984 OO"FIC.E Ot 

MEMORANDUM THE ADMINIST .. ATOR 

SUBJECT: 

FROM: 

Indi-an Policy Implementation Guidance. · . ,,/-7:-2 . ~ ---;>r? 

Alvin i.. Alm ~ L.. c.·-~ Deputy Administrator " 

!O: Assistant Administrators 

Regional Administrators 

General Counsel 

INTRODUCTION 

The Administrator has signed the· attached EPA Indian Policy. Thh 

document sets forth the broad principles that will guide the Agency in 

its relations with American Indian Tribal Governments and in the administration of EPA programs on Indian reservation lands. 

This Policy concerns more than one hundred federally-recognized 

Tribal Governments and the environment of a geographical area that is 

larger than the combined area of the States of Maryland, Hew .:Jersey, 

Connecticut, Massachusetts, Vermont, New Hampshire and Haine. It is an 

important sector of the country, and constitutes the remaining lands of 

·America's first stewards of the environmen_t. t~e American Indian Tribes. 

The ~o1icy places· a strong emphasis on incorporating TribaJ Governments into the operation and management of EPA's delegable programs. 

This concept is based on the President's Federal India~ Po'!.icy published 

on January 24, 1983 and the analysis, reco11111endations :.M Agency input 

to the EPA Indian Work Group's Discussion Paper, Administration of · Environmental Programs on American Indian Reservations (July 1983). 

TIMING ANO SCOPE 

Because of the importance of the reservation environments, we must 

begin inmediately to incorporate the principles of EPA's Indian Policy 

into the conduct of· our ~veryday business. Our established operating 

procedures (including long-range budgetary and operational planning activities) have not consistently focused on the proper role of Tribal Governments or the sp~cial legal and political problems of program management 

on Indian lands. As a result, it will require a phased and sustained 

effort over time to fully implement the ·principles of the Policy and to 

take the steps outli~ed·in this Guidance. 

9R 
I. . . . ·• . I 

... I •• 

S~e Regions and Program Offices· have already made ind1Vidua.1 starts · along the lines· of the Polity and 'Guidance. I belie·ve .that· a ~lear Agency-wide policy wi 11 enab 1 e a 11 programs to bu fl d on these efforts so 

that. within the limits of our legal and budget!lrY:constraints. ·the' Agency · as a lrllole can make respectable ;progress. 1n the next year. . · 

·- .As we begin the first"year of ·operat1o.ns.under the Indian .Policy, we 

canriot expect to solve all of.the p'roblems we· will face .fn administering 

programs under.the unique legal and .Political circumstances present~ by 

Indian reservations. · We can. h'owever 1 cor.centr~te· O'l specific priority 

problems and issues and proceed to .address these systP.matically and carefully in the first year. · With this ··general emphasis, I believe that we 

can make respectable progress and establ f sh good precedents for workf ng 

effectively with· Tri bes.. By work1ng w: :;r:iin· -a manageable· scope and pace, 

we can develop a coordinated base·which can be expanded, and, as approprhte, 

accelerated in the second and third years of operations under the Policy. 

In addition to routine application. of the Polf~y and thii- Guidance in 

·the conduct of our everyday business, th~ first year's implementation effort 

will emphasize concentrated work: on a discrete number of representative 

problems through cooperative programs or pilot projects. In the Regions, 

this effort should include the identification and initiation of ·work on 

priority Tribal projects. At Headquarters, ·it should involve the resolution 

of the legal, policy and procedural problems which hamper our ability to 

implement the kinds of projects identified by the Regions. 

The Indian Work Group (IWG), which is chaired by the Director of the 

Office of Federal Activf ties arid composed of representatf ves of key. regional 

and headquarters offices, wi 11 faci 1 itate and coordinate these efforts. 

The IWG wil 1 begin immediately· to help identify the specific projects 

which may be ripe for implementation and the problems ·needing resolution 

in the first year. · 

Because we are starting in "mid-stream, 11 the implementation ·effort 

will necessarily require some contribution of personn~l time and funds. 

While no one program will be affected in a major fashion, almost .all Agency 

programs are affected to some degree. I do not expect the investment in 

projects on Indian Lands to cause any serious restriction in the .States' 

funding support· or in their ability to function effectively. To preserve · the flexibility of each Region and each program, we hav.e not set a target 

for allocation or FY 85 funds. 1 am confident, however. that Regio~s and 

program offices can, through readjustment of existing resources, demonstrate 

significant and credible progress in the implementation of EPA's. Policy in 

the next year. 

99 
~· 

:. 

.. 

ACTIOfl 

Subject to these constraints, Regions and program"inanagers should now 

initiate actions to implement the principles of the Indian Policy. ·.The 

eight categories set forth below will direct our initial implementation 

activi't"ies. Further guidance will .be provided by the Assistant Administrator for· External Affairs as experience indicates a need for such guidance .. . . 

1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS 

LEAD AGENCY ClEARINGHO~SE AND COORDINATOR FOR INDIAN POLICY MATTERS. 

This responsibility will include coordinating the development of 

appropriate Agency guidelines pertaining to Indian. issue$. the . implementation of the Indian Policy and this Guidance. In this effort 

·the Assistant Administrator for External Affairs will rely upon the. 

assistance and support of the EPA Indian Work Group • 

2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE ASSISTANT 

ADMINISTRATOR FOR EXTERNAL AFFAIRS lN DEVELOPING AND RECOMMENDING DETAILED . GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT 

ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE. GENERAL COUNSEL. SHOULD 

DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP ANO PROVIDE 

THEM WITH ADEQUATE ·TIME AND RESOURCES NEEDED TO CARRY OUT THE IWG'S 

RESPONSIBILITIES UNDER TtiE DIRECTION OF THE ASSISTANT ADMINISTRATOR FOR 

EXTERNAL AFFAIRS. . 

The Indian Work Group, (IWG) chaired by_ the Director of the Office of 

.Federal Activities, will be an jmportant entity for consolidating the 

experience and advice of the key Assistant and Regional Administrators on 

Indian Policy matters. It will perform the following functions: identi.fy 

specific legal, policy,, and procedural impediments to working directly 

with ir:ibes on reservation problems; help develop appropriate guidance 

for overcoming such impediments; reconmend opportunities for implementation 

of appropriate programs or pi 1 ot projects; an<I perf orrn other serv"i ces in 

support of .Agency managers in implementing the Indian Policy. 

The iJ:liti al task of the IWG will be to develop ·reconmendations and 

suggest priorities fo.r specific opportunities for program implementation 

in the first year of operations under the Indian Policy and this Guidance. . . To accomplish this, the.General Counsel and each Regional and Assistant 

Administrator must be actively repre'sented on the IWG by a staff member 

authorized .to speak · for his or· her office. Further, the designated 

representative(s) should be afforded the time and resources, including 

travel, needed to provide significant staff support to the work of. the 

IWG. 

100 
3. ASSISTANT ANO REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND . Llf\ISON WITH fRlBES, PROVIDING AOEQUATE INFORMATION· TO ALLOW THEM TO WORK' ~ITH US IN AN Ir;FORMED WAY. · . ·: . . : 

· In the first thirteen ·years 'of the Agency's existe11ce9. we have ·trorked 

hard to establish working relationships with State Governments. providing. 

baskground information and ·sufficient interpretatjon . and explanations to· 

enaol-e them to work effectively with us 1n ~he development of cooperative 

State programs under our various .stat~~es •. I~ a ~1.milar manner, EPA manager.s 

should try to establish dfrect 1 face-to-face contact (pl'.'eferably on the 

reservation)· whh Tribal Government officials. Thi"s· liafson is essential -to 

understanding Tribal needs, perspectives and.priorities •. It will also foster 

Tribal understanding of EPA's programs and procedures needed to deal effectively with us. . . . · . . · 

4. ASSISTANT AND REGIONAL· ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET 

TRIBAL NEEDS, WITHIN· THE CONSTRAHffS IMPOSED BY COMPETING PRIORITIES .AND BY 

OUR LEGAL AUTHORITY. . ; :. ~ · 

As _Tribes move to assume responsibilities· 'similar to ttlose borne by EPA 

or State Governments, an appropriate block of fun~s must be set aside to 

suppo:t reservatio~ abatement, control and compliance activities. 

Because we want to begin to implement the Indian .Policy now.· we cannot ·. wait until FY 87 to formally budget for programs on Indian lands. Accordingly, · for !Tiany programs, funds for initial Indian projects in FY 85 and FY 86 

w11.l need to ·come from· resources currently planned for support to EPA-and 

State-managed programs meeting similar objectives. As I stated earlier, we 

do not.expect to resolve all problems and address all environmental needs on 

reservations inrnediately. However, we can make a significant beginning 

without unduly restricting our ability to fund ongoing programs. 

l am asking each Assistant Administrator and Regional Administrator to 

take measures within his or her.discretion and authority to provide sufficient 

staff time and grant funds to·allow.the Agency to initiate projec~s on Indian 

1 ands in !='Y 85 and FY 86 that wi 11 constitute a res pee tab 1 e step towards 

implementation of the Indian Policy. 

5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT PROVIDED BY TH£ 

· GENERAL COUNSEL, SHOULD ASSISI TRIBAL GOVERNMENTS IN PROGRAM DEVELOPMENT AS 

THEY _HAVE DONE FOR THE STATES. . 

The Agency has provided extensive· staff work and assistance to State 

Gover·nments over the years in the development of environmental programs 

and program management cal>abilities. This assistance has become a routine 

aspect of Federal/State relations, ·enabling an~ ·expediting the _States' 

assumption of delegable programs under the various EPA statutes. lhis •front 

end" investment has promoted cooperation and. increased State involve~ent 

in the regulatory procec;s. · · 

101 
. . As the Agency begins to deal ·-with Tri~al Governments -as· ·partners in 

· reservation environmental progranming·,. w~ will find a similar ·ne_ed for EPA 

assistance. Many, Regional and. program personnel have exten~ive experience 

'in working with States on program design :iJnd development; their.· expertise 

should be used to ·assist Tribal.r?overnments.where needed. 

'6. ASSiSTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL . ·COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED ·INPUT 

INTO EPA'S DECISION-MAKING AND PROGRAM .HAHAGEHENT ACTIVITIES WHICH AFFECT 

RESERVATION ENVIRONMENTS. . ·. · - · 

. Where EPA . manages Federal programs . and/or makes decisions relating 

directly or indirectly to reservation environments, full consideration and 

weight should be given to the public polic1es, priorities and·concerns of the 

affected Indian Tribes as expressed through·their Tribal Governments. Agency 

fl!anagers sh9uld make ·a special effort to inform Tribes of ·EPA decisions and 

a~tivities which - can, affect their reservations and solicit their input as ·we ·h~ve done with State Governments. Where necessary, this .should include providing the necessary infonnation, explanation and/or briefings needed to foster 

the informed participation of Tribal Governments in the Agency's standardsetting and policy-making activities. · 

7. ASSISTANT ANO REGIONAL ADMINISTRATORS SHOULD, TO THE HAXIHUH FEASIBLE 

EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND PREFERENCES INTO EPA'S POLICY 

DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING.RESERVATIONS. 

·It has been EPA's practice t·o seek out and accord special consideration 

to local interests and concerns,._ within the .limits allowed by ·our statutory 

mandate and nationally established criteria and staridards. Consistent with 

the Federal and Agency policy to recognize Tribal Governments as the primary 

voice for expressing public policy on ~eservations, EPA managers should, within 

the limits of their flexibility', seek and utilize Tribal input and preferences 

in those: situations where we have traditionally utilized State or local input. . . 

We recognize that conflicts in policy, priority or preference may arise 

between States and Tribes as it does between neighboring States. As in the 

case of conflicts between neighboring States, EPA will encourage early conmunication and coop~ration h£·!ween Tribal and State Governm~nts to avoid_ and resolve 

such issues. This is not intended to lend Federal support to any one party in 

its dealings with the other. Rather, it recognizes that in the field of environmental regulation~ problems are often shared and the principle of comity betwe_en 

equals often serves the interests of both. . . 

= .. ·Severa 1 of the envi ronmenta 1 statutes include ·a conflict reso 1 ut ion mechan.: 

. ism-which enables EPA to use its good offices to balance and resolve the co~­

fl ict. These procedures can be applied to conflicts between Tribal and State 

Governments that cannot otherwise be resolved. EPA can play a moderating role 

by following the conflict resolution principles set by the statute, the Fede~al 

trust responsibility and the EPA Indian Policy. 

102 
:· 

i 

I 

... 

· : a •. ASSISTANT ·AD~INISTRATbRs,: REGION~· ADHINISTAATORS AND THE. GENERAL COUNSEL 

SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNHENTS·TO ACHIEVE. COMPLIANCE WITH 

ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT 

,WITH THE PRINCIPLE.OF JNDIAN SELF~GOVERNMENT. · 

The EPA Indian Policy .r:ecogn1zes ·Tribal Governments as the key 

iovemments having respons1b111ty .for ·Jnatters. affecting the health and 

welfare of"the Tribe 0 ~cord1ngly, where tribally owned Qr managed. 

facilities do not meet Federally established standards, the Agency ·w111 

endeavor to work with the Tribal leadership tq·enable t~e Tribe to · achieve compl.iance. Where reservation facilities .are clearly owned _or 

managed by private. parties and there is no substantial "fribal interest 

or. control involved, the Agency wn 1 endeavor to act in cooperat~on with .th.e 

affected Tribal Government, but will otherwise· re~pond to noncompliance by 

private parties on Indian reservations as we do to noncomp11a'1ce by the 

private sector off-reservation.· . . • I 

. . ,· . . Actions to· enable and ensure compliance by Tribal facilities. w'th 

Federal statutes and regulations include providing consultation and 

technical support to Tribal leaders and managers concerning the impacts 

of noncompliance o~ Tribal health a·nd the reservation environment 

and steps needed to achieve such compliance. As appropriate, EPA may 

also develop compliance agreements·with Tribal Governments and work 

cooperatively with other. Federal -agencies to assist Tribes in meeting 

Federal standards. · 

Because of the unique· lega1 and political status of Indian tribes 

in the Federal System, direct EPA actions against.)ribal. facilities 

through the judicial or admih1s~rative process will be considered where 

the· Agency determines, in its judgment,. that: (l) . a sf gnificant threat to 

human health or the environment exists, (2) such action would reasonably be expec~ed to achieve effective results in a timely manner, and (3) the Federal 

Government cannot utilize other alternatives . to correct the problem in a 

timely fashion. Regional Administrators proposing to initiate such action 

should first obtain concurrence from the Assistant Administrator for Enforceme·nt and Compliance Monitoring, who wn 1 act in consultation with the Assistant Administrator for External Affairs and the General Counsel. In emergency 

situations, the Regional Administrator may issue emergency Teq>orary Restraining Orders, provided that the appropriate procedures set forth in Agency 

delegations for such actions are followed. · 

. 103 
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9. ASSISTANT ADMINISTRATORS, REGIONAL:. ADHIHISTRATORS Atm ·m· GENERAL COUNSEL 

SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE. PLANNING "ANO. 

PROGRAM MANAGEMENT ACTIVITIES, INCLUDING .. BUDGET. OPERATING GUIDANCE, MANAGEMENT 

ACCOUNTABILITY SYSTEMS AND ~ERFORHAH~E STANDARDS. 

. In order. to carry .. out the principles of tl)e EPA . Indian Policy ·and work 

effectively wfth Trfbal Governments on a long-range basis. ft will be ·necessary 

to institutionalize the Agency's policy goals in the management systems "that 

regulate Agency· behavior. Where we have systemati.cally incorporated State needs, 

concerns and cooperative roles into our budget, Operating Guidance, management 

accountability systems and performance standards. we must now begin to factor·the , Agency's Indian Policy goals into these sam~ procedures and activities • 

. Agency managers should begin to .consider Indian reservations and Tribes 

when'conducting routine planning and management activities or carrying out 

special policy analysis activ;tie~. ·In addition; the IWG, ~perating under the 

direction of the Assistant Administrator for External Affairs and with . ·assistance from the Assistant ··Administrator for Policy, Plannfog and Evaluation, 

wHl identify and reconrnend specific ·steps to be taken to ensure that Indian. 

Policy goals are effectively incorj:>or.ated and institutio~alized in the Agency"s 

procedures and operat~ons. .. 

Attachment 

I . 

. 104 
.. Volume 5, Governmental Relations and Public Affairs 

Memoranda of Understanding With States 

Handbook 5.2 Exhibits 

Exhibit 1 (continued) 

Appendix A 

Protocol Agreement for State Observation of 

NRC Inspections 

NRC Protocol: 

• The Regional State liaison Officer (RSLO) will normally be the lead individual 

responsible for tracking requests for State observation, assuring consistency regarding 

these requests, and for advising the·Regional Administrator on the disposition of these 

requests. The appropriate technicaJ r~presentative or Division Director wiU 

communicate with the State on specific issues concerning the inspection(s). 

• Requests for observations of Headquarters-based inspections will also be coordinated 

through the RSLO. Headquarters-based inspections should be referred through the 

RSLO to a technical representative designated by the Region. 

• NRC wi]) process written requests to the Regional Administrator through the State 

Liaison Officer (SLO). Requests should identify the type of inspection activity and 

facility the State wishes to observe. 

• Limits on scope and duration of the observation period may be imposed if, in the view of 

the Regional Administrator, they compromise the efficiency or effectiveness of the 

inspection. Regions should use their discretion as to which, if any, inspections will be 

excluded from observations. 

• States will be informed they must not release information concerning the time and 

purpose of unannounced inspections. · 

• The Region will make it clear to the licensee that the State views are not necessarily 

endorsed by NRC. The Region will also make it clear that on1y NRC has regulatory 

authority for inspection findings and eriforcement actions regarding radiological health 

and safety. 

State Protocol: 

• A State will make advance arrangements with the licensee for site access training and 

badging (subject to fitness for duty requirements), prior to the actual inspection. 

• Norma11y, no more than one individual 'Will be allowed to observe an NRC inspection. 

• The State will be responsible for detennining the technical and professional competence 

of its representatives who accompany NRC inspectors. 

• An observer's communication with the licensee will be through the appropriate NRC 

team member, usually the senior resident inspector or the.team leader. 

Approved: March 18. 1993 ATTACHMENT 7 
• I' 

:Volume 5, Governmental Relations and· Public Affairs 

Memoranda· of Understanding With States 

Handbook 5.2 Exhibits 

Exhibit 1 (continued) 

State Protocol: (continued) 

• 'When infonned of an unannounced inspection, a State must not release infonnation 

concerning its time and purpose. 

• An observer will remain in the company of NRC personnel throughout the course of the 

inspection. 

• State observation may be terminated by the NRC if the observer's conduct interferes 

with a fair and orderly inspection. 

• An observer will not be provided with proprietary or safeguards information. Observers 

wiJJ not remove any material from the site without NRC or licensee approval. 

• The State observer. in accompanying the NRC inspectors. does so at his or her own risk. 

NRC will not be responsible for injuries or exposures to harmful substances which may 

occur to the accompanying individual during the inspection and will assume no liability 

for any incidents associated with the accompaniment. 

• The State observer will be expected to adhere to the same conduct as NRC inspectors 

during an inspection accompaniment. 

• If the State observer notices any apparent non-conformance with safety or regulatory 

requirements during the inspection, he/she will make those observations promptly 

known to the NRC team leader or Jead inspector. likewise, when overall conclusions or 

views of the State observer are substantially different from those of the NRC inspectors, 

the State will advise the team Jeader or _lead inspector and forward those views, in writing, 

to the NRC Region. This will allow NRC to take any necessary regulatory actions. 

• Under no circumstances should State communications regarding these inspections be 

released to the public or the licensee before they are reviewed by the NRC and the 

inspection report is issued. State communications may be made publicly available, 

similar to NRC inspection reports, after they have been transmitted to and reviewed by 

NRC. 

Adjacent State Protocol: 

• An adjacent State is a State within the plume exposure pathway emergency planning 

zone (EPZ) (within approximately a 10-mile radius) of an NRC-licensed facility located 

in another State. A host State is a State in which an NRC-licensed facility is located. An 

adjacent State may request permission to observe NRC inspections at an ~C-Ucensed 

facility in a host State. . 

• The adjacel)t State SLO must communicate his/her request for observation to the 

Regional Administrator for the region in which the facility is located. 

• The adjacent State SLO must also communicate his/her request to the host State SLO so 

that each State is aware of the other's intentions. 

6 Approved: March 18. 1993 
.. 

.. Volume S, Governmental Relations and Public Affairs 

Memoranda of Understanding With States 

Handbook 5.2 Exhibits 

Exhibit 1 (continued) 

Adjacent State Protocol: (continued) 

• If a host State and an adjacent State request observation of the same inspection, the 

Regional Administrator will make the final determination on the number of State 

observers who may attend the inspection. If there is a need to limit the number of 

observers, the Regional Administrator will routineJy give preference· to the host State 

observers. 

• Adjacent State observers will abide by the same protocoJ in aU aspects of the inspection · 

as host States under this agreement. 

Signature of State Observer Date 

Approved: March 18. 1993 7 

J