Amending 40 CFR Part 35 (Subpart O)

EPA’s Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions

Purpose	EPA is amending 40 CFR Part 35, (subpart O), “Cooperative
Agreements and Superfund State Contracts for Superfund Response
Actions.”  This fact sheet discusses proposed changes to subpart O,
which would reduce the burden for Indian Tribes to receive Superfund
cooperative agreements.



What is subpart O?	Subpart O prescribes the requirements for
administering cooperative agreements to States, Indian Tribes, and
political subdivisions to conduct remedial actions, non-time critical
removal actions, pre-remedial activities and other response actions
authorized by the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), commonly referred to as Superfund.  Subpart O
became effective in July 1990.  Subpart O also prescribes requirements
for Superfund state contracts.

EPA is making minor changes to subpart O to improve the administration
and effectiveness of cooperative agreements and Superfund state
contracts under CERCLA.



Key changes that affect Indian Tribes	There are three key changes that
EPA is proposing to make it easier for Indian Tribes and intertribal
consortia to receive cooperative agreements under subpart O.



Clarifying Eligibility of Intertribal Consortia	EPA is proposing that
the revised subpart O clarify that intertribal consortia are eligible to
receive Superfund cooperative agreements.  An intertribal consortium is
defined as a partnership between two or more Federally-recognized Indian
Tribes that is authorized by the governing bodies of those Indian Tribes
to apply for and receive assistance agreements. An intertribal
consortium must have adequate documentation of the existence of the
partnership, and the authorization to apply for and receive assistance.

An intertribal consortium would be eligible to receive a cooperative
agreement from EPA only if the intertribal consortium demonstrates that
all members of the consortium meet the eligibility requirements for the
cooperative agreement, and all members authorize the consortium to apply
for and receive assistance. 

This change would implement the Federal Register notice, “Update to
EPA Policy on Certain Grants to Intertribal Consortia,” (see, 67 FR
67181 (November 4, 2002)).

Codifying a Class Deviation for  certain Superfund Cooperative
Agreements	Under the current subpart O regulation, the requirement at 40
CFR §35.6010, which references 40 CFR §300.515(b)(3) of the National
Contingency Plan, that Tribes must “have jurisdiction over a site at
which Fund-financed response, including pre-remedial activities, is
contemplated,” applies to all Superfund cooperative agreements.  EPA
is proposing that under the revised regulation at 40 CFR §35.6010, a
Tribe would not be required to demonstrate jurisdiction over a site in
order to be eligible for Core Program cooperative agreements and support
agency cooperative agreements that fund activities for which
jurisdiction over a site is not necessary.  

Core Program cooperative agreements fund non-site specific activities
aimed at developing and implementing a tribal emergency and remedial
response program; they are not awarded for any particular site over
which the Tribe might be found to exercise jurisdiction.  Similarly,
jurisdiction over a Superfund site is not necessary for a Tribe to
perform virtually all support role activities eligible for funding under
a support agency cooperative agreement.  This action would codify the
Class Deviation for Indian Tribes Memorandum from Gary Katz, Director of
EPA Grants Administration Division, dated July 7, 1999.  As a practical
matter, this action would conserve scarce EPA and tribal resources and
reduce impediments to tribal involvement in the Superfund Program.  In
order to be eligible for other types of cooperative agreements under 40
CFR Part 35, subpart O, Tribes would still need to meet all of the
requirements set forth at §300.515(b).



Eliminating Tribal Cost Share Requirements	Under the current regulation,
Indian Tribes are required to provide a 10 percent cost share for Core
Program and support agency cooperative agreements.  EPA is proposing
that under the revised regulation, the cost share requirements would be
eliminated.  With this change, Indian Tribes would not have any cost
share requirements under subpart O.



Projected date to publish rule	The projected date to publish the amended
rule is Spring 2007.



Contact	If you would like to know more about the above changes, please
contact Angelo Carasea at telephone number (703) 603-8828.  His e-mail
address is carasea.angelo@epa.gov.



Dated:  June 12, 2006

