  SEQ CHAPTER \h \r 1 decision Document:

		

Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation

Approval of Tribal Application for Primacy

Class II Underground Injection Control Program

Safe Drinking Water Act 

U.S. Environmental Protection Agency

August 28, 2008

TABLE OF CONTENTS

 TOC \f 

I. Introduction 	3

A. Purpose	3

B. Application	3

C. Chronology of Events	4

II. Requirements for Program Approval	6

A. Overview of Tribes’ Class II Program	7

1. Identical Tribal Requirements	9

2. More Stringent Tribal Requirements	9

B. SDWA Section 1422/40 CFR Part 145	10

1. Permitting Requirements	10

2. Compliance Evaluation
Programs…………..…………………………………12

3. Enforcement Authority	15

a. Immediate Restraining Authority	15

b. Injunctive Relief Authority	16

c. Penalty Authority	16

d. Burden of Proof 	16

e. Public Participation	16

4. Program Description	16

5. Attorney’s Statement	18

	a. Federal Recognition	19

b. Substantial Government Duties	20

c. Adequate Jurisdiction	20

d. Capability 	30

e. Conclusion	34

6. Memorandum of Agreement	34

C. SDWA Section 1425	34

1. Letter from the Governor/Tribal Chairman	35

2. Program Description	36

3. Statement of Legal Authority	37

4. Copies of Tribal Forms	38

5. Memorandum of Agreement	38

6. Public Participation	39

III. Conclusion	39

APPENDIX A - FINDINGS OF FACT

APPENDIX B - DECISION DOCUMENT: CWA SECTION 303(C)

 

I. Introduction 

 tc "

I. Introduction 

" 

	A. Purpose  tc "	A. Purpose " \l 2 

	The purpose of this Decision Document is to provide the basis and
supporting data for the United States Environmental Protection
Agency’s (EPA's) decision under Sections 1451 and 1425 of the Safe
Drinking Water Act (SDWA) to approve the application of the Assiniboine
and Sioux Tribes of the Fort Peck Reservation (Tribes) to administer the
Class II (i.e., oil and gas production-related) Underground Injection
Control (UIC) program.  The EPA’s approval applies to the
administration of the Class II UIC program for all areas within the
exterior boundaries of the Fort Peck Reservation (Reservation) located
in the State of Montana.

	B. Application  tc "	B. Application " \l 2 

	The Tribes’ application consists of the following:

July 27, 1999 cover letter from Spike Bighorn, Chairman for the Tribes,
to William Yellowtail, Regional Administrator, US EPA Region 8;

		2.	Tribal Government Resolution #1647-99-6;

		3.	July 19, 1999 letter from Reid Payton Chambers of Sonosky,
Chambers, Sachse & Endreson to Chairman Bighorn;

		4.	March 16, 1994 letter from Reid Payton Chambers to Caleb Shields,
Chairman for the Tribes;

		5.	November 4, 1992 letter from Tassie Hanna of Sonosky, Chambers,
Sachse & Endreson to Chairman Shields;

		6.	July 14, 1989 letter from Reid Payton Chambers to Raymond White
Tail Feather, Chairman for the Tribes;

		7.	April 13, 1989 letter from Reid Payton Chambers to Chairman White
Tail Feather;

		8.	Tribal Code Title VIII - Underground Injection Control - April 14,
1999;

		9.	Program Description (PD) which has been recently updated (see
below);

		10.	Information on the public hearing that the Tribes held on
September 20, 1995, including a copy of the public notice of the
hearing, copies of written notices the Tribes sent to interested
parties, copies of comments from interested members of the public, and a
transcript of the hearing.

	C. Chronology of Events  tc "	C. Chronology of Events " \l 2 

	Some events and correspondence relevant to the Tribes’ application
include the following:

	

		1.	May 8, 1989 – Initial application for Treatment in the same
manner as a State (TAS) under Section 1451 of the SDWA made by the Fort
Peck Assiniboine and Sioux Tribes to EPA Region 8.

		2.	June 20, 1989 - Letter from EPA Region 8 Water Division Director 

Max Dodson to Debi Madison, Environmental Programs Manager for the Fort
Peck Assiniboine and Sioux Tribes, requesting additional information
prior to EPA making a completeness decision on the application.

		3.	July 14, 1989 - Letter from Chairman White Tail Feather to EPA
Region 8 legal counsel Marion Yoder requesting TAS under Section 106 of
the Clean Water Act and under Section 1451 of the SDWA.

		4.	August 4, 1989 - Letter from EPA Region 8 Regional Administrator 

James Scherer to Governor of Montana Stan Stephens notifying Montana of
Region’s receipt of the Tribes’ application under Section 1451 of
the SDWA and the substance of the Tribes’ jurisdictional assertions,
and requesting comments within thirty days on these assertions.

		5.	September 28, 1989 - Letter from EPA Region 8 Regional
Administrator James Scherer to Chairman White Tail Feather approving the
Tribes’ TAS UIC application under Section 1451 of the SDWA and noting
that approval of the Tribes’ Application establishes the Tribes’
eligibility for program development grant funds.

		6.	October 5, 1989 - Letter from EPA Region 8 Assistant Regional
Administrator for Policy and Management Kerrigan Clough to Chairman
White Tail Feather notifying the Chairman that:  a) $30,400 has been
awarded to the Tribes to begin development of the UIC program on the
Reservation; b) the Tribes’ Work Plan and Program Development Plan
have been approved; c) the Tribes are eligible for four years of grant
funding for development of their UIC program; and d) with the acceptance
of this award, the EPA expects the Tribes to submit an application for
primary enforcement authority for the UIC program pursuant to the SDWA.

		7.	December 18, 1995 - Application from Fort Peck Assiniboine and
Sioux Chairman Shields to Regional Administrator Yellowtail requesting
primary enforcement authority for the UIC program under the SDWA.

		8.	May 6, 1996 - Letter from EPA Region 8 Water Program Director 
Stephen Tuber to Chairman Shields notifying the Tribes that EPA Region 8
considers the Tribes’ application complete as of April 22, 1996 and
that the Region and EPA Headquarters will conduct a review of the
application.

		9.	May 6, 1996 - Letter from EPA Region 8 Counsel Margaret Livingston
to Tribal Counsel Tassie Hanna stating that the Tribes’ UIC Code
should be adopted before the Tribal Counsel’s Statement is signed and
suggesting specific federal regulatory citations be included in this
statement.

		10.	May 21, 1997 - Letter from Chairman Shields to EPA Region 8 Acting
Regional Administrator Jack W. McGraw requesting information on the
status of the Tribes’ application.

		11.	July 25, 1997 - Letter from EPA Region 8 Acting Regional
Administrator Jack McGraw to Chairman Shields relating to EPA’s
processing of the Tribes’ application.

		12.	September 12, 1997 - EPA Region 8 publishes a notice in the
Federal Register requesting public comment on the Tribes’ application.
 (See 62 Fed. Reg. 48086.)

		13.	October 16, 1997 - EPA Region 8 holds a public hearing on the
Reservation to receive comments on the Tribes’ application.

		14.	February 12, 1998 - Letter from EPA Region 8 Assistant
Administrator for the Office of Pollution Prevention, State and Tribal
Assistance Kerrigan Clough to Chairman Bighorn notifying the Tribes that
EPA has completed its review of the Tribes’ application and including
EPA’s comments from this review.



15.	July 27, 1999 - Chairman Bighorn submits a revised primacy
application to Regional Administrator Yellowtail; revised application
includes a formally adopted UIC chapter of the Tribal Code.

 		16.	May 12, 2000 - Tribes submit Memorandum of Agreement to EPA with
signature of Arlyn Headdress, Chairman for the Tribes.



March 27, 2001 - Tribes’ legal counsel submits letter to Acting EPA
Regional Administrator Jack McGraw with additional legal analysis
concerning the Tribes’ application.	

October 17, 2002 - Letter from Chairman Headdress to Robert E. Roberts,
Regional Administrator for EPA Region 8, requesting action on Tribes’
application and attaching letter, dated June 17, 2002, from Tribes’
legal counsel to EPA Administrator Whitman relating to tribal
jurisdiction.

September 4, 2003 - Tribes’ legal counsel submits letter to Tribal
Chairman Arlyn Headdress with additional legal analysis concerning the
Tribes’ application and attaching letter, dated June 17, 2002, from
Tribes’ legal counsel to EPA Administrator Whitman relating to tribal
jurisdiction.

July 31, 2007 – Tribes and EPA update their MOA to include protocols
for criminal enforcement.

January 30, 2008 – EPA Region 8 publishes a notice in the Federal
Register proposing approval of the Tribes’ primacy application, and
requests public comment on the Tribes’ final application and
supporting documentation (including the Proposed Decision Document).

February 25, 2008 - EPA Region 8 holds a second public hearing on the
Tribes’ Reservation to receive comments on its proposal to approve the
Tribes’ primacy application.

  SEQ CHAPTER \h \r 1 II. Requirements for Program Approval    

	The Tribes have requested primacy to administer the Class II UIC
program, citing Sections 1422 and 1425 of the SDWA, 42 U.S.C. Sections
300h-1 and 300h-4. 

	Section 1422 of the SDWA sets out a process and criteria for states to
obtain primary enforcement authority for underground injection wells. 
For states seeking primacy for UIC programs under Section 1422, the EPA
has promulgated a regulation setting forth the applicable procedures and
substantive requirements.  This regulation has been codified in Part 145
of Title 40 of the Code of Federal Regulations (CFR).  

	Section 1425, added to the SDWA in 1980, provides an alternative set of
approval requirements for state programs dealing solely with Class II
wells.  Section 1425 requires that, in lieu of meeting the requirements
of Section 1422, any Class II-only program meet the requirements of
Section 1421(b)(1)(A)-(D) and represent an “effective program
(including adequate recordkeeping and reporting) to prevent underground
injection which endangers drinking water sources.”  For Section 1425
programs, EPA has published interim guidance with information on how
states may apply for program approval under Section 1425 and the
criteria EPA will use in approving or disapproving applications under
this provision.  See “Guidance for

State Submissions Under Section 1425 of the Safe Drinking Water Act,”
46 Fed. Reg. 27333-27339 (May 19, 1981).

	Under Section 1451 of the SDWA and 40 CFR Part 145, Subpart E, the EPA
is authorized to treat Indian tribes similarly to states and may approve
tribes’ applications for primary enforcement responsibility for
underground injection control programs.  Consequently, Indian tribes may
apply for primacy under either or both Sections 1422 and 1425 (see 40
CFR Section 145.58(b)), and the references in 40 CFR Part 145 and
EPA’s May 19, 1981 interim guidance to “state” programs are also
construed to include eligible “tribes.”1 

	

	In this instance the Tribes have applied for Class II UIC program
primacy under both Section 1422 and Section 1425 of the Safe Drinking
Water Act.  Because the Tribes have sought primacy for only their Class
II UIC program, the EPA considers their application to be governed by
the requirements of Section 1425.  

	Section 1421(b)(1) of the SDWA provides that the “minimum
requirements” EPA establishes by rule as a template for state UIC
programs approved under Section 1422 must ensure that such programs are
“effective” at preventing endangerment of underground sources of
drinking water (USDWs).  42 U.S.C. § 300h(b)(1).  For that reason, any
Class II program meeting the approval requirements of Section 1422 and
40 CFR Part 145 applicable to Class II wells will generally be deemed an
“effective” program for purposes of receiving primacy under Section
1425.  See also “Guidance for State Submissions Under Section 1425 of
the Safe Drinking Water Act,” p. 15 (“Any State program adopting the
[technical criteria] language of    40 CFR Part 146 should be considered
approvable on its face value for that portion of the program to which it
applies.”).  While the criteria for program approval under Section
1422 and Section 1425 are not identical, the Section 1425 requirements
“are the same as must be met by the Administrator in establishing his
[own UIC] regulations, thus ensuring that a State program pursuant to an
alternative demonstration [under section 1425] results in an equivalent
degree of protection for drinking water sources.”  House Report No.
96-1348 accompanying PL 96-502 (HR 8117), Sept. 19, 1980 at 5.

	The Tribes’ program is identical to EPA’s program in many respects
and, in all remaining respects, it is more stringent than EPA’s
program.  Inasmuch as the Tribes’ program meets and, in some areas, is
more stringent than requirements of SDWA Section 1422 and 40 CFR Part
145 that apply to Class II wells, the EPA finds that the Tribes have
also fulfilled the requirements of Section 1425, and that the Tribes’
Class II program meets the criteria in EPA’s 1981 interim guidance.
Approval of any future revisions to the Tribes’ Class II program, if
requested solely under Section 1425, may only be evaluated in light of
the requirements of that Section, without further reference to the
requirements of Section 1422.	

							

	A. Overview of Tribes’ Class II Program  tc "A. Overview of Tribes’
Class II Program " \l 3 

	The Tribes’ Class II program is substantially identical to the
program that EPA currently administers for the Reservation.  The EPA’s
current program for wells on the Reservation consists of the UIC program
requirements of 40 CFR Parts 124, 144, 146, 148, and any additional
requirements set forth in 40 CFR Part 147, Subpart BB.  (See 40 CFR
Section 147.1351(a).) 

		1. Identical Tribal Requirements  tc "		1. Identical Tribal
Requirements " \l 4 

	Most of the requirements of the Tribal program are identical to those
under the EPA-administered program that currently applies to Class II
wells on the Reservation.  The following requirements are identical:

-  the purpose and scope requirements in 40 CFR Section 144.1(g)(1)(ii)
and 144.1(g)(2)(iv and v), corresponding to Section 202(b)(1) of the
Tribal Code, 

- the confidentiality requirements in 40 CFR Section 144.5,
corresponding to Section 202(b)(2) of the Tribal Code;

- the classification of wells in 40 CFR Section 144.6, corresponding to
Section 202(b)(3) of the Tribal Code;

- the identification of USDWs and exempted aquifers at 40 CFR Section
144.7(a), (b), and (c)(2), corresponding to Section 202(b)(4) of the
Tribal Code;

- the noncompliance and program reporting requirements at 40 CFR Section
144.8, corresponding to Section 202(b)(5) of the Tribal Code;

- the prohibition of movement of fluid into USDWs at 40 CFR Section
144.12(a), (b), and (e), corresponding to Section 202(b)(6) of the
Tribal Code; 

- the waiver provisions in 40 CFR Section 144.16, corresponding to
Section 202(b)(7) of the Tribal Code;

- the permit application requirements in 40 CFR Section 144.31(a), (b),
(c)(2), (d), (e)(1-8 and 10), and (f), corresponding to Section 302(a)
of the Tribal Code; 

- the permit requirements at 40 CFR Sections 144.32, 144.33, 144.34,
144.35, 144.36, 144.37(d), 144.38, 144.51, 144.52, 144.53 (with certain
exceptions noted below for 144.53), 144.55(a), (b)(1-3), and 146.7,
corresponding to Section 302(b)(1-13) of the Tribal Code; 

- the permitting procedure requirements at 40 CFR Sections 146.9,
124.3(a), 144.39, 144.40, 144.41, 124.5, 124.6, 124.7, 124.8, 124.10
(with an exception noted below for 124.10), 124.11, 124.12, 124.13,
146.14, 124.15, 124.17, 124.18, and 124.20, corresponding to Section 402
of the Tribal Code; and

- the technical requirements in 40 CFR Sections 146.4, 146.6, 146.8,
146.10(a), (b), and (c) (with an exception for the provisions in 146.10
relating to Classes I and III), 146.22, and 146.23, corresponding to
Section 502 of the Tribal Code.

		2. More Stringent Tribal Requirements  tc "		2. More Stringent Tribal
Requirements " \l 4 

	In the following respects, the Tribal Code is more stringent than
EPA’s existing program, because the Tribal Code requires :

- permits for all wells, without provision for authorization by rule
(Section 202(c)); 

- additional monitoring of injected fluids, i.e., at least once a year
or whenever the source of injected fluids changes or the owner/operator
has determined that the quality or content of injected fluids has or may
have changed (Section 302(b)(11)); 

- recording observations of injection pressures, flow rates, and
cumulative volumes (Section 302(b)(11)); 

- daily records of the volume disposed (Section 302(b)(11)); 

- the Tribes’ Office of Environmental Protection (OEP) approval of any
permit transfer (Section 302(b)(7));

- surety bonds for new permittees before permits may be transferred
(Section 302(b)(7)); 

- permit applicants to notify owners and operators of other wells within
a 1/4 mile radius (Section 402(j)); 

- cement bond log tests before existing production wells can be
converted into injection wells (Sections 302(a) and 503(d)); 

- pressure gauges on wells (Section 503(a));

- maintaining tubing and casing annulus in a closed condition at all
times (Section 503(a));

- notification to OEP within twenty-four hours of any workover or when
any well loses integrity (Section 503(a)); and

- OEP inspection of any temporarily abandoned well at least annually,
with the owner or operator of any such wells to demonstrate that the
well will not endanger any USDW during the period of abandonment and to
obtain written approval from the OEP prior to resuming injection
(Section 503(c)).

 

	B. SDWA Section 1422/40 CFR Part 145  tc "	B. SDWA Section 1422/40 CFR
Part 145 " \l 3 

	EPA finds that the Tribal program meets the requirements of Section
1422 and 40 CFR Part 145 that apply to Class II wells.  The pertinent
requirements are set forth below.

		1. Permitting Requirements  tc "		1. Permitting Requirements " \l 4 

	According to 40 CFR Section 145.11, EPA-approved state or tribal UIC
programs must have legal authority to implement each of the following
provisions of 40 CFR, except that states and tribes may impose more
stringent requirements.  EPA finds that the Tribes have adopted
provisions in their Tribal Code that are equivalent to, or more
stringent than, each of the enumerated sections in 40 CFR Section
145.11.  The required permitting provisions and the comparable Tribal
Code provisions are as follows.  Unless otherwise noted, all cited
provisions of the Tribal Code adopt the pertinent EPA regulation by
reference.

EPA Regulation          				Tribal Code       

144.5(b) - Confidentiality of information       	202(b)(2)2         

144.6 - Classification of wells	                        202(b)(3)

144.7 - Identify USDWs and Exempted Aquifers	202(b)(4)

144.8 - Noncompliance reporting			202(b)(5)

144.11 - Unauthorized injection prohibited		202(a)3 

144.12 - No fluid movement into USDWs		202(b)(6)4

144.13 - Eliminating Class IV wells			202(a)5

144.14 - Hazardous waste				not applicable6

144.21-.26 - Rule authorization                                 	not
applicable7

144.31 - Permit application                                       
302(a)8 

         

144.32 - Signatories                                                  
302(b)(1)

144.33 - Area permits                                               
302(b)(2)

144.34 - Emergency permits                                     
302(b)(3)

144.35 - Effect of permit                                           
302(b)(4)

144.36 -Duration of permit                                       
302(b)(5)

144.38 - Permit transfer                                            
302(b)(7)9

144.39 - Permit modification                                    	402(c)

144.40 - Permit termination                                      	402(d)

144.51 - Applicable permit conditions                      	302(b)(8)

144.52 - Establishing permit conditions		302(b)(9)

144.53(a) - Schedule of compliance                          
302(b)(10)10

144.54 - Monitoring requirements                             
302(b)(11)11

144.55 - Corrective action				302(b)(12)12

  SEQ CHAPTER \h \r 1 144.88 - Motor vehicle waste disposal wells 		not
applicable13

124.3(a) - Application for a permit  			402(b)

124.5(a), (c), (d), and (f) - Permit modifications      	402(f)14

124.6(a), (c), (d), and (e) - Draft permits                 	402(g)15

124.8 - Fact sheets                                                  
402(i)

124.10(a)(1)(ii), (a)(1)(iii), (a)(1)(v), 

(b), (c), (d) and (e) - Public notice 	                        402(j)16

  SEQ CHAPTER \h \r 1 124.11 - Public comments/hearing requests		402(k)

124.12(a) - Public hearings				402(l)17

124.17(a) and (c) - Response to comments		402(q)18

  SEQ CHAPTER \h \r 1 2. Compliance Evaluation Programs

	

	In 40 CFR Section 145.12, EPA has established requirements for
compliance evaluation programs in authorized UIC programs.  EPA finds
that the Tribes have met all the requirements of Section 145.12.  This
is because the Tribes have authorized their Director to conduct all
activities described in 40 CFR Section 145.12 and have adopted all the
requirements for compliance evaluation programs set out in that
regulation.  (See Section 601 of the Tribal Code.)  In addition, the
Program Description (PD) and Memorandum of Agreement (MOA) specifically
address the following specific elements of Section 145.12:

145.12(a):  “[Tribal] programs shall have procedures for receipt,
evaluation, retention and investigation of all notices and reports
required or permittees and other regulated persons (and for
investigation for possible enforcement of failure to submit these
notices and reports).” 

	The Tribes have adequately addressed this in Part IV.D. of their PD and
in Part III of the MOA.

145.12(b): “[Tribal] programs shall have inspection and surveillance
procedures to determine, independent of information supplied by
regulated persons, compliance or noncompliance with applicable program
requirements.”  

	The Tribes have covered this requirement in Part IV.D.2.c of their PD
and in Part III.D of the MOA.  The current Tribal staff includes an
inspector, who “verifies status, location and compliance of wells in
the field” and who is to spend (insert %) of his or her time on UIC
work.  (See PD, pp. 3-4.)   EPA finds that this is sufficient,
considering that there are twenty-three Class II wells on the
Reservation.19  The Tribes also plan to conduct annual compliance
reviews for all active and temporarily abandoned wells.  (PD, p.
IV.D.2.b.)

145.12(b)(1): The tribe shall maintain “[a] program which is capable
of making comprehensive surveys of all facilities and activities subject
to the [Tribal] Director’s authority to identify persons subject to
regulation who have failed to comply with permit application or other
program requirements.  Any compilation, index, or inventory of such
facilities and activities shall be made available to the Regional
Administrator upon request.”  

	The Tribes have met this requirement.  Part I.E of the MOA provides
that any information that the Tribes obtain or use under their program
shall be made available to the EPA upon request.  Also, the PD states
that the Tribes will make all reports submitted by owner/operators open
to the public, which, of course, includes EPA.  (PD, p.18, Section
IV.D.2.b.i., second paragraph.)  There is an exception “if the OEP
grants an owner/operator’s request to have the information considered
confidential.”  (PD, p. 18, Section IV.D.2.b.i., second paragraph.) 
Requests for confidentiality are to be granted only as allowed by 40 CFR
Section 144.5, which was adopted by reference in Section 202(b)(1) of
the Tribal Code. 

145.12(b)(2): The tribe shall maintain “[a] program for periodic
inspections of the facilities and activities subject to regulation. 
These inspections shall be conducted in a manner designed to:

(i) Determine compliance or noncompliance with issued permit conditions
and other program requirements;

(ii) Verify the accuracy of information submitted by permittees and
other regulated persons in reporting forms supplying monitoring data;
and

(iii)Verify the accuracy of sampling, monitoring, and other methods used
by permittees and other regulated persons to develop that
information.”

	The Tribes’ inspection program meets these requirements.  See Part
IV.D.2.c of the PD and Part III.D of the MOA.

145.12(b)(3): The tribe shall maintain “[a] program for investigating
information obtained regarding violations of applicable program and
permit requirements.  

	The Tribes’ program meets this requirement.  See Part IV of the PD
and Part III of the MOA.

145.12(b)(4): The tribe shall maintain “[p]rocedures for receiving and
assuring consideration of information provided from the public about
violations.  Public effort in reporting violations shall be encouraged
and the [Tribal] Director shall make available information on reporting
procedures.”  

	

	The Tribes have met this requirement.  See Part IV.D.2.d.i of the PD
and Part III.E of the MOA.

145.12(c): The Tribal director and “officers engaged in compliance
evaluation shall have authority to enter any site or premises subject to
regulation or in which records relevant to program operation are kept in
order to copy any records, inspect, monitor or otherwise investigate
compliance with permit conditions and other program requirements.
[Tribes] whose law requires a search warrant before entry conform with
this requirement.

	The Tribes’ program meets this requirement.  See Part IV.D.2.c.i of
the PD, Part III.F of the MOA, Section 601 of the Tribal Code, and the: 
(1) letter of April 13, 1989, from Reid Payton Chambers to Tribal
Chairman Caleb Shields, (2) letter of July 14, 1989, from Reid Payton
Chambers to Tribal Chairman Caleb Shields, (3) letter of November 4,
1992, from Tassie Hanna to Tribal Chairman Caleb Shields, (4) letter of
March 16, 1994, from Reid Payton Chambers to Tribal Chairman Caleb
Shields, (5) letter of March 13, 1995 from Reid Payton Chambers to
Tribal Chairman Caleb Shields (including the above four letters as
attachments), (6) letter of July 19, 1999, from Reid Payton Chambers to
Tribal Chairman Spike Bighorn (which contains revisions to the March 13,
1995 letter and is intended to replace it), (7) letter of March 27, 2001
from Reid Payton Chambers to Acting Regional Administrator Jack McGraw,
and (8) letter of September 4, 2003 from Reid Payton Chambers to Tribal
Chairman Arlyn Headdress attaching a June 17, 2002 letter from Reid
Payton Chambers to Administrator Christine Todd Whitman.

145.12(d): “Investigatory inspections shall be conducted, samples
shall be taken and other information shall be gathered in a manner
[e.g., using proper ‘chain of custody’ procedures] that will produce
evidence admissible in an enforcement proceeding or in court.

	This is addressed in Part IV.D.2.c.ii. of the PD and in Part III.G of
the MOA.

  SEQ CHAPTER \h \r 1 

3. Enforcement Authority  tc "3. Enforcement Authority " \l 4 

	As set forth below, the Tribes possess all enforcement authorities
required by 40 CFR Section 145.13.  Also, as discussed in subsection 5
below, EPA finds the Tribes have an adequate enforcement program
addressing both Indians and non-Indians in civil matters.  Pursuant to
40 CFR Section 145.13(e), EPA and the Tribes specify in two UIC
Memoranda of Agreement (i.e., one that exclusively covers criminal
enforcement matters or the “Criminal Enforcement MOA,” and one that
covers all other matters or the “MOA”) the scope of EPA’s retained
primary enforcement authority for this program on the Reservation. 
Under these MOA’s, EPA maintains primary criminal enforcement
authority over non-Indians on the Reservation since the Tribes do not
have criminal enforcement authority over non-Indians.  These MOA’s
also specify that EPA maintains primary criminal enforcement authority
in any other instances where the Tribes are precluded from asserting
criminal enforcement authority (where the potential fine required is
greater than $5000 or where the penalty would require imprisonment for
more than one year, in accordance with 25 U.S.C. Section 1302).  In
these instances, the Criminal Enforcement MOA provides for a process in
which the Tribes are to refer these violations to EPA within specified
times of a determination of the need for criminal enforcement.

	

			a. Immediate Restraining Authority  tc "			a. Immediate Restraining
Authority " \l 5   

	Section 145.13(a)(1) requires that the states and tribes seeking
primacy have the authority to “restrain immediately and effectively
any person by order or by suit in State and Tribal court from engaging
in any unauthorized activity which is endangering or causing damage to
public health or the environment.”  A note included in Section
145.13(a) states, “This paragraph requires that States have a
mechanism (e.g., an administrative cease and desist order or the ability
to seek a temporary restraining order) to stop any unauthorized activity
endangering public health or the environment.”

	The Tribes meet this requirement.  Section 606(a)(2) of the Tribal Code
provides that the OEP may file suit in Tribal Court or in any other
court with jurisdiction in order to “immediately restrain any person
from engaging in any unauthorized activity which is endangering or may
endanger or causing or may cause damage to public health or
environment.”  See also Part IV.B of the MOA, which states, “The
Tribes shall have the mechanisms to restrain immediately and effectively
any person engaging in any unauthorized activity or operation which is
endangering or causing damage to public health or the environment as
applicable to the program requirements.”

			b. Injunctive Relief Authority  tc "			b. Injunctive Relief Authority
" \l 5    

	Section 145.13(a)(2) requires that states or tribes with primacy have
the authority to “sue in courts of competent jurisdiction to enjoin
any threatened or continuing violation of any program requirement,
including permit conditions, without the necessity of a prior revocation
of a permit.”

	The Tribes meet this requirement.  Section 606(a)(3) of the Tribal Code
provides that the OEP may file suit in Tribal Court or in any other
court with jurisdiction to “enjoin any person from threatened or
continuing violations of any provision of this Title or regulation
adopted hereunder, including permit conditions.”  

	Section 606(a) also provides, with reference not only to actions for
injunctive relief but also other judicial actions that “[i]t shall not
be necessary for the OEP to revoke the permit before seeking a court
order.”  

	See also Part IV.B of the MOA, which states, “The Tribes shall also
have the means to sue in courts of competent jurisdiction to prohibit
any threatened or continuing violation or any program requirement.”

			c. Penalty Authority  tc "			c. Penalty Authority " \l 5   

	The penalty authorities required by Section 145.13(a)(3) are covered by
Sections 603, 604, 605, and 606(a)(1) of the Tribal Code and Part IV.B
of the MOA.   The requirement of Section 145.13(b)(1) to be able to
assess the maximum civil or criminal penalty for each day of violation
is covered by Sections 604 and 606 of the Tribal Code.  There is nothing
in the Tribal Code to prevent the Tribes from collecting an appropriate
penalty, as required by Section 145.13(c) and, under Section IV.E of the
MOA, the Tribes have agreed to assess civil penalties in amounts
appropriate to the violations.  To the extent the Tribes are precluded
from assessing certain criminal penalties, the Tribes and EPA have,
consistent with 40 CFR Section 145.13(e), entered into the Criminal
Enforcement MOA described above whereby EPA will retain such primary
criminal enforcement authority. 

			d. Burden of Proof   tc "			d. Burden of Proof  " \l 5 

	The prohibition against imposing a burden of proof greater than under
federal law, as required by 40 CFR Section 145.13(b)(2), is addressed by
Section 606(b) of the Tribal Code.

			e. Public Participation  tc "			e. Public Participation " \l 5  

	The public participation requirements of 40 CFR Section 145.13(d) are
covered in Part IV.C of the MOA and in Section 607 of the Tribal Code.

4. Program Description  tc "4. Program Description " \l 4 

	Section 145.23 requires that state or tribal program descriptions
include the elements listed below.  As indicated below in various Parts
of the PD, EPA finds that the Tribes have met each of these
requirements.

145.23(a):  description in narrative form of the scope, structure,
coverage, and processes of the tribal program. This is provided in Part
I.A on page 1 of the PD.

145.23(b):  description of organization of the tribal agency responsible
for administering the program.  This is provided in Part I.B. of the PD.

145.23(b)(1):  description of number, occupations, and general duties of
employees.  This is provided in Part I.B. of the PD.

145.23(b)(2):  itemization of costs for two years.  This is provided in
Part I.

145.23(b)(3):  itemization of sources of funding for two years,
including restrictions.  This is provided in Part I.

145.23(c):  description of permitting and administrative or judicial
review procedures.  Permit procedures are covered in Part II.  Permit
appeals are covered in Part II.B.

145.23(d):  copies of forms.  These have been provided in Appendix C of
the PD. 

145.23(e):  complete description of compliance tracking and enforcement
program.  This is covered in Part IV.

145.23(f)(1):  schedule for issuing permits within five years.  This is
covered in Part II.E.

145.23(f)(2):  priorities for issuing permits.  This is covered in Part
II.E.

145.23(f)(3):  how to implement mechanical integrity testing
requirements.  This is covered in Part III.C.

145.23(f)(4):  notifying owner/operators of permit requirement.  This is
covered by Part IV.C, which refers to owner/operator outreach efforts. 
Part II.E indicates that each current EPA-issued permit will remain in
effect until the Tribes, over five years, notify the particular
owner/operators that new permit applications are needed.  

145.23(f)(5):  rule authorization.  Not applicable.  See Section 202(c)
of the Tribal Code.

145.23(f)(6):  rule-authorized enhanced recovery and hydrocarbon storage
wells.  Not applicable.  See Section 202(c) of the Tribal Code.

145.23(f)(7):  inventory program.  This is covered in Part IV.D.2.d.ii.

145.23(f)(8):  identification of Director designated USDWs.  This is
covered by Part II.F of the PD.

145.23(f)(9):  description of identified exempted aquifers.  This is
covered in Part II.F of the PD.

145.23(f)(10):  schedule for Class IV ban.  There is no reason for such
a schedule, because the Tribal Code has banned Class IV wells and the
Tribal Executive Board has found that no Class IV wells exist on the
Reservation.  (See Section 501 of the Tribal Code.)  

145.23(f)(11):  Class V well inventory.  Not applicable.  The Tribes
have not sought to regulate Class V wells.

  SEQ CHAPTER \h \r 1 5 tc "5 " \l 4 . Attorney’s Statement  tc ".
Attorney’s Statement " \l 4 

	Section 145.24 requires that applications for UIC primacy are to
include a statement from the attorney for the state that the laws of the
state provide adequate authority to carry out the program described
under 40 CFR Section 145.23 and to meet the requirements of 40 CFR Part
145.  This statement may be made by “independent legal counsel.” 
The law firm of Sonosky, Chambers, Sachse, Endreson, & Perry, LLP serves
as the Tribes’ independent legal counsel.  

	The Tribes’ assertion of authority within the Reservation is found in
eight letters from the law firm of Sonosky, Chambers, Sachse, Endreson &
Perry.  These letters are:  (1) letter of 

April 13, 1989, from Reid Payton Chambers to Tribal Chairman Caleb
Shields, (2) letter of 

July 14, 1989, from Reid Payton Chambers to Tribal Chairman Caleb
Shields, (3) letter of November 4, 1992, from Tassie Hanna to Tribal
Chairman Caleb Shields, (4) letter of March 16, 1994, from Reid Payton
Chambers to Tribal Chairman Caleb Shields, (5) letter of March 13, 1995
from Reid Payton Chambers to Tribal Chairman Caleb Shields (including
the above four letters as attachments), (6) letter of July 19, 1999,
from Reid Payton Chambers to Tribal Chairman Spike Bighorn (which
contains revisions to the March 13, 1995 letter and is intended to
replace it), (7) letter of March 27, 2001 from Reid Payton Chambers to
Acting Regional Administrator Jack McGraw, and (8) letter of September
4, 2003 from Reid Payton Chambers to Tribal Chairman Arlyn Headdress
attaching a June 17, 2002 letter from Reid Payton Chambers to
Administrator Christine Todd Whitman.  As described in greater detail
below, EPA finds that these letters from the Tribes’ law firm fulfill
the requirement of 40 CFR Section 145.24 for a statement that the Tribes
have “adequate authority to carry out [its] program . . . and to meet
the requirements of this part, [with] citations to the specific
statutes, administrative regulations, and, where appropriate, judicial
decisions which demonstrate adequate authority.”  Note also that the
first full paragraph on page 3 of the July 19, 1999 letter states that
“[o]n June 15, 1999, the Tribes adopted an Underground Injection
Control code which establishes adequate authority for the Tribes to
carry out the Class II UIC program described in the application for
primacy and to meet the requirements of 40 CFR Part 145.”  The letter
also includes supporting Tribal Code citations.

	Pursuant to EPA’s regulations regarding “Indian Tribes; Eligibility
for Program Authorization,” found at 59 Fed. Reg. 64339  (December 14,
1994), EPA recognized that the Agency would not approve a tribal
application to administer a regulatory program under the SDWA, including
a UIC regulatory program, without undertaking a careful analysis of the
legal basis of the tribe’s jurisdiction to carry out those activities
required to run the program.  Accordingly, EPA established that there is
no need for a separate jurisdictional review as part of a separate
treatment-in-a-similar-manner-as-a-state (TAS) eligibility process, as
long as the EPA establishes that the applicant tribe meets applicable
UIC statutory and regulatory requirements regarding adequate legal
authorities.  As EPA recognized, conducting a separate TAS
jurisdictional review would be duplicative of the review required in
connection with program authorization.  EPA’s analysis and findings
regarding the Tribes’ demonstration of authority pursuant to the
program requirements of 40 CFR Part 145, and in particular 40 CFR
Section 145.24, are thus also applicable to the Tribes’ eligibility
for TAS for purposes of the Class II UIC program under SDWA Section 1451
and 40 CFR Part 145, Subpart E.  See, infra, Section II.B.5.c.  

	EPA also finds that the Tribes have fulfilled each of the UIC TAS
requirements in Section 1451 and 40 CFR Sections 145.52 and 145.56. 
These requirements are set forth in 

40 CFR Section 145.52, which states that EPA is authorized to treat an
Indian Tribe as eligible to apply for primary enforcement responsibility
for the UIC program if it meets the following criteria: (a) the Indian
Tribe is recognized by the Secretary of the Interior; (b) the Indian
Tribe has a Tribal governing body which is currently “carrying out
substantial governmental duties and powers” over a defined area (i.e.,
is currently performing governmental functions to promote the health,
safety, and welfare of the affected population within a defined
geographic area); (c) the Indian Tribe demonstrates that the functions
to be performed in regulating the underground injection wells that the
applicant intends to regulate are within the area of the Indian Tribal
government’s jurisdiction; and (d) the Indian Tribe is reasonably
expected to be capable of administering an effective UIC program in a
manner consistent with the terms and purposes of the SDWA and all
applicable regulations.  As demonstrated in the Tribes’ current
primacy application as well as through information previously submitted
by the Tribes in connection with separate TAS applications under the
SDWA, the Clean Water Act and the Clean Air Act, and by EPA’s approval
of those applications, the Tribes have met each of these requirements as
explained below.

			a. Federal Recognition

	The Fort Peck Tribes are federally recognized by the United States
Department of the Interior.  EPA has previously found that the Tribes
meet this requirement in connection with several previous TAS
applications, including:  Clean Water Act (CWA) Section 303 TAS
application; CWA Section 106 TAS application; CWA Section 319 TAS
application; 1989 UIC TAS Grant application, and Clean Air Act Section
105 TAS application.  As EPA described during promulgation of
regulations regarding “Indian Tribes; Eligibility for Program
Authorization,” the fact that a tribe has previously met the federal
recognition requirement for the Clean Water Act, Clean Air Act or Safe
Drinking Water Act establishes that it meets that requirement for its
current application.  See 59 Fed. Reg. 64339, 64340 (December 14, 1994).
 In addition, the Tribes are listed in the most recent list of federally
recognized tribes.  The most current list of federally recognized tribes
can be found at 73 Fed. Reg. 18553 (April 4, 2008), and it includes the
Assiniboine and Sioux Tribes of the Fort Peck Reservation.  Thus, the
Tribes have satisfied the requirement at 40 CFR Section 145.52(a) that
they be federally recognized by the Secretary of the Interior.

			b. Substantial Governmental Duties

	The Fort Peck Tribes have demonstrated that they have a Tribal
governing body carrying out substantial governmental duties and powers
over a defined area.  The Tribes made this demonstration in the
following previous TAS applications and were found by EPA to have met
this requirement:  Clean Water Act (CWA) Section 303 TAS application;
CWA Section 106 TAS application; CWA Section 319 TAS application; 1989
UIC TAS Grant application, and Clean Air Act Section 105 TAS
application.  As EPA described during promulgation of regulations
regarding “Indian Tribes; Eligibility for Program Authorization,”
the fact that a tribe has previously met the governmental duties and
powers requirement for the Clean Water Act, Clean Air Act or Safe
Drinking Water Act establishes that it meets that requirement for its
current application.  See 59 Fed. Reg. 64339, 64340 (December 14, 1994).
 Thus, the Tribes have satisfied the requirement at 40 CFR Section
145.52(b) that they have a governing body carrying out substantial
governmental duties and powers over a defined area.

			c. Adequate Jurisdiction

		

	The UIC program to be administered by the Tribes pertains to the
management and protection of underground sources of drinking water20 and
the regulation of underground injection activities within the exterior
boundaries of the Fort Peck Reservation that, if not properly regulated,
could endanger drinking water sources.  The Tribes’ attorney’s
statement describes the creation of the Fort Peck Reservation by the Act
of May 1, 1888, 25 Stat. 113, ch. 212, confirming agreements between the
United States and the Tribes.  A common Tribal governing body exercises
authority over the Reservation pursuant to a Constitution and By-Laws
adopted by both Tribes and approved by the United States Department of
the Interior in 1960.  Pursuant to these governing documents, all
enrolled members of the two Tribes elect a single Chairman, Vice
Chairman, Sergeant-at-Arms and Tribal Executive Board, consisting of
twelve members, at biennial elections.  The Tribes’ Constitution
(Article II) provides that the jurisdiction of the Tribes shall extend
to territory within the original confines of the Fort Peck Reservation
as confirmed by the Act of May 1, 1888.  The Constitution (Article VII)
also provides the Tribal Executive Board with powers to make and enforce
ordinances covering the Tribes’ right to levy taxes and license fees
on persons or organizations doing business on the Reservation, to
provide for the maintenance of law and order and the administration of
justice by establishing Tribal courts and a police force, to promulgate
criminal and civil codes or ordinances, to protect and preserve the
wildlife and natural resources of the Reservation, and to regulate
hunting and fishing on the Reservation.  The Tribes have also provided a
map of the Reservation indicating the patterns of land ownership
throughout the Reservation and describing the locations of the existing
underground injection wells that the Tribes will regulate.  The Tribes
have further provided copies of the Tribal Constitution, By-Laws and
other relevant documents, including Tribal Resolutions approving the
Tribal UIC Code and authorizing submission of the primacy application to
EPA, the Tribal UIC Code and the Tribal UIC PD.  The EPA finds that,
consistent with the governing documents underlying the Tribal government
and under well-established principles of Federal Indian law, the Tribes
have inherent authority over their own members and territories to
implement and enforce a UIC program with respect to Tribal member
activities within the Fort Peck Reservation.  See, e.g., California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987), United States
v. Mazurie, 419 U.S. 544, 557 (1975).  This leaves only one category for
additional discussion, Tribal authority to regulate nonmember activities
on the Reservation.

  

	The Tribes submitted information in their initial application and
supplemental submissions to show that the Tribes meet EPA’s
formulation of the test for determining a tribe’s jurisdiction to
regulate the activities of persons other than tribal members on lands
owned in fee within the exterior boundaries of the reservation.  In the
preamble to the amendments to the EPA’s water quality standards
regulation under the Clean Water Act, the EPA set forth its analysis of
the scope of inherent tribal authority over nonmember activities on
reservation lands owned in fee by nonmembers.  See 56 Fed. Reg. 64876,
64878 (December 12, 1991).  In that discussion, the EPA considered
relevant case law, including Montana v. United States, 450 U.S. 544, 67
L.Ed.2d 493, 101 S.Ct. 1245 (1981), and adopted an “operating rule,”
described below, for determining, on a case-by-case basis, whether an
Indian tribe has civil regulatory authority over the activities of
nonmembers on reservation lands owned in fee by nonmembers. 

	The Supreme Court in Montana held that, in the absence of a federal
grant of authority, tribes generally lack inherent jurisdiction over the
activities of nonmembers on nonmember fee lands, with two exceptions. 
The first Montana exception states that a tribe may have authority over
“the activities of nonmembers who enter consensual relationships with
the tribe or its members, through commercial dealings, contracts,
leases, or other arrangements.”  Montana, 450 U.S. at 565; see also,
Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554
U.S.___, 128 S.Ct. 2709 (2008); Atkinson Trading Co. v. Shirley, 532
U.S. 645 (2001).  The second Montana exception is that “[a] tribe may
also retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.”  Montana,
450 U.S. at 565-66.  EPA’s operating rule is based on the second
Montana exception.  It requires a showing that the “potential impacts
of regulated activities on the tribe are serious and substantial.”  56
Fed. Reg. at 64878 (noting that in Brendale v. Confederated Tribes &
Bands of the Yakama Indian Nation, 492 U.S. 408, 431 (1989) (opinion of
White, J.), several justices argued that for a tribe to have a
“protectible interest” in a nonmember activity under Montana’s
second exception, the activity’s effect should be “demonstrably
serious”); see also Atkinson Trading Co., 532 U.S. at 659. 

	Recent Supreme Court opinions addressing tribal jurisdiction make clear
that the Montana test remains the applicable test for determining the
extent of tribal civil authority over nonmember activities on fee lands.
 See Plains Commerce Bank, 554 U.S.___, 128 S.Ct. 2709 (2008); Nevada v.
Hicks, 533 U.S. 353 (2001); Atkinson Trading Co., 532 U.S. 645 (2001);
Strate v. A-1 Contractors, 520 U.S. 438 (1997).  In Atkinson Trading
Co., the Supreme Court applied the Montana test to determine whether the
Navajo Nation had authority to impose a hotel occupancy tax upon
nonmembers on nonmember fee land within the Navajo Reservation.  The
Atkinson Court referred to Montana as the “most exhaustively reasoned
of our modern cases addressing” tribal jurisdiction, 532 U.S. at 650,
and further noted that the Montana test had “‘delineated – in a
main rule and exceptions – the bounds of the power tribes retain to
exercise ...civil jurisdiction over non-Indians.’” Id. at 652
(quoting Strate and Montana).  Similarly, in Nevada v. Hicks, the
Supreme Court applied the Montana test in analyzing the jurisdiction of
the tribal court of the Fallon Paiute-Shoshone Tribes over civil claims
against officials of the State of Nevada who entered tribal land within
the Reservation to execute a search warrant against a tribal member
suspected of violating Nevada law outside the Reservation.  In reaching
its holding, the Hicks Court stated clearly that “Indian tribes’
regulatory authority over nonmembers is governed by the principles set
forth in Montana v. United States, 450 U.S. 544, 67 L.Ed.2d 493, 101
S.Ct. 1245 (1981), which we have called the ‘pathmarking case’ on
the subject.” 533 U.S. at 358; see also Plains Commerce Bank v. Long
Family Land & Cattle Co., Inc., 554 U.S.___, 128 S.Ct. 2709, 2723-24
(2008)(“Montana provides that, in certain circumstances, tribes may
exercise authority over the conduct of nonmembers, even if that conduct
takes place on non-Indian land”).

It is also noteworthy that the tribal role in regulating underground
injection activities is established through explicit Congressional
authorization in SDWA section 1451.  The Supreme Court has recognized
that a federal statute, as an exercise of plenary federal power over
tribal matters, can significantly affect the scope of tribal authority
and that courts must interpret such a statute in light of the
legislative intent reflected in the statutory language.  U.S. v. Lara,
541 U.S. 193 (2004).  Like the Clean Water Act, EPA views the SDWA TAS
statutory provision as expressing a “preference for Tribal
regulation,” and a Congressional intent to promote effective
reservation management, without “checkerboarded” jurisdiction that
shifts from one sovereign to another.  See 56 Fed. Reg. at 64878-79
(discussing EPA’s approach to tribal authority).  EPA believes that
this statutory context is relevant to analyzing a tribe’s authority
under the SDWA.		

	The EPA’s approach to applying the Montana test and analyzing tribal
civil regulatory authority over nonmember activities on reservation fee
lands was upheld in Montana v. EPA, 137 F.3d 1135, 1140-41 (9th Cir.
1998), cert. denied, 525 U.S. 921 (1998) (citing “the threat inherent
in impairment of the quality” of a source of water and upholding the
EPA’s finding that the Salish and Kootenai Tribes demonstrated
adequate civil regulatory jurisdiction to establish tribal water quality
standards under the Clean Water Act on nonmember fee lands within their
Reservation).  The Ninth Circuit found that EPA’s approach was
consistent with relevant Supreme Court precedent, including the Supreme
Court’s discussion, in Strate, of the nexus between the regulated
activity and tribal self-governance.  Montana v. EPA, 137 F.3d at
1140-41.  Similarly, the Federal District Court of Montana, in Montana
v. EPA, 141 F.Supp.2d 1259 (D. Mont., 1998), upheld the EPA’s finding
that the Assiniboine and Sioux Tribes of the Fort Peck Reservation have
adequate civil regulatory jurisdiction to regulate nonmember activity
within the Fort Peck Reservation for the purposes of the Clean Water Act
water quality standards program.  In addition, the U.S. Court of Appeals
for the Seventh Circuit also upheld EPA’s approach in a case involving
EPA’s approval of TAS for the Sokaogon Chippewa Community to regulate
water quality under the Clean Water Act on the Mole Lake Reservation in
northeastern Wisconsin.  Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001).
 The court found that EPA’s regulations were consistent with Strate. 
Wisconsin v. EPA, 266 F.3d at 748.

	In the present case, EPA has applied the operating rule announced in
the preamble to the 1991 regulations under the Clean Water Act and
analyzed whether serious and substantial impacts or potential impacts
exist in evaluating the Tribes’ authority over nonmember activities
under Montana v. U.S..  As described below, EPA finds that the Tribes
have, in fact, demonstrated that the existing and potential impacts of
nonmember underground injection activities on the Fort Peck Reservation
on the Tribes’ political integrity, economic security, health and
welfare are serious and substantial thus satisfying EPA’s operating
rule with respect to the second exception of the Montana test.

i. Tribal authority to regulate nonmember activities on nonmember fee
lands within the Fort Peck Reservation

 						

	EPA finds that existing and potential future Class II underground
injection activities of nonmembers within the exterior borders of the
Fort Peck Reservation have potential direct impacts on the political
integrity, economic security, and health and welfare of the Tribes and
Tribal members that are serious and substantial.  The specific facts
upon which the EPA bases this finding are presented in the Tribes’
application, supplemental materials, and the Findings of Fact in
Appendix A to this Decision Document.  

	In brief, the Tribes’ application, supplemental materials and
Appendix A provide a  description of various activities associated with
oil production, including Class II underground injection, that have
occurred and are continuing to occur on the Fort Peck Reservation; how
these activities, if not properly managed, can endanger the underground
drinking water sources on the Reservation; and how degradation of those
sources can have serious and substantial adverse effects on Tribal
health and welfare, and economic security and political integrity.  More
specifically, the application, supplemental materials and Appendix A
describe in detail how improperly managed Class II injection wells
intersecting geologic formations with drinking water aquifers can
introduce pollutants into those aquifers, and how the drinking water
aquifers on the Fort Peck Reservation characteristically underlie both
fee and trust lands so that impacts on the waters underlying one
category of surface ownership typically affect the waters underlying all
other categories.  The Tribes’ application, supplemental materials and
Appendix A also explain the nature of these pollutants and the pathways
they can follow absent proper regulatory control of Class II underground
injection activities, how Tribal members are potentially exposed to
these pollutants, and how such exposures can cause serious and
substantial adverse effects on the political integrity, economic
security, health and welfare of the Tribes.  The application,
supplemental materials and Appendix A also describe how ground water is
the primary source of water supply, and is also the primary source of
drinking water, across the Reservation.  (See Montana v. EPA, 137 F.3d
at 1141, discussing the threat to the health and welfare of a tribe
inherent in the impairment of the quality of a reservation’s principal
water source).

	In making its finding, the EPA has relied on its special expertise and
practical experience regarding drinking water resource management and
its importance, recognizing that safe drinking water sources, and
regulating underground injection activities that, if not properly
regulated, could endanger such water sources, are necessary to the
Tribes and their self-government.  Based upon its special expertise and
practical experience, the EPA also has determined that underground
injection activities regulated under the SDWA generally have impacts on
tribal political integrity, economic security, and health and welfare
that are serious and substantial.  As discussed below in Sections
II.B.5.c.iii and II.B.5.c.iv of this Decision Document, this finding is
consistent with EPA’s position that the SDWA itself constitutes, in
effect, a legislative determination that underground injection
activities that affect drinking water sources can have impacts on
political integrity, economic security, and human health and welfare
that are serious and substantial.

	Additionally, the EPA is mindful of the mobility of pollutants entering
aquifers that are underground drinking water sources within the Fort
Peck Reservation.  Once introduced into an underground drinking water
source, pollution from improperly managed Class II underground injection
activities can migrate under trust and fee lands alike.  In other words,
as discussed above, it is highly probable that any impairment occurring
on, or resulting from nonmember activities on, fee lands will impair the
drinking water quality found underneath or on trust lands.  Similarly,
the serious and substantial effects of drinking water quality impairment
within the nonmember portions of the Reservation are very likely to
affect the quality of drinking water available to Tribal members
anywhere on the Reservation.  EPA’s findings are consistent with the
Agency’s position that a checkerboard system of regulation, whereby
tribes and states split up regulation of Class II underground injection
activities on Indian reservations ignores the difficulties of assuring
compliance with underground injection control regulations when two
different sovereign entities establish standards for closely intermixed
land areas.  See, e.g., 56 Fed. Reg. at 64878.

ii. Tribal authority to regulate nonmember activities on Reservation
lands other than nonmember-owned fee lands within the Fort Peck
Reservation

	In regard to Reservation lands other than fee lands owned by
nonmembers, EPA finds that under well-established principles of federal
Indian law, the Tribes have inherent authority to regulate Class II
underground injection activities.  EPA recognizes that under
well-established principles of federal Indian law, a tribe retains
attributes of sovereignty over both its lands and its members.  See,
e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207
(1987); U.S. v. Mazurie, 419 U.S. 544, 557 (1975).  Further, tribes
retain the “inherent authority necessary to self-government and
territorial management” and there is a significant territorial
component to tribal power.  Merrion v. Jicarilla Apache Tribe, 450 U.S.
130, 141-142.  See also White Mountain Apache Tribe v. Bracker, 448 U.S.
136, 151 (1980) (significant geographic component to tribal
sovereignty).  The Court has recently summarized these principles by
recognizing that retained inherent tribal authority extends “to
managing tribal land.”  Plains Commerce Bank, 554 U.S. at ___, 128
S.Ct. at 2723.  Additionally, a tribe also retains its well-established
traditional power to exclude nonmembers from tribal land, including
“the lesser power to place conditions on entry, on continued presence,
or on reservation conduct.”  Merrion, 455 U.S. at 144; Plains Commerce
Bank, 554 U.S. at ___, 128 S.Ct. at 2723 (“persons are allowed to
enter Indian land only ‘with the assent of the [tribal members]
themselves,’” quoting Worcester v. Georgia, 6 Pet. 515, 561 (1832)).
 Thus, a tribe can regulate the conduct of persons over whom it could
“‘assert a landowner’s right to occupy and exclude.’” 
Atkinson Trading Co., 532 U.S. at 651-652 (2001), quoting Strate, 520
U.S. at 456; see also, Plains Commerce Bank, 554 U.S. at ___, 128 S.Ct.
at 2723, quoting South Dakota v. Bourland, 508 U.S. 679, 691 n. 11
(1993)(“Regulatory authority goes hand in hand with the power to
exclude”).  Activities regulated under the underground injection
control program can, if not properly managed, endanger drinking water
sources regardless of whether they are carried out by tribal members or
nonmembers.  The harmful effects of such activities on tribes and their
members implicate a tribe’s inherent sovereign authority either to
exclude nonmembers from tribal/trust land or, as a lesser included
power, to condition entry for the purpose of conducting such activities
on consent to proper regulatory control. 

	With regard to the Fort Peck Reservation, with limited exceptions, the
Tribes may exclude nonmembers from lands to which the Tribes or their
members hold the fee or beneficial title and, therefore, may regulate
the conduct of such persons on Tribal land, either directly or by
conditioning consent to their entry on compliance with Tribal law.  The
presence of nonmembers on such lands within the Reservation is, almost
always, only by permission from the Tribes or a Tribal member through
some mechanism, such as a commercial lease or contract.  Federal statute
requires that the Secretary of the Interior approve leases for the use
of restricted lands, whether tribally- or individually-owned, for, among
other things, business or other purposes.  25 U.S.C. Section 415.  

	The Tribes submitted with their Application a sample lease for
non-member salt water disposal activities (which are activities
regulated under the underground injection control program) on trust
land, executed pursuant to 25 U.S.C. Section 415.  The lease
specifically incorporates federal regulations at 25 C.F.R. Part 162 by
reference.  Under these regulations, any person other than an Indian
landowner, or the parent or guardian of a minor Indian landowner, must
obtain a lease before taking possession of trust lands.  25 C.F.R.
Section 162.104(d).  If possession of trust lands is taken without a
lease by someone other than the Indian owner of the tract, the Bureau of
Indian Affairs considers the unauthorized use a trespass.  25 C.F.R.
Section 162.106(a).  The regulations further state that tribal laws
generally apply to land under the jurisdiction of the tribe enacting the
laws.  25 C.F.R.Section 162.109.  Incorporation of these provisions into
the lease supports the consensual nature of the nonmember activity on
trust land.  

	Additionally, other federal requirements applying to activities such as
mineral development (which may, in certain circumstances, be associated
with waste disposal activities regulated under the underground injection
program) also call for lease arrangements with nonmembers conducting
such activities on trust land.  For instance, Indian mineral owners may
lease their lands for mining purposes but must get approval from the
Secretary of the Interior in order to do so.  25 U.S.C. Section 2101 et
seq. (Indian Minerals Development Act of 1982; allowing tribes, with
approval of the Secretary of the Interior, to enter into agreements for
the extraction, processing, or development of energy or non-energy
mineral resources); 25 U.S.C. Section 396a (Indian Mineral Leasing Act
of 1938; allowing leasing of Indian lands for mining purposes, with the
approval of the Secretary of the Interior).  Currently, all existing
non-member Class II injection well facilities on Fort Peck trust lands
operate pursuant to a consensual lease relationship with the Tribes. 
(See example lease and partial list of facilities contained in Docket
No. EPA-R08-OW-2007-0153.)  

	In addition, the Tribes have provided information showing that Class II
underground injection activities taking place (or that may take place)
on nonmember fee lands within the Reservation can adversely affect
Tribal drinking water sources, ceremonial and cultural uses and the
political integrity, economic security, health or welfare of the Tribes
and their members.  When those activities take place on lands held by
the Tribe or its members, they are, in general, even more likely to
directly impact the political integrity, economic security, health or
welfare of the Tribes and their members.  

	There are currently five Class II injection wells located on Tribal
trust lands on the Fort Peck Reservation.  All of these wells intersect
geologic formations which are considered underground sources of drinking
water (USDW) and, if improperly managed, could result in the
introduction of pollutants into such USDWs resulting in potential
serious and substantial adverse effects on Tribal health, welfare,
political integrity, and economic security.  The "Courchene 2-D" well
intersects a tertiary sand within 200 feet of land surface that is
considered a USDW.  Although slightly older geologically, this sand is
similar to the quarternary deposits (referred to on Page A-6 of Appendix
A) in that it was deposited as an alluvial or glacial aquifer.  The "EPU
80-D" and "EPU 5-D" wells also intersect tertiary sands within 150 feet
of, and between 86 to 250 feet below, land surface, respectively. 
Similarly, these sands are alluvial or glacial in nature and are
considered USDWs in the areas where these two wells are located.  The
"Red Eagle 2-25" well intersects the Fox Hills Formation located between
260 to 390 feet below land surface and the Judith River Formation
located between 1405 to 1620 feet below land surface.  Both of these
formations are considered USDWs.  The fifth well is the "Tribal Bear #1"
which intersects the shallow Fox Hills Formation outcropping at or near
land surface in the area where this well is located.  This formation is
also considered an USDW, and a water sample taken from this aquifer
shows a total dissolved solids concentration of 1,575 milligrams per
liter - fresh enough to be consumed without treatment.

	Furthermore, EPA has made generalized findings (described below) about
the effects of underground injection activities that, if not properly
regulated, can endanger drinking water sources that logically apply with
equal or greater force when those activities are carried out on lands
owned by a tribe or its members.  EPA has found that underground
injection activities generally have impacts on politics, economics and
human health and welfare that are serious and substantial.  In addition,
the mobile nature of pollutants in subsurface waters means that
impairment of drinking water sources, whether on nonmember fee land or
lands held by a tribe or its members within a reservation, will likely
impair drinking water sources elsewhere on a reservation.  In the case
of trust lands and other lands owned by a tribe or its members, any
nonmember activities on those lands that can impair drinking water
sources will likely have an even more direct impact on the resources and
the health and welfare of the tribe.  EPA thus has determined the Tribes
could demonstrate authority over such nonmember injection activities
under the second exception of the Montana test.

iii. General Finding on Human Health and Welfare, Economic and Political
Impacts 

	

In enacting part C of the SDWA, Congress generally recognized that if
left unregulated or improperly managed, underground injection can
endanger drinking water sources and thus has the potential to cause
serious and substantial, harmful impacts on human health and welfare,
and economic and political interests.  As stated in the legislative
history of the SDWA:

[U]nderground injection of contaminants is clearly an increasing
problem.  Municipalities are increasingly engaging in underground
injection of sewage, sludge, and other wastes.  Industries are injecting
chemicals, byproducts, and wastes.  Energy production companies are
using injection techniques to increase production and to dispose of
unwanted brines brought to the surface during production.  Even
government agencies, including the military, are getting rid of
difficult to manage waste problems by underground disposal methods. 
Part C is intended to deal with all of the foregoing situations insofar
as they may endanger underground sources of drinking water (USDWs). 

In response to the problem of the substantial risks inherent in
underground injection activities, Congress enacted section 1421 of the
SDWA “to assure that drinking water sources, actual and potential, are
not rendered unfit for such use by underground injection of
contaminants.” 

 

	In enacting the SDWA, Congress also generally found that waste disposal
practices, including mismanaged underground injection activities, could
have serious and substantial, harmful impacts on human health and
welfare, and economic and political interests.  For example, Congress
found that:

Federal air and water pollution control legislation have increased the
pressure to dispose of waste materials on or below land, frequently in
ways, such as subsurface injection, which endanger drinking water
quality.  Moreover, the national economy may be expected to be harmed by
unhealthy drinking water and the illnesses which may result therefrom.

 	

	Congress specifically noted several economic and political consequences
that can result from the degradation of good quality drinking water
sources, including:  (1) inhibition of interstate tourism and travel;
(2) loss of economic productivity because of absence from employment due
to illness; (3) limited ability of a town or region to attract workers;
and (4) impaired economic growth of a town or region, and, ultimately,
the nation.

	As the Agency charged by Congress with implementing part C of the SDWA
and assuring implementation of effective UIC programs throughout the
United States, EPA agrees with these Congressional findings.  EPA finds
that underground injection activities, if not effectively regulated, can
have serious and substantial, harmful impacts on human health and
welfare, and economic and political interests.  In making this finding,
EPA recognizes that:  (1) the underground injection activities,
currently regulated as five distinct classes of injection wells as
defined in the UIC regulations, typically emplace a variety of
potentially harmful organic and inorganic contaminants (e.g., brines and
hazardous wastes) into the ground; (2) these injected contaminants have
the potential to enter USDWs through a variety of migratory pathways if
injection wells are not properly managed; and (3) once present in USDWs,
these injected contaminants can have harmful impacts on human health and
welfare, and economic and political interests, that are both serious and
substantial.

	In 1980, EPA issued a document entitled, “Underground Injection
Control Regulations: Statement of Basis and Purpose,” which provides
the rationale for the Agency in proposing specific regulatory controls
for a variety of underground injection activities.  These controls, or
technical requirements (e.g., testing to ensure the mechanical integrity
of an injection well), were promulgated to prevent release of pollutants
through the six primary “pathways of contamination,” or
well-established and recognized “ways in which fluids can escape the
well or injection horizon and enter USDWs.”   EPA has found that USDW
contamination from one or more of these pathways can occur from
underground injection activity of all classes (I - V) of injection
wells.

	The six pathways are:

	

	migration of fluids through a leak in the casing of an injection well
and directly into a USDW;

	vertical migration of fluids through improperly abandoned and
improperly completed wells in the vicinity of injection well operations;

	direct injection of fluids into or above a USDW;

	upward migration of fluids through the annulus, which is the space
located between the injection well’s casing and the well bore.  This
can occur if there is sufficient injection pressure to push such fluid
into an overlying USDW;

	migration of fluids from an injection zone through the confining strata
over or underlying a USDW.  This can occur if there is sufficient
injection pressure to push fluid through a stratum, which is either
fractured or permeable, and into the adjacent USDW; and

	lateral migration of fluids from within an injection zone into a
portion of that stratum considered to be a USDW.  In this scenario,
there may be no impermeable layer or other barrier to prevent migration
of such fluids.

	Moreover, consistent with EPA’s findings, the U.S. Department of the
Interior has recognized the ability of injection wells to contaminate
surface waters that are hydrogeologically connected to contaminated
ground water.  Such contamination of surface waters could further cause
negative impacts on human health and welfare, and economic and political
interests.

	In sum, EPA finds that, given the common presence of contaminants in
injected fluids, serious and substantial contamination of ground water
and surface water resources can result from improperly regulated
underground injection activities.  Moreover, such contamination has the
potential to cause correspondingly serious and substantial harm to human
health and welfare, and economic and political interests.  EPA also has
determined that Congress reached a similar finding when it enacted part
C of the SDWA, directing EPA to establish UIC programs to mitigate and
prevent such harm through the proper regulation of underground injection
activities.

iv. General Finding on the Protection of Safe Drinking Water Sources as
Necessary to Protect Self-Government

  

	Consistent with the finding that improperly managed underground
injection activities can have direct harmful effects on human health and
welfare, and economic and political interests that are serious and
substantial, EPA has determined that proper management of such
activities serves the purpose of protecting these human health and
welfare, and economic and political interests.  Protection of these
interests is a core governmental function, the exercise of which is
integral to, and is a necessary aspect of, self-government.  See 56 FR
64876, 64879 (December 12, 1991); Montana v. EPA, 137 F.3d 1135, 1140-41
(9th Cir. 1998).  EPA has determined that Congress reached this
conclusion in enacting the SDWA, and that Congress considered the water
quality protection functions authorized by the SDWA to be a necessary
act of self government, serving to protect essential and vital public
interests by ensuring that the public’s essential drinking water
sources are safe from contamination, including contamination caused by
underground injection activities.

	The above findings regarding the effects on human health and welfare,
and economic and political interests are generally true for human beings
and their communities, wherever they may be located.  EPA has determined
that the above findings are generally true for any Federal, State and/or
Tribal government having responsibility for protecting human health and
welfare.  With specific relevance to Tribes, EPA has long noted the
relationship between proper environmental management within Indian
country and Tribal self-government and self-sufficiency.  Moreover, in
the 1984 EPA Policy for the Administration of Environmental Programs on
Indian Reservations, EPA determined that as part of the “principle of
Indian self-government,” Tribal governments are the “appropriate
non-Federal parties for making decisions and carrying out program
responsibilities affecting Indian reservations, their environments, and
the health and welfare of the reservation populace,” consistent with
Agency standards and regulations.  (EPA Policy for the Administration of
Environmental Programs on Indian Reservations, Paragraph 2, November 8,
1984).  EPA interprets section 1451 of the SDWA, in providing for the
approval of Tribal programs under the Act, as authorizing eligible
Tribes to assume a primary role in protecting drinking water sources. 
These general findings provide a backdrop for EPA’s legal analysis of
the Fort Peck Tribes’ Application and, in effect, supplement EPA’s
factual findings specific to the Fort Peck Tribes and to the Fort Peck
Reservation, contained in the Decision Document and Appendix A thereto,
and the Fort Peck Tribes’ similar conclusions, contained in their
Application, pertaining specifically to the Fort Peck Tribes and the
Fort Peck Reservation.

				v. Conclusion on Adequacy of Authority

	The Tribes have thus made a showing of facts that there are underground
sources of drinking water (USDWs) within the Reservation used by the
Tribes or their members (and thus that the Tribes or their members could
be subject to exposure to pollutants present in, or introduced into,
those waters) and that the waters of the Reservation are subject to
protection under the SDWA from underground injection activities that, if
not properly regulated, can endanger drinking water sources.  The Tribes
have also shown that impairment of such waters by improperly managed
Class II underground injection activities of nonmembers would have 
effects on the health and welfare, political integrity and economic
security of the Tribes that are serious and substantial.  

	Based upon the facts available to the EPA from the Tribes and other
sources, as presented in Appendix A, and in light of the general
findings discussed above, the EPA has determined that the Tribes have
demonstrated that the protection of USDWs sought to be achieved by
regulating Class II underground injection activities of nonmembers
within the exterior boundaries of the Fort Peck Reservation is necessary
to protect against existing and future potential direct impacts on
Tribal health and welfare, political integrity and economic security
that are serious and substantial.

	Thus, for the reasons explained in section II.B.5.c the EPA has
determined that the Tribes have successfully demonstrated adequate
authority to administer a Class II underground injection control program
on all lands within the exterior boundaries of the Fort Peck
Reservation.  The EPA therefore, concludes that the Tribes have met the
requirements of 40 CFR Section 145.52(c).

			d. Capability

	Given the Tribes’ demonstrated capacity to administer other
environmental programs, EPA is confident that the Tribes will be
successful in establishing and implementing an underground injection
control program for Class II wells that will comport with the
requirements of the SDWA, for the following reasons:

				i. The Tribes’ Previous Management Experience  tc "				i. The
Tribes’ Previous Management Experience " \l 4   

	The EPA has recognized that one of the ways a tribe may demonstrate
managerial capability is by administering programs and services under
contracts authorized by the Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638).  As set forth on pages 2-5 of the 1989
UIC Treatment as a State Grant application, the Tribes have demonstrated
management experience in entering into contracts with the Bureau of
Indian Affairs (BIA) pertaining to land and mineral activities, under
Pub. L. 93-638.  Under these contracts, the Tribes have compiled records
of lands that have been purchased by the Tribes since the original
homestead acts in 1908, administered a program for ensuring that
permittees and lessees complied with exploration permits (issued by the
BIA Fort Peck Agency) and/or oil and gas leases, assumed the BIA’s
responsibility to ensure oil and gas lease compliance in all field
operations, conducted drill site inspections, and established a
preliminary gravel deposit classification and identification system. 
The Tribes also have a BLM-licensed oil and gas inspector on staff.

				ii. Environmental Programs Administered by the Tribes  tc "ii.
Environmental Programs Administered by the Tribes " \l 4 

	

	As stated on pages 5-8 of the Fort Peck Tribes’ 1989 UIC TAS Grant
application, the Tribes administer environmental and public health
programs.  They have a Tribal Health Department covering environmental
health, community health education, and community health dietetics.  The
Tribes also maintain an Office of Environmental Protection (OEP) for
protecting air and water quality.  Since the 1989 TAS Grant application,
the Tribes have expanded their environmental programs, as indicated
below.

					1. Water Quality Standards - CWA Sec. 303  tc "					1. Water
Quality Standards - CWA Sec. 303 " \l 5 

	Since submitting their 1989 TAS UIC Grant application, the Tribes have
further developed their capacity to protect water quality.  As discussed
in more detail below, they now have EPA-approved water quality standards
in place pursuant to Section 303 of the CWA, 33 U.S.C. Section 1313.  

	Under Section 518(e) of the CWA, 33 U.S.C. Section 1377(e), the Tribes
submitted a TAS application to EPA for their water quality standards
program on March 24, 1994.  As part of EPA’s review and approval
process, EPA analyzed and found the Tribes to be capable of
administering the WQS program.

	After the Tribes received EPA’s approval to administer a water
quality standards program, the Tribal Executive Board adopted water
quality standards on December 22, 1997, under Resolution No. 110-97-12. 
The Tribes submitted these standards to EPA for approval with a letter
dated February 3, 1998.  EPA approved those standards on April 25, 2000.
 EPA approved a revision of the Tribes’ standards on September 4, 2002
and October 30, 2006.

					2. Water Quality Certifications - CWA Sec. 401  tc "					2. Water
Quality Certifications - CWA Sec. 401 " \l 5 

	In conjunction with EPA’s grant of TAS to the Tribes for purposes of
the water quality standards program, the Tribes administer a program for
issuing water quality certifications under Section 401 of the Clean
Water Act.  Under Section 401, before a federal agency issues a license
or permit for a project resulting in any discharge to navigable waters,
it must obtain a certification from the state in which the discharge
originates.  The Section 401 certification addresses whether the
discharge will comply with certain Clean Water Act provisions.  States
may waive or condition their Section 401 certifications.  Tribes that
have been authorized by EPA to administer water quality standards
programs may issue certifications for discharges in the same manner as
states.  In this capacity, the Fort Peck Tribes have issued Section 401
certifications to the United States Army Corps of Engineers (Corps) for
various projects requiring permits from the Corps under Section 404 of
the Clean Water Act.

					3. Water Quality Management Program - CWA Sec. 106

	On August 31, 1989, the EPA approved the Tribes’ TAS application for
purposes of Section 106 of the Clean Water Act.  The Tribes have also
received Section 106 grant money from EPA, which they have used for
administering water quality protection programs.

					4. Non-point Source Protection - CWA Sec. 319  tc "4. Non-point
Source Protection - CWA Sec. 319 " \l 5 

	On June 10, 1994, the EPA approved the Tribes’ application for TAS
for purposes of Section 319 of the Clean Water Act.  The Tribes have
completed a nonpoint source assessment report and management plan, and
EPA has found this plan to be a technically sound evaluation of current
nonpoint source problems.  

				5. Clean Air Act  tc "5. Clean Air Act " \l 5   

	On May 6, 1999, the EPA informed the Tribes that they had met the
requirements of Sections 301(d)(2) and 302(r) of the Clean Air Act and
that they had become eligible to compete for funding available under
Section 105 of the Clean Air Act.  This decision was based in part upon
a finding that the Tribes had demonstrated that they were capable of
conducting work under a Clean Air Act Section 105 grant. 

					6. Groundwater Protection  tc "6. Groundwater Protection " \l 5 

	In addition, as outlined in the April 13, 1989 letter from the law firm
of Sonosky, Chambers & Sachse to Chairman White Tail Feather, the Tribes
have also gained important experience in regulating underground
injection of salt water during proceedings involving the Judith River
Formation.  The Tribes participated in public hearings involving a
proposed EPA permit allowing injection into the Judith River Formation. 
As a result, EPA agreed to limit future injection into this formation. 
The Tribes’ participation demonstrated their expertise and capability
to participate in decisions relating to underground injection. 

	The Tribes have also collected numerous groundwater samples from the
Judith River Formation, and shallow aquifers in East Poplar Oil Field,
in conjunction with the United States Geological Survey (USGS).  This
sampling program began as a response to a USGS study that found brine
and chloride contamination.  The Tribes have provided EPA with the
results of this sampling.

	In June 2007, EPA authorized the Tribes to assist EPA in directly
implementing the UIC Class II program through establishment of a Direct
Implementation Tribal Cooperative Agreement.  As a result, the Tribes
are authorized to use federal EPA inspector credentials to enforce UIC
Class II regulations.					

						

					7. Pesticide Enforcement - FIFRA Sec. 23(a)

	The Tribes obtained an EPA Inspector Credential in October, 2006 and
are conducting inspections of regulated facilities for compliance with
FIFRA regulations.

				

iii. Mechanisms to Carry out Tribal Government’s Executive,
Legislative, and Judicial Functions  tc "iii. Mechanisms to Carry out
Tribal Government’s Executive, Legislative, and Judicial Functions "
\l 4 

	The Tribes have a fifteen-member Executive Board, which has established
various business committees to perform administrative functions, various
ordinances that have been enacted by the Tribes and compiled in a
comprehensive Code of Justice, and a court system.  (See pages 10-12 of
the 1989 TAS UIC application and Part I.B of the PD in the 1999 Primacy
Application.)  The Tribal government structures are described further in
Part I of the PD included with the Primacy Application.

				iv. Tribal Regulatory Agency  tc "iv. Tribal Regulatory Agency " \l
4 

	As stated on page 12 and 13 of the 1989 TAS UIC Grant application, the
Tribal UIC program will be administered by the Tribal OEP.  The OEP is
independent from Tribes’ Minerals and Tax Administration Office, which
owns and/or operates Tribal wells.

				v. Staff Technical and Administrative Capabilities  tc "v. Staff
Technical and Administrative Capabilities " \l 4 

	Pages 13-14 of the TAS application, as well as Part I of the PD in the
Primacy Application, provide information on the Tribes’ technical and
administrative staff capabilities. 

The EPA finds that the background and experience of the OEP staff are
sufficient to administer and manage the UIC Class II program.

	

				vi. Conclusion Regarding Capability

	The Tribes have demonstrated, and EPA finds, that they are reasonably
expected to be capable of administering an effective Class II UIC
program in a manner consistent with the terms and purposes of the SDWA
and all applicable regulations.  Thus, EPA concludes that the Tribes
have satisfied the requirements of 40 CFR Section 145.52(d).

			e. Conclusion

	The Tribes have thus satisfied the requirement at 40 CFR Section 145.24
that they include an attorney’s statement demonstrating that the
Tribes’ laws provide adequate authority to carry out the program
described under 40 CFR Section 145.23 and to meet the requirements of 40
CFR Part 145.  Similarly, consistent with EPA’s regulations regarding
“Indian Tribes; Eligibility for Program Authorization,” EPA also
finds that the Tribes have fulfilled each of the UIC TAS requirements in
42 U.S.C. Section 300j-11(b), 40 CFR Sections 145.52 and 145.56. 

6. Memorandum of Agreement  tc "6. Memorandum of Agreement " \l 4 

	Section 145.25 requires that applications for UIC primacy are to
include a Memorandum of Agreement to be executed by the Tribal Director
and the EPA Regional Administrator, and become effective when approved
by the EPA Administrator.

145.25(a): signatory requirements; prohibition against limiting EPA’s
statutory oversight responsibility.  Signature included; no such
limitation found.

145.25(b)(1):  transferring permit applications and permits from EPA to
Tribes.  Covered in Part II.B.

145.25(b)(2):  sending permit applications, draft permits, and proposed
permits to EPA for review.   Covered in Part V.E.

145.25(b)(3):  submission of reports to EPA.  Covered in Part V.

145.25(b)(4)(i):  coordinating compliance monitoring.  Some of this is
to be covered in an annual Tribal/EPA agreement.  See Part I.D.  Some is
also covered in the provision on sharing information.  See Part I.E.

145.25(b)(4)(ii):  coordinating enforcement.  Covered in Part IV.D.

							

145.25(b)(5):  joint processing permits.  Not applicable.

145.25(b)(6):  modifying MOA.  Covered in Part I.B.

145.25(c):  consistency between MOA and other agreements, such as grant
agreements and annual program agreements.  Covered in Part I.B.

	C. SDWA Section 1425

  tc "	C. SDWA Section 1425 " \l 3 

	Section 1425 of the SDWA allows EPA to approve a state or tribal
program regulating Class II UIC wells upon a showing that the program
(1) meets the requirements of SDWA Sections 1421(b)(1)(A)-(D) and (2)
represents an effective program to prevent underground injection that
endangers drinking water sources.

	Section 1421(b)(1)(A) of the SDWA requires that any state program,
whether approved under Section 1422 or Section 1425 of the SDWA must
prohibit any underground injection in such state that is not authorized
by permit or rule.  The Tribes have met this requirement by prohibiting
all injection into Class II wells except as authorized by permit.  (See
Sections 202(a) and 302(a) of the Tribal Code.)

	Section 1421(b)(1)(B) of the SDWA requires that an approvable state
program must require permit applicants to satisfy the State that
underground injection will not endanger drinking water sources.  The
Tribes have met this requirement by prohibiting any underground
injection that may endanger underground sources of drinking water
(Section 101(d) of the Tribal Code) and by authorizing the Tribal Office
of Environmental Protection to issue permits under any conditions it may
determine necessary or appropriate to protect underground sources of
drinking water (Section 102(d) of the Tribal Code), and by adopting
permitting requirements that are at least as stringent as federal
requirements (see below).  In addition, the Tribal Code authorizes the
Tribes to require corrective action if any information indicates
movement or the potential for movement of injection or formation fluids
into underground sources of drinking water.  (See Section 301 of the
Tribal Code.)  

	Because the Tribes have not authorized injection by rule, they are not
subject to the prohibition of Section 1421(b)(1)(B) of the SDWA against
promulgating any rule authorizing any underground injection that
endangers drinking water sources.  (See Section 202(c) of the Tribal
Code, providing that there shall be no authorization to inject by rule.)

	Section 1421(b)(1)(C) of the SDWA requires that an approvable state
program must include inspection, monitoring, recordkeeping, and
reporting requirements.  The Tribal Code includes these requirements in
Parts 101(f), 302(b)(8), 302(b)(11), 503(c), and 601.

	

	Section 1421(b)(1)(D) of the SDWA requires that an approvable state
program must apply to underground injections by Federal agencies and by
any other persons, whether or not occurring on property owned or leased
by the United States.  The Tribes have met these requirements.  (See
Sections 104(m) and 105 of the Tribal Code.)

	EPA finds that the Tribes’ program is effective to prevent
underground injection that endangers drinking water sources and that the
Tribes’ program contains adequate recordkeeping and reporting
requirements.  As demonstrated above, the Tribes’ program is effective
by meeting, and in some cases exceeding, all requirements relevant to
Class II wells that state or tribal programs must include to obtain
primacy under Section 1422 of the SDWA.  It is also more stringent than
EPA’s own program in a number of respects, as outlined above.

		1. Letter from the Governor/Tribal Chairman  tc "		1. Letter from the
Governor/Tribal Chairman " \l 4   

	The Tribes’ application includes a July 27, 1999 letter from the
Chairman of the Tribes that requests primacy, specifies that the Tribes
request approval under Sections 1422 and 1425 of the SDWA, and, together
with the application, indicates that the Tribes are willing and able to
carry out the program.  EPA has determined that the Tribes are still
willing and able to carry out the program.

		2. Program Description  tc "		2. Program Description " \l 4   

	EPA finds that the Tribes’ PD contains a full description of the
program for which approval is sought, in sufficient detail to enable EPA
to judge its adequacy, as indicated below by various Parts of the PD. 
References such as “3.3.a” match the Sections in the 1981 Guidance. 


3.3.a - Specification of structure, coverage, and scope of the Tribal
program  - Part I.

	3.3.b - Specification of the permitting process, including the
following elements:

3.3.b.1 - Who applies for permits  -  Part II.A.

3.3.b.2 - Signatories required for permit applications & reports  - Part
I.A.

3.3.b.3 - Conditions applicable to permits - Part II, which refers to
the requirement that all permits contain, at a minimum, the conditions
required by Chapter 3 of the Tribal Code, which in turn includes
requirements, adopted by reference in Section 302(b)(8) of the Code, as
to the duty to comply with permit conditions, the duty to reapply for a
permit, the duty to halt or reduce activity, the duty to mitigate,
proper operation and maintenance, permit actions, property rights,
inspection and entry monitoring, record keeping, and reporting
requirements.  

3.3.b.4 - Compliance schedules -  No need to address specifically; 
Section 302(b)(10) of the Code indicates that EPA’s regulation at 40
CFR Section 144.53 is adopted by reference, and Part II  states that
“[a]ll permits will contain, at a minimum, the permit conditions
required by Chapter 3 of the [Code].”

3.3.b.5 - Transfers of permits - Part II.C.

3.3.b.6 - Termination of permits - Part II.H.

3.3.b.7 - Whether area permits or project permits are granted - Part II,
second paragraph. 

3.3.b.8 - Emergency permits - Part II.D.

3.3.b.9 - Availability and use of variances and other discretionary
exemptions to programmatic requirements - Part II.F.

3.3.b.10 - Administrative and judicial procedures for modification of
permits - Part II.H.

3.3.c - Description of the “operation of any rules used by the State
to regulate Class II wells” -  Part III.

3.3.d - Description of the technical requirements that the Tribal
program applies to operators - Part III.

3.3.e - Description of procedures for monitoring, inspection, and
requiring reports from operators  - Part IV.D.  

3.3.f - Discussion of Tribes’ enforcement program - Part V.

3.3.f.1 - Administrative procedures for dealing with violations - Part
V.E.

3.3.f.2 - Nature and amounts of penalties, fines, and other enforcement
tools - Part V, especially Part V.G for penalties.

3.3.f.3 - Criteria for taking enforcement actions - Part V, especially
Part V.C.

3.3.f.4 - Because the Tribes are not seeking approval for an existing
enforcement program, this section of the 1981 guidance is not relevant.

	3.3.g - Details of the Tribes’ staffing and resources - Part I.B.

3.3.h - If more than one Tribal EPA administered program - not relevant;
only the OEP is administering the program.  See Part I.B.

3.3.i. - Schedule for completion of inventory - not relevant; the Tribes
have already done an inventory, which is contained in Appendix F.  Part
IV.D.5.d.ii also provides that the Tribes will maintain an accurate
inventory.

3.3.k - Plan for reviewing all existing Class II wells - Part II.E.

3.3.l - Description of public participation requirements relating to
permits - Parts II.B.3 and II.D.

3.3.m - Description of procedures for responding to public complaints -
Part II, second paragraph, referring to hearings based on any objections
in the notice phase of the permit process; Part IV.D.5.d.i, referring to
reports of emergency situations and citizen complaints.

	

		3. Statement of Legal Authority  tc "3. Statement of Legal Authority "
\l 4   

	The 1981 guidance states that the statement of legal authority may be
signed by “a competent legal officer of the State, for example, the
Attorney General, the Counsel for the responsible State EPA, or any
other officer who represents the EPA in legal matters.”  The Tribes’
statements of legal authority are signed by the law firm of Sonosky,
Chambers, Sachse & Endreson, which, according to a July 27, 1999 letter
from the Chairman of the Tribes, “serves as General Counsel to the
Assiniboine and Sioux Tribes, under a contract approved by the Secretary
of the Interior” and which “has full authority to independently
represent the Tribes and the Fort Peck OEP in court on all matters
pertaining to the Tribal Underground Injection Control program.”  The
signature of this law firm therefore is sufficient.

	The statement of legal authority may consist of either a full analysis
of the legal basis for the Tribes’ program or, if the PD details the
legal authority on which the various elements of the program rests, a
simple certification by the legal representative that the Tribes have
adequate authority to carry out the described program.  As discussed in
Section II.B.5, above, EPA finds the Tribes have demonstrated adequate
authority to administer a Class II underground injection control program
within the exterior boundaries of the Fort Peck Indian Reservation.  As
discussed above, to the extent the Tribes are precluded from asserting
any relevant criminal authorities, the Tribes and EPA have, consistent
with 40 CFR Section 145.13(e), entered into a Criminal Enforcement MOA
whereby EPA will retain such primary criminal enforcement authority.  

		4. Copies of Tribal Forms  tc "		4. Copies of Tribal Forms " \l 4   

	Part 3.6 of the 1981 Guidance states that the application should
contain examples of all forms used by the State or Tribe administering
the program, including application forms, permit forms, and reporting
forms.  Appendix C includes these forms.

		5. Memorandum of Agreement  tc "		5. Memorandum of Agreement " \l 4   

	Part 3.7 of the 1981 Guidance indicates that a state application should
include a copy of an MOA signed by the Director of the State EPA.  The
Tribes have submitted an updated MOA  signed by the Tribal Chairman on
April 3, 2007, and by the EPA Regional Administrator on 

July 31, 2007.  EPA finds that the Tribes’ MOA:  includes a commitment
by the Tribes that the program will be carried out as described and will
be supported by an appropriate level of staff and resources - see Parts
I.A, I.C, and I.D.; recognizes EPA’s right of access to any pertinent
Tribal files - see Parts I.E and V.A.; specifies the procedures
governing EPA inspections of wells or operator records - see Parts I.E
and V.G.; recognizes EPA’s authority to take Federal enforcement
action under Section 1423 of the SDWA in cases where the Tribes fail to
take adequate enforcement actions - see Part IV.D.; agrees to provide
EPA with an annual report on the operation of the Tribal program - see
Part V.D.; provides that aquifer exemptions for Class II wells be
consistent with aquifer exemptions for the rest of the UIC program - see
Part I.G.; does not include procedures for joint processing of permits
by EPA and the Tribes; however, this is not a requirement; and specifies
that if the Tribes propose to allow any mechanical integrity tests other
than those specified or justified in the program application, the Tribes
shall notify the EPA and provide enough information about the proposed
test so that EPA may make a judgment about the usefulness and
reliability of the test - see Part I.H.

	The Tribes and EPA have, consistent with 40 CFR Section 145.13(e), also
entered into a Criminal Enforcement MOA whereby EPA will retain primary
criminal enforcement authority in circumstances where the Tribes are
precluded from asserting any relevant criminal authorities.  This
Criminal Enforcement MOA was signed by the Tribal Chairman on April 3,
2007, and EPA Region 8 Criminal Investigation Division’s Special Agent
in Charge on April 9, 2007, and is incorporated by reference into the
MOA noted above.

		6. Public Participation  tc "		6. Public Participation " \l 4   

	The 1981 Guidance indicates that when States apply for primacy under
Section 1425 of the SDWA, they may, but need not, provide an opportunity
for public hearings and comments.  The Tribes have provided
opportunities for public hearings and comments, and these provisions are
acceptable to EPA.

III. Conclusion tc "III. Conclusion" 

	For the reasons discussed above, the EPA has concluded that there are
ample grounds for approving the Tribes’ application to administer the
Class II underground injection control program for all areas within the
exterior boundaries of the Fort Peck Reservation.

							Dated:  October 17, 2008.

								

							Stephen L. Johnson

							Administrator

							U.S. Environmental Protection Agency		

							

1See 40 CFR Section 145.1(h), which provides that all requirements of
Parts 124, 144, 145, and 146 that apply to States with UIC primary
enforcement authority also apply to Indian Tribes except where
specifically noted.

     2All of Section 144.5 was adopted by reference, which is more than
40 CFR Section 145.11(a)(1) requires. 

     3Section 144.11 was not adopted by reference, but Section 202(a) of
the Tribal Code explicitly provides that any underground injection into
a Class II well is prohibited unless authorized by a permit issued
pursuant to Title XVIII.

     4The Tribal Code did not adopt 144.12(c) or (d) by reference. 
However, because these subsections pertain only to Class V wells and the
Tribes have not applied for Class V primacy, this omission is not
relevant. 

     5Section 144.13 was not adopted by reference, but this is
unnecessary, because Section 202(a) of the Tribal Code expressly
prohibits injection into Class IV wells and Section 501 finds that there
are no Class IV wells on the Reservation.  The prohibition in Section
202(a) of the Tribal Code is at least as stringent as 40 CFR Section
144.13.

     6Section 144.14 applies to wells that inject hazardous waste. 
Because the EPA-approved Tribal program applies only to Class II wells,
this requirement does not apply.

     7The Tribes did not adopt EPA’s regulations for authorization by
rule.  EPA finds that insofar as the Code prohibits injection without a
permit and has omitted provisions for “rule authorized” injection,
the Tribal Code is more stringent than EPA’s program for regulating
Class II wells.  Omissions that result in a more stringent program are
allowed by Section 145.11(a).

     8The Tribes adopted only Section 144.31, subsections (a), (b),
(c)(2), (d), (e)(1-8 and 10), and (f).  The omission of Section
144.31(c)(1) concerning the time to apply for permits is not relevant,
because all wells on the Reservation have been permitted by EPA.  (See
Section IV.D.2.a of the Program Description.)  The omission of Section
144.31(d)(9) is not relevant because it applies to EPA-administered
programs.  The omission of 144.31(g) is not relevant because it applies
to Class I wells, which inject hazardous waste, and Class I wells are
prohibited by the Tribal Code. 

     9Section 302(b)(7) includes an additional provision that no permit
may be transferred without the Director’s (defined in this context as
the “Tribal director” pursuant to 40 CFR Section 144.3) express
approval and without a surety bond.   This requirement is more stringent
than what is in the comparable EPA regulation.

     10All of Section 144.53 was adopted by reference.

     11Section 302(b)(11) also includes some additional language making
the pertinent recording and reporting requirements more stringent than
the comparable federal requirements.

     12The Tribes adopted only Section 144.55(a) and (b)(1)-(3).  The
omission of subsection (b)(4) is not relevant because it pertains to
Class III wells.

     13It is not necessary for the Tribes to adopt any counterpart to 40
CFR Section 144.88, because this regulation pertains to Class V wells,
for which the Tribes have not sought primacy.

     14The Tribal Code adopted all of 40 CFR Section 124.5 by reference.

     15The Tribal Code adopted all of 40 CFR Section 124.6 by reference.

     16The Tribal Code adopted all of 40 CFR Section 124.10 by
reference, with an additional, more stringent, provision requiring a
permit applicant to mail a copy of its permit application to adjacent
surface and mineral rights owners and to owners and operators of
injection wells within a 1/4 mile of the permit covered by the
application.

     17The Tribal Code adopted all of 40 CFR Section 124.12 by
reference.

     18The Tribal Code adopted all of 40 CFR Section 124.17 by
reference.

     19Appendix F of the PD submitted with the Tribes’ application
indicates that there are twenty-five Class II wells on the Reservation. 
A more recent August 19, 2003 email from The Tribes’ OEP indicated
that there are twenty-one Class II wells.  On December 15, 2006, Nathan
Wiser, EPA UIC Inspector confirmed twenty-three Class II wells on the
Reservation.  

     20The term underground sources of drinking water, or USDWs, is
defined in 40 CFR Section 144.3 as an “aquifer or its portion (a)(1)
[w]hich supplies any public water system; or (2) [w]hich contains a
sufficient quantity of ground water to supply a public water system; and
(i) [c]urrently supplies drinking water for human consumption; or (ii)
[c]ontains fewer than 10,000 mg/l [milligrams per liter] total dissolved
solids; and (b) [w]hich is not an exempted aquifer.”

The Agency has analyzed the hydrogeology of the Fort Peck Reservation,
including the size and interconnected nature of the drinking water
aquifers found in the geological formations underlying the Reservation. 
Having then compared the Reservation’s hydrogeology to the widely
interspersed and checkerboarded land ownership patterns found throughout
the Reservation, the Agency concludes that any aquifer underlying
Reservation fee lands has a strong probability of being hydrologically
connected to aquifers which Tribal members may use as drinking water
sources.  Hence, pollution in aquifers underlying fee lands on the
Reservation can reasonably be expected to be carried, through surface or
underground pathways, to aquifers upon which Tribal members may rely for
drinking water, thereby adversely impacting the health and welfare of
Tribal members, as well as the political integrity and economic security
of the Tribes.

As explained in this Decision Document, the Tribes, if necessary, also
could show authority over nonmember activities on tribal/trust lands
covered by the Application under the Montana “impacts” test.

 

	See H.R. Report No. 93-1185, 93rd Congress, 2nd Session (1974),
reprinted in “A Legislative History of the Safe Drinking Water Act,”
February, 1982, by the Government Printing Office, Serial No. 97-9, page
561.

	Id., page 560.

	Id., page 540.

	Id., page 540.

	 “Underground Injection Control Regulations: Statement of Basis and
Purpose,” EPA, (May, 1980), page 7.

	“Underground Injection Control Regulations: Statement of Basis and
Purpose,” EPA, (May, 1980), pp. 7-17.

	See Federal Water Quality Administration’s Order COM 5040.10 (1970),
as referred to in H.R. Report No. 93-1185, 561.

See, e.g., the November 14, 2002 letter from Deb Madison to Vicki
Sullivan, Corps’ Program Manager, regarding “401 Water Quality
Certification on Nationwide Permit #12 - Repair/Replacement
telecommunications cable crossing the Poplar River - Project No.
2002-90-681,” the June 29, 2001 letter from Sandra White Eagle,
Environmental Protection Specialist for the Tribes, to Bob McInerney,
U.S. Army Corps of Engineers regarding “401 Certification for
Repairing exposed pipe/Improvement to existing structure, Missouri
River;” and the July 1, 1998 letter from Sandra Blount-White Eagle to
Larry G. Robson, U.S. Army Corps of Engineers, regarding “401
Certification with Conditions for O’Connor Bridge Project No. 6462.”

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