Answers to Frequently Asked Questions. April, 2014

Transcription

1 Indian Environmental General Assistance Program Guidance on the Award and Management of General Assistance Agreements for Tribes and Intertribal Consortia Answers to Frequently Asked Questions April, 2014 This document contains answers to frequently asked questions about the Indian Environmental General Assistance Program (GAP) Guidance on the Award and Management of General Assistance Agreements for Tribes and Intertribal Consortia (Guidance). The questions contained in this document were identified during the August 2011 February 2013 GAP Guidance development process involving consultation and coordination with tribal governments as well as internal EPA reviews. As a dynamic, living document, EPA will continue to update this FAQ with additional questions and answers as we implement the program under the new Guidance. Questions Relating to Guidance on the Award and Management of General Assistance Agreements for Tribes and Intertribal Consortia Section 1.0: Introduction Q 1.1: Did the Agency conduct consultation and coordination to involve tribes in the development of the new GAP Guidance? A 1.1: Yes. The Agency shared an initial draft Guidebook for Building Tribal Environmental Capacity with tribes and conducted a 6 month consultation and coordination process that ran from August 2011 through January In response to input from tribes, EPA revised the initial draft document and conducted a second consultation and coordination process from November 2012 through February The robust discussions with tribes and extensive written comments we received from tribes and tribal organizations substantially influenced the new GAP Guidance. EPA remains committed to continuing our direct government to government engagement with tribes as we implement the new GAP Guidance and establish effective mechanisms for measuring and reporting the progress tribes are making in building environmental protection program capacity. Draft: 04/03/14 Page 1 of 9

2 Q 1.2 Does the new GAP Guidance change eligibility criteria for tribes interested in receiving GAP funds? A 1.2 The new GAP Guidance does not change GAP grant eligibility criteria or eliminate previously funded GAP grant recipients from receiving future awards. Q 1.3: Is the GAP Guidance binding on grantees? A 1.3: Yes. As with prior GAP guidance documents, all assistance agreements funded under the GAP must be consistent with applicable Agency guidance. The new GAP Guidance is consistent with applicable provisions of federal law and regulations and provides details on program management needed to ensure continued success of the GAP. While tribes are not legally bound to the Guidance, the Agency has the discretion to not fund assistance agreements that are inconsistent with the principles and requirements set forth in the Guidance. As with all EPA funded financial assistance agreements (grants and cooperative agreements), grantees are bound by the terms and conditions of the award. The GAP Guidance provides flexibility to regions and applicants regarding what specific activities may be funded and what environmental protection program capacity milestones apply to GAP funded assistance agreements. Q 1.4 Does the new GAP Guidance make some activities previously funded under GAP unallowable? A 1.4 The new GAP Guidance does not change eligibility criteria for specific activities. However, by clarifying indicators of tribal environmental program capacity, the new Guidance establishes a nationally consistent interpretation of what activities are allowable. As a result, some activities previously funded under GAP may no longer be considered allowable. Q 1.5: The Office of Management and Budget Circular A 87 (also referenced at 2 C.F.R. 225) Appendix B(19), Cost Principles for State, Local, and Indian Tribal Governments uses fire and police services as examples of unallowable general types of governmental services. Does this restriction on funding government services apply to solid waste collection, transportation, backhaul, and disposal services? A 1.5: Yes. The referenced OMB Circular A 87, Appendix B(19) states: a. The general costs of government are unallowable [ ]. These include: (5) Costs of other general types of government services normally provided to the general public, such as fire and police, unless provided for as a direct cost under a program statute or regulation. Fire and police services are used as examples, but the restriction applies to all general types of government services normally provided to the general public. EPA has Draft: 04/03/14 Page 2 of 9

3 determined that regular municipal solid waste management services (collection, transport, storage, backhaul, and disposal) are covered by this restriction. Q 1.6: Can tribes use GAP funds for commercial enterprises, such as establishing environmentally preferable best management practices and planning for development projects? A 1.6: GAP funds may be used to plan, develop, and/or establish the capacity for tribal governments to administer environmental protection programs, including the establishment of generally applicable laws, codes, and/or regulations that impose compliance requirements on commercial activities consistent with the scope of the tribe s authority. The use of GAP resources for activities that primarily support a commercial enterprise is inconsistent with the purposes of the GAP and generally outside the scope of programs administered by the EPA. For example, if a tribal commercial enterprise is developing a natural resource extraction project (e.g., timber, natural gas, or minerals) and the enterprise is required to conduct an environmental assessment for the project, the use of GAP resources to conduct the assessment could be viewed as a subsidy to the commercial enterprise and would therefore be considered unallowable. Similarly, a commercial enterprise seeking to establish environmentally preferable practices and/or policies, best management practices, or other environmental measures does not have a direct relationship to building a tribe s capacity administer an environmental protection program and are therefore also unallowable under GAP. Section 2.0: Award Information Section 3.0: Performance Reporting: Indicators of Tribal Environmental Program Capacity Q 3.1: Are recipients of GAP assistance required to develop all of the capacities described in Appendix I? A 3.1: No. Recipients of GAP assistance should identify the environmental protection program capacity indicators that are appropriate to their own specific needs and priorities. The indicators in Appendix I offer a non exclusive menu of choices, organized by category of environmental program development; they need not all be selected. Tribes may also identify other capacity indicators in their GAP assistance agreement work plans that reflect their unique priorities and program development goals. Section 4.0: Developing EPA Tribal Environmental Plans (ETEPs) Q 4.1 Are EPA Tribal Environmental Plans (ETEPs) required before a tribe receives a GAP assistance agreement? Draft: 04/03/14 Page 3 of 9

4 A 4.1: No. However, tribes are expected to establish an ETEP with their respective EPA regional office in accordance with the regional schedule established pursuant to section 4.4 of the new GAP Guidance. Q 4.2: Will the identification of regulated entities that may affect tribal interests described by the GAP Guidance ETEP section 4.3 make jurisdictional determinations? A 4.2: No. Identifying sites, facilities, or other regulated entities that may affect tribal interests helps inform the EPA tribal planning process by providing publically available information to tribes about potential pollution sources. Where programmatically available, tribes may seek to partner with EPA to implement the Agency s regulatory program responsibilities or assume a lead role for administering aspects of the federal program, but the ETEP does not result in jurisdictional determinations. Q 4.3: Do intertribal consortia need to establish ETEPs? A 4.3: No. However, consortia should refer to the individual ETEPs of their member tribes when developing work plans to ensure that proposed activities are responsive to their member tribes program development goals. Section 5.0 Assistance Agreement Work Plan and Reporting Section 6.0 Application Submission, Review, and Award Process Section 7.0 Award Administration Draft: 04/03/14 Page 4 of 9

5 Questions Relating to Guidebook for Building Tribal Environmental Program Capacity Section A: Introduction Q A.1: Why does the new GAP Guidance contain so many capacity indicators, but very little information about which activities are allowable? A A.1: By illustrating the types of tribal capacity indicators appropriate for the GAP Guidance, EPA has established a performance based approach that avoids describing every example allowable and unallowable activity. Section 1.4 ( Allowable Activities and Restrictions ) provides some general guidelines regarding eligible and ineligible activities, but it is not practicable to provide an exhaustive list of activities given the diversity of tribes and tribal environmental protection programs being developed across the country under GAP. Generally, any activity related to planning, developing and establishing tribal capacities needed to implement a tribal environmental protection program consistent with the purposes and requirements of programs administered by the EPA are allowable. Q A.2: Can GAP funding support the recurring costs of maintaining core environmental program capacities (administrative, financial management, information management, environmental baseline needs assessment, public education/communication, legal, and technical/analytical)? A A.2: EPA acknowledges that maintaining core environmental protection program capacities is a continuing programmatic need. As such, each GAP assistance agreement generally contains recurring indirect costs and administrative activities necessary for planning, developing, and establishing tribal environmental protection program capacity. GAP funds supporting these recurring costs are allowable. However, as described below (Q A.3), GAP funds should not be used to fund recurring costs associated with maintaining an environmental prescience outside the context of planning, developing, and establishing tribal environmental protection program capacity. Q. A.3: Can tribes continue to receive GAP funding after it has successfully established core or media specific environmental protection program capacity? Does a tribe become ineligible from receiving GAP funds once capacity indicators have been achieved? A A.3: As described in Section A.3 of Appendix I: Tribes that have successfully developed capacity in a given area can continue to receive GAP funding to expand, enhance, or evolve their capacity. For example, a tribe with a community education program may continue to receive GAP funds to expand the program by adding new features, such as outreach strategies for vulnerable groups (i.e., children, the elderly, people in poor Draft: 04/03/14 Page 5 of 9

6 health, and expectant mothers) or identifying new media outlets to reach target audiences. Similarly, a tribe with basic water program capacity may continue to receive GAP funds to expand their water program by adding new baseline data to their existing program, developing additional laboratory analysis quality assurance plans, or adding capacity to share additional water quality data across multiple data platforms. EPA acknowledges that tribes may need to re establish capacities due to staff turnover, land acquisition, or other changing circumstances and may need to revise their program development goals. As such, tribes can continue to receive GAP funding to expand, enhance, or evolve their capacity in light of specific tribal needs. However, the EPA expects that tribes receiving GAP funding will demonstrate capacity building progress over time rather than repeating similar work plan activities from year to year maintaining an environmental presence alone is inconsistent with the purposes of the GAP. Q A.4: Once a tribe has successfully established environmental protection program capacity, how will EPA support tribal program implementation? A A.4: The Agency is aware that tribes continue to request additional resources for program implementation and remains committed to working with tribes to identify implementation resources, including funding from non EPA sources. Section B: Building Core Environmental Protection Program Capacities Q B.1: Can the GAP fund work to revise existing environmental plans? For example, if a tribe has a Management Plan for the CWA 319 that needs to be revamped every three years, can GAP pay for this revision? A B.1: Generally, revising an existing plan would be considered a program implementation activity that GAP would not pay for. However, there may be circumstances where a tribal program is looking to significantly expand a program to address new environmental issues, creating a need for new or expanded capacity, including new plans and procedures. Identifying the line between program implementation and planning, developing, and establishing program capacity relies on the unique circumstances surrounding a proposed activity. The Guidance establishes general criteria to help guide EPA project officers and grant applicants and provides generally applicable examples to help illustrate the distinction it does not attempt to define all allowable activities. As a result, the new GAP Guidance does not explicitly state that updating/revising existing plans are allowable or unallowable activities. We anticipate that decisions on whether to fund such activities will be guided by specific circumstances and informed by a tribe s long range program development goals. Draft: 04/03/14 Page 6 of 9

7 Section C: Building Tribal Ambient and Indoor Air Quality Program Capacities Section D: Building Tribal Water Quality Program Capacities Section E: Building Solid Waste, Hazardous Waste, and Underground Storage Tank Program Capacities Q E.1 Can tribes use GAP funds to provide solid waste collection, transportation, storage, backhaul, and disposal services? A E.1 Generally, no. EPA interprets such services as outside the scope of programs administered by the EPA and subject to the restriction against funding general types of government services normally provided to the general public described in the OMB Circular A 87, Appendix B(19). This applies to a number of collection and transportation scenarios, including: door to door collection of waste and/or recovered resources (recycling, composting, light bulbs, e waste, or other source separation material); collection and transportation of waste and/or recovered resources from a collection station to a source separation facility, such as a tribal transfer station; and collection and transportation of waste and/or recovered resources from a source separation facility to a disposal facility, such as a landfill, incinerator, or recovered materials processing facility. Q E.2 Can tribes use GAP funds to provide resource recovery / source separation services? A E.2 Generally, no. EPA interprets such services as outside the scope of programs administered by the EPA and subject to the restriction against funding general types of government services normally provided to the general public described in the OMB Circular A 87, Appendix B(19). Q E.3 Can tribes use GAP funds to pay for operations and maintenance (O&M) activities at solid waste and/or resource recovery / source separation facilities, including collection stations? A E.3 The authority to fund tribal solid and hazardous waste program implementation under GAP does not cover routine facility O&M (personnel time for crushing cans, bailing paper, boxing light bulbs, securing/handling of household hazardous waste, sweeping/cleaning the facility, weighing materials, operating forklifts, driving trucks/vehicles, etc.). Collection stations (e.g., recycling/composting canisters, e waste/household hazardous waste drop offs, etc.) are essentially an extension of the Draft: 04/03/14 Page 7 of 9

8 tribe s source separation facility and collection/transport activities for such facilities are therefore considered facility operations not authorized under GAP. Allowable implementation activities are described in GAP Guidance Appendix I, Section E.4 (p. 29 of 42). Q E.4 Can tribes use GAP funds to conduct open dump cleanup and closure activities? A E.4 Yes. However, the Indian Health Service is the primary federal agency responsible for identifying, assessing, and funding open dump cleanups and closures. The GAP Guidance prioritizes funding for tribal government efforts to establish sustainable waste management programs designed to address and prevent new, or recurring, unauthorized dumping on tribal lands. Section E.4(d) of Appendix I ( Cleanup and Closure Activities ) describes the conditions that should be met prior to using GAP funds for cleanup and closure activities. Generally, proposed implementation activities should not be funded until a tribe has established a program consistent with Section E.4. Q E.5 What facility construction costs are allowable under GAP? A E.5 RCRA 4008 lists source separation projects as an authorized item of cost. It also prohibits any other element of construction (i.e., any construction cost not associated with a source separation project ). As a result, the GAP Guidance Section E.4(c) (p. 31 of 42) provides examples of allowable construction costs for source separation projects. These examples include: transfer stations, recycling centers, compost facilities, household hazardous waste collection facilities, bulk waste/appliance/electronic waste collection facilities; construction and demolition debris facilities, used oil collection stations, and other similar facilities. Because transfer stations typically receive the entire municipal waste stream, we would calculate the % of total transfer station construction costs that relate to the recipient s source separation project (used oil, light bulbs, batteries, C&D waste materials, household hazardous wastes, compostable material, etc.) and approve GAP funding for that portion of the project rather than funding the entire transfer station. Q E.6 Can GAP fund a tribe or intertribal consortia to host a community cleanup event as a stand alone project (e.g., household hazardous waste, e waste, or roadside litter pickups)? A E.6 Generally, yes provided the applicant can demonstrate that appropriate safety precautions are met (safety equipment, containers, training, and liability provisions) AND that the proposed activity relates to a clearly documented long range program development goal or helps to implement an established program consistent with the GAP Guidance Section E.3. Community cleanup events can: (1) educate community members about proper waste management practices; (2) educate community members about impacts of unauthorized disposal; (3) promote a change of behavior related to littering; (4) increase participation in recycling/waste min/reuse/source Draft: 04/03/14 Page 8 of 9

9 separation/resource recovery programs; (5) inform community members about locally applicable waste management codes/regulations; (6) collect information about community attitudes & waste disposal practices to help a tribal government design effective Integrated Waste Management Plans and associated programs; and (7) protect human health and the environment by removing hazards from the community. Q E.7 Do regions have to submit proposed community cleanup event proposals to AIEO for review prior to approving and awarding GAP funds? A E.7 It depends. Generally, community cleanup events (as described in A E.6) are allowable and do not require an AIEO approval. However, if the community cleanup event is for a particular non compliant municipal solid waste management facility, including open dumps, the activity would be subject to GAP Guidance section E.4(d). As a result, the cleanup work would require an AIEO approval prior to awarding GAP funds. Section F: Building Tribal Contaminated Site Remediation and Emergency Response Program Capacities Section G: Building Tribal Chemical Safety and Pollution Prevention Program Capacities Draft: 04/03/14 Page 9 of 9