MEMORANDUM

In a memorandumdated July 9, 1997, weestablished an Agency-wide workgroup to review EPA's process for making determinations on tribal applications for EPA-approved regulatory programs. That memorandumnoted that "it is vital that the Agency have a clear, well-documentedprocess to assemble and review relevant information, and decide on tribal program

. applications, in order to assure that the Agencymakes sound decisions that can be defended successfully." The Workgroup's charge was to review the Agency's current process for making such determinations and develop recommendations, whichmight lead to written guidance, for improving the process to ensure reliably defensible decisions. 

# - FROM:

TO: Adoption of the Recommendations from the EPAWorkgroup

# ::b:::b::r:::::::l;;YJ~el.J~~~ Assistant

# Administ!?W

# fJ5{**~he** "N;tIonal Indian Program

Jonathan

## z. Cannon '

...

# if(A",. General Counsel**A/VT~** Assistant Administ ators Regional Administr tors

The Workgroup submitted its recommendations onDecember 23, 1997. Before making its final recommendations, the Workgroup shared its preliminary recommendations with the Tribal Caucus of the Tribal Operations COIlIllIittee (the TOC), individual tribes, and EPA offices for their review and comment. TheWorkgroup's final recommendations have been shared with the EPA seniormanagers for the Indian Program for theirviews.

We too have reviewed**th~ re~ommendation9,**  and considered the comments received regarding the recommendations from within the Agency**an~** from tribes. By this memo, weaccept in full the

- recommendations made by the Workgroup. Belowweprovide: 1) a summary of the Workgroup process; and 2) a description of the recommendations and a discussion of how each**recommendat~on** will be implemented.

RecycledlRecyclabitt•f'mtedwtthVegelabte01 BasedInkson100%RecydedP8J.8r(40%PostCClO$umer)When we initiated the review that led to these recommendations, we asked that Regions generally defer making final determinations on tribal applications for regulatory authority until the reviewwas completed. Now that the review is completed, we request that the Regions resume decision-making on tribal applications in accordance with the recommendations and guidance adopted today.
The Workgroup Process
The Workgroup, whichwas chairedby Robert G. Dreher, Deputy General Counsel, includedrepresentatives from all EPARegions, and'a number ofheadquarters (HQ) offices. The Workgroup developed a list of five issues to be addressed and established issue subgroups to prepare options papers on each issue. Alist ofWorkgroup and Subgroupmembers is attached.as Attachment A. The five issues identified and addressed by the Workgroup were: 1) the.process for maintaining.and compiling administrative records for EPAdeterminations on tribal eligibility to run regulatory programs; 2) the appropriate consultation and
concurrence role for HQ in these decisions; 3) the application of the Montana test for evaluating tribal authority overnon-Indians
on fee lands within reservations; 4) opportunities for stakeholder involvement on EPAdecisions regarding tribal applications for eligibility to establishwateL quality standards under the CleanWaterAct; and 5) evaluation of treatment in the
same manner as state (TAS) criteria for grants.'
The Workgroup arrived at preliminary recommendations by the middle of October. Workgroup members solicited comments on the options andpreliminary recommendations from their respective

- offices. Then, at the beginning ofNovember, the Workgroup solicited comments on the options andpreliminary recommendations from the Tribal caucus of the TOC and from individual tribes. The Workgroup also providedperiodic updates on its progress during the TOC's monthly conference calls.
The Workgroup considered comments·tromthe TOC, indjvidual tribes, and EPAoffices. The Workgroup made several changes to the preliminary recommendations to address these comments. Finally, the Workgroup provided its recommendations to us, along with a discussion of the key considerations, comments received, and/options evaluated for each issue.

The Workgroup also identified one longer-termissue the tribal role under FIFRA

-- that the Workgroup recommends the Agency evaluate in the future.

2Adoption and Implementation of the Workgroup Recqmmendations

The primary considerations of the Workgroup were to develop recommendations that will: 1) improve the consistency and legal defensibility of EPAdecisions regarding tribal programs; 2) avoid burdensome procedural requirements that may unnecessarily delay decisions on tribal applications; and 3) recognize the importance to tribes and EPA's Indian Program of decisions involving tribal sovereignty. The principal concerns raised by the TOC, tribes, and Regions in their comments on the preliminary recommendations were that the Agency avoid adopting progedures that will place undue burdens and delays on EPA's process for making decisions on tribal applications. The Workgroup considered and made several changes to the preliminary recommendations to address these concerns. Webelieve that the recommendations adopted below achieve the Workgroup's goal of significantly improving the defensibility of EPA's decisions without placing undue burdens on the decision-making process for tribal applications. To the extent the recommendations place additional burdens on the process, we believe they are warranted in order to ensure that the Agency handles decisions pertaining to tribal sovereignty with the utmost care.
Issue 1

-- Administrative Records: Improving EPA's process for maintaining and compiling administrative records on EPA decisions regarding tribal eligibility to run regulatory programs. Workgroup Recommendation: The Assistant Administrator (AA) for Water (as the AAfor the National American Indian Program) and the Office of General Counsel (OGC) shouldjointly issue a memorandum providing guidance and establishing docketing procedures specific to the compilation and maintenance of administrative records for EPA determinations on tribal applications for eligibility to run regulatory programs under all relevant EPA statutes. The memorandum should also ask Regions to establish a training program to ensure that the guidance and procedures are followed.

. Adoption and Implementation: We adopt this recommendation in full. The final guidance is attached as Attachment B.

Issue 2

-- HQ Role: What concurrence/consultation role should HQ play in EPA decisions regarding tribal el!gibility to run regulatory programs?

Workgroup Recommendation: HQ review and concurrence should be required for all nationally-significant matters. Decisions on national significance should be guided by semi-annual review and

3consultationmeetings between HQ offices (theAmerican Indian Environmental Office (AIEO), OGC, and the national program manager (NPM) offices) and Regions to discuss national concerns/issues and to provide Regions the opportunity to discuss potential upcoming tribal actions/cases.2 In all cases, regional-HQ consultation shouldbegin as early as possible, particularly prior to a tribe's application where regional staff believe, based on early involvement with the tribe, that nationally-significant issues maybe raisedby an application. In addition, to help informdecisions on national significance, Regions.should be asked to provide a briefmemorandumto HQ assessing**~he** national significance ofeach tribal application for a regulatory programas applications come into the Region. HQ shouldbe ultimately responsible for determining national significance.
The determination regarding national significance shouldbe made within 30 days ofEPA receipt ofa tribal application. On applications with nationally-significant issues, an expectation should be established that HQ will concurorprovide specific guidance to the Region within 30 days after a Region's tentative decision has beenprovided to HQ, provided there has been early involvement for HQ. Regions should ensure that a tribe that has applied for eligibility is kept informed of the status of the decision-making process. The process described above shouldbe reevaluated after 3 years. AIEO, OGe and the relevant national programoffice are the appropriate HQ offices to be involved in the consultation and
concurrence process. Finally, Regions shouldhave periodic "Round table" discussions with their tribes. Regional Counsel attorneys Should have early consultation with tribal attorneys to identify potential legal issues pertaining to tribal eligibility for regulatory programs.

2 The Workgroup recommended that there be one meeting involving all Regions ana one Region-specific meeting eachyear. In addition, the Workgroup recommended that existing procedures**(~,** the National IndianWorkgroup) be used to improve coordination. Although the scope of the Workgroup's analysis was limited to**EP~** determinations on tribal eligibility applications for regulatory programs, the Workgroup noted that otherpending
orpossible future Agency actions affecting environmental programs in Indian country**(~,** PSD redesignations, sitespecific rulemaking under RCRA) can and shouldbe discussed in these semi-annual meetings.

4Adoption and Implementation: We adopt this recoIlUl\endation in full. Appropriate changes to the Agency's delegations manual will need to be made to implement the HQ concurrence aspects of this recoIlUl\endation. Bob Perciasepe is initiating appropriate delegations manual changes for Office ofWaterprograms. We have asked the AssistantAdministrators for the Office of Prevention, Pesticides, and Toxic Substances and the Office ofAir and Radiation to initiate appropriate changes to the delegations manual for theirprograms. We askthatArEO consult with those offices and report to us on the status of these delegations manual changes in one month. We ask that regional and HQ offices implement all other aspects of the recoIlUl\endations outlined above. '

We emphasize that the consultation and concurrence process should operate as efficiently as possible. It is essential that HQ and Regions consult early in the process, evenbefore tribal applications are submittedwheneverpossible. We will reevaluate this process, with input from Regions, NPMS, ArEOand tribes, after three years.
Issue 3

-- Application of theMont,n. test. I}ilsue 3a

- - ShouldEPAprepare guidance on applying theMontana impacts test (regarding tribal authority overnonmembers on fee

- lands within reservations)? Workgroup Recommendation: The AA for Water (as the AA for the National American Indian Program) and OGC should jointly issue general guidance to EPA regional staff, and request that AIEOwork with OGC and the Regions to develop and initiate a training program to supplement the guidance. The training should be conducted in Regions with nonmember fee lands and should allow for discussion of the application of the Montana test and the development of decision documents. Such training should be required for all persons developing decision documents that include an-analysis under the Montana test. For all other persons involved in the Indian Program, the training shouldbe encouraged. Finally, Regions shouldbe ready to work w£th tribes that request assistance in preparing applications involving Montana test issues. Adoption and Implementation: We adopt this recoIlUl\endation in full. The final guidance is attached as Attachment C. We ask that AIEO work with OGC and the Regions to develop a training program as discussed above.

5Issue 3b

- - Generalized Pindings. ShouldEPApublish a set of 

# "1 generalized findings, to supplement reservation-specific findings, regarding the nature of thepollutants and activities regulated under the environmental statutes and the importance of effective regulation under those statutes?
Recommendation: The Agency should issue.in the Federal Register an appropriate set of generalized findings for all relevant programs regarding the seriousness andmobility of pollutants and the importance ofenvironmental regulation to tribal self-governance. Adoption and Implementation: We adopt this recOllllllendation in full and ask that AIEO and the relevant NPMs in the Office of Water and the Office of Prevention, Pesticides, and Toxic Substances, in consultation with OGC and the Regions, prepare in
a timely manner appropriate generalized findings consistent with the Workgroup's recommendation.

Issue 4

-- Stakeholder Involvement; Who are the appropriate eJ1tities to comment on tribal water quality standards (WQS) eligibility applications? Should opportunity for commentbe provided on supplemental applicationmaterials or teJ1tative determinations? This issue is limited to opportunity**fo~** comment on a tribe's assertion ofjurisdiction.
Recommendation: The currentprocess for review of tribal eligibility to set WQS provides "appropriate governmental entities" (i.e., adjacent states, tribes, and federal agencies)
an opportunity to comment on tribal assertions ofjurisdiction contained in the initial application froma tribe. In addition, under the current process, notice of availability of a tribal application is provided to otherpotential commenters, specifying that any comments are to be funneled through "appropriate governmental entities." The Workgroup recommends that EPA supplement this current process by also providing: 1) supplemental application materials to "appropriate governmental entities," 2) a 30-day opportunity for these governments to comment on EPA's proposed findings of fact (under the Montana test) where a tribe seeks program approval over nonmembers on fee lands, and 3) notice of availability of such proposed findings of fact to otherpotential commenters (with comments to go through "appropriate governmental entities"). The Agency should also ensure that applicant tribes have an opportunity to review EPA's draft proposed findings of fact (under the Montana test) before they are made availableto "appropriate governmental entities."**~PA'** should also provide tribes an opportunity. to respond to any'comments submittedby "appropriate governmental entities."

In addition, EPA should ensure that tribes are given an opportunity to comment on any state application to EPA containing

6

# -



# --



# - an assertion ofjurisdiction over areas that are in or adjacent to Indian country. Adoption and Implementation:

.We adopt this recommendation in full. EPA decisions regarding tribal eligibility to setWQS should proceed consistent with the process detailed above. This expanded process may be implementedwithout changes to EPA regulations (see 40 C.F.R. § 131.8). Nonetheless, the Office of Science and Technology within the Office ofWater, in consultation withAIEO, the Regions and.OGC, should explore whether it is advisable for the Agency to incorporate this expanded process into regulation.

Issue 5

-- Eligibility requirements for grants: Ensuring consistent and adequate documentationregarding tribal eligibility for grants 

### (LL, evaluation of -treatment in the
samemanner as a state- (TAS) criteria

-- federal recognition, substantial duties, jurisdiction, andcapability).
Recommendation: EPA shouldprepare guidance for EPAstaff on the TAS considerations unique to grants. The guidance should address issues such as: the jurisdictional component of grant eligibility decisions; tribal authority issues relating to CWA § 319(h) grants; the "reservation" requirement under the CWA; use of CWA § 106 funds for off-reservation activities that relate to the protection ofwaters within reservations; the capability component of grant eligibility decisions; procedures for documenting eligibility determinations for grants; and internal Agency concurrences required for grant eligibility decisions. The Agency should ensure that appropriate grant and program offices receive copies of the guidance. Adoption and Implementation: We adopt this recommendation in full and ask that AIEOand the Office ofAdministration and Resources Management, in consultation with

## aGe and the Regions, prepare in a**t~ely** manner guidance consistent with the Workgroup's recommendation"
Conclusion

We would like to thank all the members of the Workgroup for dedicating so much of their time and energy to reviewing the Agency's process for making tribal eligibility determinations and developing the recommendations and the guidance for improving this process. Also, we would like to thank the Tribal Caucus of the TOC for taking the**t~e** to review thoroughly the draft recommendations and for providing the Workgroup with detailed comments. We believe that the recommended changes in the Agency's process, the proposed trainingprograms, and the new guidance will improve the Agency's decision-making process for tribal applications for eligibility to run regulatory programs.

7Ifyou have any questions regard1ng this memorandum, please contact Robert Dreher (202-260-8064) or have your staff contact Tony Hanson (202-260-8106) orJimHavard (202-260-1003).
Attachments

cc: Senior IndianManagers Associate General Counsels Regional Counsels Tribal EligibilityWorkgroup Members National IndianWorkgroup Members EPAIndian LawWorkgroup Members

R

# -



# -

- ATTACHMENT A

EPA'sWorkgrouponTribalEligibilityDeterminations

WorkgroupMembers

JimSappier,Region1 NinaDale,Region2 ChristineYost,Region2 SamanthaFairchild,Region3 WayneAronson,Region4 FredHunter,Region4 BobSpringer,Region5 BenHarrison,Region6 RupertThomas,Region7 KerryCough,Region8 TomSpeicher,Region8 LeighPrice,Region8 SadieHoskie,Region8 DanitaYocom,Region9 RichMcAllister,Region10 JoeRyan,Region10 PhilMetzger,OW TomWall, OW(AlBO) KathyGorospe,OW(AlBO) ElizabethBell,OW(AlBO) JimHanlon,OW(OST) KarenGourdine,OW (OST) BettyWest,OW(OWM) RosannaHoffmann,OW(OWM) RayEnyeart,OW(OGWDW) DavidLaroche,OAR MaureenRoss, OARM TomHooven,OPPTS PeteRosenberg,OECA BobDreher,OGe JimHavard,OGe LeslieDarman,OGeEPA'sWorkgroup on Tribal Eligibility Determinations

Subgroup Members

Process formaintaining and compiling administrative records for determinations on tribal applications for eligibility to run regulatoryprograms
RichMcAllister, Wayne Aronson, BenHarrison, Tom Speicher, Leigh Price, Robert Springer, JimHavard KQ role indeterDdnations on tribal applications for eligibility to run regulatoryprograms programs BettyWest, Rosanna Hoffmann, Kerry Clough, Sadie Hoskie, Elizabeth Bell, JimHavard, David LaRoche Application of "theMontana test"
Robert Springer, Leigh Price, TomSpeicher, Rich McAllister,Phil Robinson, TomHooven, BettyWest, Rosanna Hoffmann, DanitaYocom, Rupert Thomas, Phil Metzger, Elizabeth Bell, TomWall, JimHavard
Stakeholder involvement
Sadie**~oskie,** Kerry Clough, Joe Ryan, JimHavaro Evaluating tribal applications to receive grants in the same manner as a state

Ben Harrison, RichMcAllister, JimHavard, Leslie Darman, Samantha Fairchild, NinaDale, Maureen RossMEMORANDUM



# - SUBJECT:

FROM:

TO: Administrative Records for EPADeterminations on Tribal Eligibility for**R~lat~ pr~grams**  '
Robert Perciasep 

# P**LI-~iAA** Assistant

### Adminis~ra r

### ~r~h~ional Indian Program

Jonathan Z. Cannon

# t

-

,L,J .:

. General Counsel

### ~U~(' Regional Administra ors Regional Counsels
This memorandumdescribes the procedures that the regional offices are to follow in establishing andmaintaining administrative records for EPA determinations on tribal applications for eligibility to run regulatory programs.' Because of the large number of determinations on tribal applications for regulatory programs expected over the coming years, and because these determinations canbe complex and often
are controversial, 'regional offices are to follow these procedures to ensure that the technical, policy, and legal bases for EPA's decisions are articulated in supporting records that
are maintained in.an orderly fashion. In addition, we ask that regional offices establish a training mechanismto ensure that the guidance and procedures are followed.



### "'

This memorandumaddresses EPA determinations on tribal applications for eligibility to run regulatoryprograms under all rec_evant statutes; it does not address EPA determinations on tribal grant applications. Although the scope of this memorandum is limited to EPAdeterminations on tribal eligibility applications for regulatory programs, the procedures and guidance outlined below may be valuable for ensuring sound and defensible decisions regarding otherAgency actions affecting environmental programs in Indian country**(~,** PSD redesignations, sitespecific**rulemaki~gs** under RCRA).

RecycledlRlICYclable•PrilfedwtthVegetableORBasedInks on100%RecydedPaper(40"'"poSlconsumer)We believe that following the procedures outlinedbelow will foster quality decision-making by the Agency and facilitate the public's understanding ofEPA's actions. Moreover, in any litigation challenging EPA's decisions, the administrative record
serves as the basis for a reviewing court to determine whether the Agency's action complies with the Administrative Procedure Act

-- 

### .L.st.., whether the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A).
In deciding whether an**~gency** decision is "arbitrary or capricious," the courts generallywill be limited to reviewing the Agency's administrative record. Except invery rare circumstances, such review does not allow for testimony or afterthe-fact explanations of the Agency's decision. Gaps in the record, including the omission ofrelevant factual material or the failure to articulate crucial steps in the Agency's reasoning, can result in a finding that the Agency has not compliedwith the Administrative Procedure Act, causing the court to remand and/or invalidate the Agency's action.

To ensure that the administrative record for EPA's decisions is developed in an orderly fashion, eachRegion is to establish a system for creating andmaintaining an official docket for each determination on a tribal application for eligibility to run a regulatory program. Adocket is a single repository for documents that comprise the record for an EPAaction. The docket is organized chronologically andby type ofdocument**(~,** correspondence, technical documents); and is updated with new record material as it is generated. Each document is assigned an identificationnumber, and access to the docket is monitored to ensure that documents are not lost ormisplaced. The documents
are listed in an index as they are received or generated. While maintaining a formal docket involves some level of effort, we find that the resources needed to maintaina docketing system are more thanjustifiedbecause it enables·the Agency to identify for decision-makers, the public, and the courts the bases for the Agency's decisions. Moreover, the Agency would need to compile
an index to all information reliedupon by the Agency in-any event where EPA's action is the subject of litigation.
Section I, below, summarizes the general contents of an adffiinistrative record and discusses specific elements of an administrative record for tribal regulatoryprogram eligibility decisions. Section II contains procedures regarding the establishment of dockets for such decisions in the regional offices.Z

2 This memorandumdoes not address any requirements regarding the retention of documents under the Agency's records retention schedules.

2I. Overview of the Administrative Record

The Administrative Record Generally
Below is a general discussion of the elements of an administrative record.

o The record is a set of documents relied upon by the Agency for its decision. It generallywill contain all of the factual material relevant to the Agency's decision, relevant guidance usedby the Agency, any comments/correspondence from outsideparties andAgency responses, and EPA's .explanation ofhow it arrived at its decision.

o The record generally shouldnot contain internal documents reflecting the deliberations of the Agency**(~,** briefing documents, legal memoranda, drafts of documents).3 If an internal document contains both factual andprivileged information, and the factual information is not otherwise in the record, we can redact the privileged information and include the document in the record. o Any documents preparedby EPA that are to be part of the administrative record shouldbe dated and signed (if appropriate)

.

o The recordmay only include documents that are in existence at the time the Agency makes its decision. In any litigation challenging EPA's action, after-the-fact explanations orjustifications ofEPA's decisions are not permittedexcept invery rare circumstances. Therefore, all documentation needed to support the decision must be completedwhen EPA takes its action.

Elements of an Administrative Record on a Tribal Regulatory Program Eligibility Determination
Below is a list and discussion of the specific types of material that shouldbe included in the administrative record for
a determination on a tribal regulatory programapplication.

o The tribe's application and anypost-application information submittedby the tribe.

o All otherrelevant correspondence betweenEPA and the tribe.

3 These documents may, however, be subject to Agency retention schedules.

3o Any letters from EPA transmitting the tribe's application to appropriate governmental entities**(~,** adjacent states, tribes and federal agencies).

o .Any comments or competing claims ofjurisdictionreceived from appropriate governmental entities. Any other comments received on the application from outside of EPA.
o EPA's response to any comments.

o In cases where EPA consults with the Department of the Interiorregarding its decision, any non-privileged record of such consultation.
o Adecision document signedby the regional official delegated authority to make the decisionproviding a full explanation of the basis for the regional office's final determination. The Agency's decision document needs to clearly set forth the Agency's process and the data that supported the Agency's decision. The decision document needs to clearly layout the Agency's determination with regard to each of the treatment in the same manner as a state criteria spelled out inEPAregulations**(~,** federal recognition, government with substantial powers and duties, jurisdiction, and capability).

o If the determination involves a finding of tribal jurisdiction over the activities ofnon-Indians on fee lands, the decision document should include a detailed, reservation-specific discussion of existing orpotential impacts from such activities onthe health, welfare, economic security orpolitical integrity of the tribe (see EPA's Montana-test guidance, datedMarch 19, 1998).
o EPA's 1984 Indian Policy and any otherAgency policy documents orAgency guidance thatmay be relevant to the determination.

o Non-deliberative documents reflecting any required
concurrences. o Any othernon-deliberative materials relevant to the



### " Agency's determination.

II. Establishing and Maintaining a Docket
Each region is to establish a docketing system for determinations on tribal applications for eligibility to run regulatory programs. Below is guidance on the operation ofa docketing system. The guidance includes information regarding the general procedures that characterize the operation of a docket. It also contains a discussion of specific issues

4relating to dockets for EPA tribal regulatory programeligibility determinations.
General Docketing Procedures

o Each regional office should identify a location for the docket andpersonnel that are responsible for overseeing and. maintaining the docketing process. o Any relevantmaterials shouldbe forwarded to the docket fromAgency personnel as soon as they are available in final form.

o Docket personnel should entera copy of each document into the docket, indicating the date onwhich it was entered into the docket and a number identifying the document.

o An updated index to the docket shouldbe maintained at all times.
o When in use for reading or copying, documents in the docket shouldbe checked out to the individual using the documents to ensure that documents are not lost ormisplaced. Records shouldbe kept ofany outsideparty that visits the docket.

o In general, documents reliedupon by the Agencymust themselves beplaced in the docket. However, where a document is readily available to the public**(~,** through public libraries) a reference to the document**(~,** a copy of the title page and table of contents) maybe placed in the docket in lieu ofan actual copy.
Issues Specific to Tribal Eligibility DeterminationDockets

o The docket should include the tribal application and all supplementarymaterial submittedby the tribe to support the tribe's application.

o The docket should include all correspondence between EPA and outside parties regarding the tribe's application.

o As comments are receivedby the Agency, a copy shouldbe placed into the docket as soon as possible. If comments are received after the close of the comment period, they should be placed in the docket in a separate section entitled "Comments received after the close of the comment period."4

, It is the Agency's policy to respond to late comments whenever possible. Any decision not to respond to late comments**~hould** only be made after consultation with the Office of

5o The docket should include any responses to comments prepared by the Agency.

o The decision document explaining the basis for the**Agency'~** decision, along with any other non-deliberative materials relevant to the Agency's decision shouldbe placed in the docket as soon as they are final.

o Non-deliberative documents reflecting any required
concurrences shouldbe placed in the docket.

o As notedpreviously, record documents cannotbe generated or modified afterEPAtakes its action.

o Regions may want to considerestablishing a "generic" tribal eligibility determination docket that would include documents (such as EPA's 1984 Indian Policy) that the regional office will rely**~pon** in any ·tribal eligibility determination rather than including such documents in the docket for each determination.

We hope that this memorandumwill assist the Regions in making decisions on tribal eligibility for regulatory programs and in improving EPA's technical, policy, and legal bases for all such decisions.

Regional Counsel.

6

# --

--

-- ATTACHMENT C

MONTANA-TEST GUIDANCE Making Pactual Determinations under the Montana Test: Tribal Civil Regulatory Authority overNonmemberActivities on Pee Lands

NOTICE

The following guidance is intended only for EPA managers and staff in the analysis of tribal assertions of civil regulatory jurisdiction over nonmember activities on fee lands within a tribe's reservation. Specifically, the guidance is intended to assist in the collection and analysis of factual information related to the question of whether or not the activities of nonmembers on reservation fee lands may have serious and substantial effects on the "political integrity, the economic security, or the health
or welfare of the tribe." Montana v. United States, 450 U.S. 544, 566 (1981). Because of the importance of EPA's determinations in this area, it is very important that all readily-obtainable factual information be available to EPA managers in order to make properly-informed decisions.

The following guidance should be viewed as offering suggestions only. The guidance is based upon the experience of the Agency to date and offers suggestions on questions- to ask and various types of information that, if available, may be helpful to the Agency in making jurisdictional determinations. The guidance does not establish any requirements. In particular, it does-not establish any requirement that any specific information or category of information listed here is necessary in order to determine that nonmember activities either do or do not have**~he** impacts on the tribe necessary to warrant tribal regulation of those activities. The determination of the SUfficiency of information is a matter of the expert and professional judgment of the decision-maker based on the facts of the particular application, and cannot be reduced to guidance of this nature.Background

In their applications for eligibility to implement a number of EPAprograms, tribes must demonstrate that they have sufficieritjurisdiction to enforce tribal laws over the areas covered in the application, including, where appropriate, civil regulatoryjurisdiction over nonmemberactivities that may occur on any nonmember-owned fee lands located on a tribe's reservation. The Supreme Court has set forth a-legal test for determining whether a tribe has jurisdiction overnonmember activities on fee lands, called the "MontanaTest."
TheMontana Test establishes that a tribemay "exercise civil authority over the conduct ofnon-Indians on fee lands within its reservationwhen that conduct threatens orhas
some direct effect on the political integrity, the economic security, or the health orwelfare of the tribe." Montana
v. United States, 450 U.S. 544, 566 (1981).

In 1991, EPAdecided that it would apply a more rigorous formulation of the Montana Test by establishing an "operating**rule~** that requires tribes seeking eligibility to set water quality standards governing the activities ofnonmembers on fee lands to show that the effects are "serious and substantial."' At the same time, EPApublished its finding that the behaviors regulatedunder the CleanWaterAct (CWA) tend to have serious and substantial effects onhuman health and welfare (and, thus, the CWA regulates them). EPAalso announced that it would require tribes seeking eligibility to set water quality standards governing the activities ofnonmembers on fee lands to provide facts, on a case-by-case basis, demonstrating that water

_ pollution from nonmember fee_land sources has ormay have serious and substantial effects on the health orwelfare of tribal members under the particular conditions of the tribe's reservation.

1 EPAnoted in 1991 that "[t]he choice ofanAgency operating rule containing this standard i2 taken solely as a matter ofprudence-in light ofjudicial uncertainty and does not reflect an Agency endorsement of this standard**~.~** Since 1991, however, the Supreme Court has reaffirmedMontana's impacts test in 1993 (Bourland) and again in 1997 (Strate), both times quoting the Montana impacts test verbatimwithout addressing the need for**"serious~** or "substantial" impacts. While it appears that the Montana Test does not require "serious and**substantial~** impacts, for the time being, as a matter ofprudence, EPA will continue to look to see whether such impacts exist when evaluating tribal authority under the MontanaTest.

2

# - The Agency nowhas several years of experience in reviewing tribal applications for EPAprograms that involve an assertion of tribal jurisdiction overnonmember activities on fee lands. The Agency's experience shows that it 

### is important for the Agency to be consistent in its application of the Montana Test. To help
ensure national consistency in the Agency's process for making determinations under the Montana Test, the following factors shouldbe considered.

. Guidance



# -

- A. What types or categories offacts maybe relevant to a dete%3ldnation ofwhetherpollution generatedonnODJllember fee lands may have a deleterious effect on tribal health or welfare or the tribe's political integrity oreconomic security? The following questions shouldbe considered:
(1) Is pollutionbeingproducedonnonmember fee lands,
ormay itbe/is it likely to beproduced? Are there facts showing that pollution 

### is presentlybeing produced on nonmember fee lands within the reservation? Ifno pollution is presentlybeing**produced,~are** there circumstances showing that newpollution sources may be established in the future thatmay have impacts on tribal health, welfare, political**ir.t~grity,** or economic security? The threat of such impacts is a reasonable basis for a tribal government to establish controls intended to prevent harm from occurring in the first place. Thus, any information regarding present orpotential pollution sources on nonmember fee lands shouldbe considered. (2) Are tribal members orresources exposed, ormay theybe/are they likely to be exposed to thepollution? Are there facts showing, not only that pollution is occurring ormay occur, but that tribal members may be exposed to the pollution? For example, such exposure can occur ifpollution 

### is carried from nonmember lands due to the ambient nature of air and water. Tribal members maybe exposed to the pollutionwhen they are on nonmember fee lands. Pollution can also be carried through the food chain or drinking water supplies. Any facts relating to the means by which tribal members are ormight be exposed to pollution shouldbe considered. Are there facts showing that resources upon which tribal members depend**(~,** air, water, plants and animals) are ormay be exposed to pollution?

3(3) Does the exposure to 'thepollutants affect orhave the potential to affect tribal politics, economics, health orwelfare? Are there facts or studies supporting a showing that, if exposed to the pollutants generated on nonmember fee lands, tribal members may suffer deleterious effects on their "political integrity, economic security orhealth orwelfare?" Effects on "political integrity" and "economic security" may occurwhen tribal members, or species or resources onwhich tribal members depend, are exposed. For example, the tribe may depend economicallyupon the consumption or commercial sale of fish, andprotection of the fish resource depends upon effective protection of the resource habitat. Are the impacts to tribal members serious and substantial?

B. Do the factR relating to a Montana Test analysis differ from program to programorunder different environmental statutes? Yes. Again, the purpose of this guidance is simply to suggest questions to ask andpossible areas to investigate to ensure that as many of the relevant facts are before the EPAdecision-maker as are-reasonably available. The types ofpollutants may vary fromprogramto program. Similarly, the route of exposure oftenmay vary from program to program.
C. Bowdetailed should theMontana Test analysis be? Any factual data readily available to the**tribe~,** EPA and any other commenters, such as state or local governments, businesses and private citizens, might be considered. One approach would be to use the information provided in the tribal application, and informationprovidedby external commenters and by an EPAreview of the literature and relevant information in Agency files. In order to base Montana-Test decisions on as much relevant information as is reasonably available, Agency staff should do the best job that can reasonably be done in thoroughly substantiating their recommendations with available facts and studies. A "best reasonable effort" would not ordinarily require EPA Regions to carry out or contract for original research.

D. ShouldMontana-Test determinations address how regulation of nonmember water-polluting activities is necessary to effective tribal "self-governance?" This issue arises as a result of a discussion of impacts on self-government by the Supreme Court in it's 1997 decision in Strate v. A-I Contractors. The Agency determined in its 1984 EPA Indian Policy that "the principle of Indian self-government" appropriately includes such governmental functions as "setting standards, making environmental policy decisions and

...carrying out program responsibilities affecting Indian



### 4reservations, their environments, and the health andwelfare of the reservation populace." The tribal governments' views
on this issue are particularly important. It will greatly assist the Agency inmaking Montana-Test determinations if the applicant tribal government would also give its reasoning andbasis (including any supporting facts) for concluding that effective self-government includes enabling the tribe to carry out the programfor which it is applying.

E. ShouldEPA considera tribe's treatyrights or other similar rights embodied in statutes or executive orders in making its**dete~tions?** The applicant tribemay have signed a treaty with the United States in which the United States has guaranteed rights that are clearly tied to tribal pOlitics, economics, health orwelfare. While this information does not in and of itselfdemonstrate that nonmember activities may impact the tribal interests recognized in the Montana. Test, it may be relevant to the analysis ofwhether there
are impacts that are serious and substantial and a threat to effective self-government.

P. Atwhatpoint shouldRegional management and staff seek input and advice fromHeadquarters inmakingMontana Test determinations? National ProgramOffices, the Office of General Counsel and the American Indian Environmental Office
can all·provide important assistance and advice, basedupon the Agency's experience in addressing the issues encountered in evaluating tribal assertions of civil regulatory authority over nonmember activities. This body ofAgency experience is constantly growing, and informedby new federal court decisions applying theMontanaTest. In order to benefit from the most current and relevant information, Regions should coordinate closely with Headquarters' offices and seek Headquarters concurrence on applications raising nationally-significant issues. This coordination should begin as early in the process as possible, such as upon notice that a tribe is interested inpursuing regulatory authority over nonmembers on fee lands, and no later than when individual tribal applications are received in-the Regional Office.

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