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Guidance on Basic Elements of an EPA-Funded Tribal Pesticide Program

Authors: Office of Enforcement and Compliance Assurance
Office of Pesticide Programs
Date:  March 11, 2002
Forward: Document Intent

Table of Contents

1. Purpose and Background

This guidance document describes basic elements for an EPA-funded tribal pesticide program. It is intended primarily for use by EPA regional staff as they provide assistance to tribes (1) that are assessing their pesticide program needs, negotiating EPA/tribal cooperative agreements, and implementing pesticide programs where they are desired and needed. While it focuses mainly on cooperative agreements authorized under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Section 23(a), it also briefly discusses other cooperative agreement funding that may be available from EPA to address tribal pesticide issues. This guidance is expected to provide useful information to tribes, as well as to EPA regions. It safeguards the flexibility tribes require to create and adopt programs that accommodate their own needs and priorities while defining basic, nationally consistent program elements that ensure EPA's equitable support of tribal pesticide programs.

A tribal pesticide program, as described in this document, is one that supports general implementation of the provisions and requirements of FIFRA. Section 23(a)(1) of FIFRA, as amended, authorizes EPA to enter into cooperative agreements with states and Indian tribes and delegate to them the authority to cooperate in the enforcement of the Act, and Section 23(a)(2) provides for assistance to tribes that enter into cooperative agreements for certification and training programs. (2)

Pursuant to the Departments of Veterans Affairs and Housing and Urban Development, and the Independent Agencies Appropriations Act for fiscal year 1999, pesticide program implementation grants under Section 23(a)(1) of FIFRA are available for "pesticide program development and implementation, including enforcement and compliance activities."

Since FIFRA explicitly mentions tribes only in Section 23, the Agency is considering ways in which it might best work with tribes under other sections of the Act.

In addition to laying out the basics of an EPA-funded tribal pesticide program, this document suggests some supporting enforcement and programmatic activities that tribes might choose to undertake. The suggested activities are not inclusive; rather, they are intended to provide examples of some kinds of activities that might appropriately be included in an EPA-funded pesticide program in Indian country. (3) EPA expects that tribes will develop tailored pesticide programs and engage in related pesticide management activities based on the needs and priorities of their communities.

This guidance has been developed jointly by EPA's Office of Enforcement and Compliance Assurance (OECA) and Office of Pesticide Programs (OPP), in consultation with EPA's regional pesticide program leads. It has been circulated for comment among EPA's Regional Tribal Assistance Coordinators, EPA's Office of General Council, representatives of EPA's American Indian Environmental Office, and members of the Tribal Pesticide Program Council (TPPC). (4)

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2. The Pesticide Assessment

If the tribe wishes, EPA regional staff may provide the tribe with advice on conducting a pesticide assessment, a critical first step in the development of any pesticide program. This comprehensive consideration of existing and projected pesticide use will help the tribe determine the potential value of including a pesticide program in its overall environmental management program and clearly define those aspects of a pesticide program that will most benefit the tribal community.

The assessment will identify existing pesticide use patterns and pesticide related activities and concerns that should be addressed by program activities (referred to as "program elements" or "basic elements" in this guidance document). For example, because of location, or for other reasons, some tribes may not need an endangered species (5) component in their pesticide programs. Some tribes may focus their pesticide management efforts primarily on residential and structural uses, while others may be more concerned with agricultural issues. Similarly, other program elements may be added or omitted from a particular tribal pesticide program because of the unique circumstances of the tribe. Tribal pesticide assessments, as well as other pesticide program activities, may be funded by one of several EPA cooperative agreement programs. Further information on these possible funding mechanisms is found in Section 3 of this document.

2.1. Community Outreach and Partnership Development

It is extremely important for the whole tribe to consider prevalent pesticide issues as the pesticide assessment is being conducted. Is there reason to be concerned about spray drift, revolatization drift, or run off? What steps might be taken to help tribal members recognize the importance of regulating and managing pesticides? Is there a need for community outreach and education? If so, what information do community members need, and how can it best be shared? Is there a need to engage in other specific activities to protect workers, ground and surface water, and endangered or threatened species? What are the compliance and enforcement needs of the tribe? An early and continuing flow of information to all interested parties is a critical part of gaining their interest and assuring the success of the program.

From the beginning of the assessment process, the assessor and other tribal pesticide program staff should also work to develop mutually supportive partnerships and professional contacts. Other tribal colleagues such as staff in the tribal water program or environmental professionals from other tribes, staff from federal, state and local government agencies, such as the U.S. Geological Survey or health officials, may provide data or insights that increase the accuracy and completeness of the assessment, and additionally support the program as it develops.

2.2. Information Gathering

As an early step in developing a new pesticide program the tribe must identify the types of pesticide activities that are already occurring within its Indian country and the pesticide related issues that the tribe might want to regulate or manage under tribal law. The following information could heighten the tribe's recognition of existing needs.

As it assesses existing pesticide use patterns, the tribe should evaluate its overall need for restricted use pesticides (RUPs). RUPs are pesticides that EPA has prohibited for application by the general public because of potentially greater risks associated with their use. Federal regulations (40 CFR Part 171) require that pesticide applicators must be certified as competent in accordance with national standards if they are to apply RUPs. For a further discussion of RUP certification requirements, see Section 3.3.1 of this guidance. Answers to the following questions will provide the tribe with important information on existing RUP use, and open the way to consideration of the tribe's need for a certification and training component in its pesticide program.

As with all pesticides, data describing use of RUPs within Indian country should be assessed in a context that includes population distributions, proximity to ecologically and/or culturally sensitive areas, and other information relevant to human and environmental health.A careful tribal evaluation of answers to questions like those suggested in this section will enable tribal and EPA regional pesticides personnel to design a program that will provide maximum benefit to the tribe and the Indian country environment.

Following its assessment, the tribe, in consultation with EPA regional staff, should determine what additional pesticide regulatory and programmatic activities it will undertake under tribal law. Decisions as to the breadth and depth of elements included in the program will need tribal leadership support, and should reflect the real needs of the tribal community.

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3. Sources of Funding for Continuing Pesticide Work

Funding isgenerally a critical concern for tribes that are assessing the need for and implementing pesticide programs or projects. EPA provides several different funding mechanisms to support tribal pesticide activities. Under the General Assistance Program (GAP), which is managed by the American Indian Environmental Office (AIEO), funds are provided to tribes to build their capacity to administer programs across environmental media, including pesticides. Pesticide program development and implementation activities can also be funded under FIFRA. Specific support for tribal pesticide programs originates in two different offices in EPA Headquarters, the Office of Enforcement and Compliance Assurance (OECA) and the Office of Pesticide Programs (OPP).For FIFRA continuation cooperative agreements, funding from these two offices is sometimes combined in a single cooperative agreement that includes activities funded by each office.

The ability to fund some pesticide related activities may not lie exclusively with one office. For example, certification and training activities may be funded by either OECA or OPP, and tribal pesticide assessments may be supported by FIFRA as well as GAP monies. OECA's annual budget contains funds that are authorized to be used to support enforcement activities in continuingstate and tribal pesticide programs.OPP funding may be used by the regions to support some elements of continuing tribal programs, but levels of OPP funding that are available to the regions may fluctuate from year to year.

OECA and OPP intend to continue to provide federal support for tribal pesticide programs as Agency resources allow. As with other EPA program activities, tribal program funds are limited by annual Congressional appropriation levels. Both offices are committed to seek opportunities to leverage funds, and find innovative ways toencourage the successful implementation of tribal pesticide programs. This national guidance helps to ensure an equitable distribution of the available federal tribal pesticide program funds.

The main sources of EPA funding for tribal pesticide programs and the activities associated with each source, are discussed in the following sections.

3.1 General Assistance Program Cooperative Agreements

A significant source of funding for tribal capacity building is provided by grants under the Indian Environmental General Assistance Program Act. GAP funds provide tribes with an opportunity to build core environmental programs and prioritize environmental concerns. Capacity building activities that are eligible for funding under GAP include program planning and development, and assessing environmental resources and environmental issues. In general, GAP monies may be used by tribes for activities that expand their ability to protect the environment. They may not be used to support the routine, day to day activities that are part of running an established program. GAP recipients must apply for new GAP cooperative agreements every four years if they desire continued GAP funding.

3.2 OECA's Enforcement Cooperative Agreement Program, FIFRA Section 23(a)(1) (40 CFR Sections 35.640 through 35.645)

The Office of Enforcement and Compliance Assurance (OECA) provides State/Tribal Assistance Grant (STAG) funds to support state and tribal pesticide compliance and enforcement programs. These monies are distributed to the EPA regions by OECA. Regional offices provide the funding, up to 100% of approved work plan costs, to tribes through Enforcement Cooperative Agreements that include pesticide compliance and enforcement activities. The funding may initially be used to conduct a pesticide assessment. (See section 2). Following its assessment, the tribe, in consultation with EPA regional staff, must determine whether it needs and wants to develop a continuing pesticide program supported by an OECA Enforcement Cooperative Agreement, or whether its pesticide program needs may be better addressed by other means.

Originally, pesticide program funding from an Enforcement Cooperative Agreement was expected to be used for regulation development, law enforcement, and certification and training (C&T) plan development. However, as was noted earlier, because of differing pesticide use patterns among tribes, not all tribes will require the same pesticide program elements.

OECA strongly encourages EPA regions and tribes to work together before they enter into an Enforcement Cooperative Agreement to determine whether a pesticide enforcement program is appropriate for, and desired by, the tribe. (Reference section 2 of this guidance for information on the assessment process.)

3.2.1. Basic Elements for Enforcement Cooperative Agreement Funding

Certain basic elements are suggested for atribal pesticide program that is supported by OECA Enforcement Cooperative Agreement funds.

The usual steps tribes take to access and use OECA Enforcement Cooperative Agreement pesticide program funds are described in the following subsections.

3.2.2. The Proposal

The tribe must develop and submit a proposal, after it determines that it is interested in funding a pesticide program under an Enforcement Cooperative Agreement. The proposal should include information on projected budget and staffing needs, a work plan showing proposed program activities, and a time line with goals and milestones. The tribe should work closely with EPA regional staff to develop proposal elements and a time line that will produce a successful Enforcement Cooperative Agreement pesticide program. Time lines and milestone activities are expected to be negotiated between the tribe and the region. 40 CFR Part 31 Subpart B and 40 CFR Sections 35.505 through 35.509 provide guidance on developing a cooperative agreement proposal. The following suggestions, which are based on information in the tribal chapter of OECA'sPesticide Project Officer's Manual, may provide additional helpful guidance.

3.2.3. Early Goals and Milestones - Year One

The initial year can be a difficult one for a new tribal pesticide program. Community awareness, staffing, training and skills development, and other basics necessary for program success may not yet be in place. The tribe may depend on expertise in the EPA region to provide answers to general questions, facilitate networking with other pesticide program professionals, provide guidance in data maintenance, and for other program support assistance. During the first year, tribal pesticide program activities should include the following:

EPA recognizes that tribal pesticide codes may vary widely, and that the tribe has the right to determine the content of its laws. An Enforcement Cooperative Agreement may be used to support all activities that are included in tribal pesticide codes, including those not specifically supporting FIFRA requirementsso long as such activities have a clear connection to pesticide management. Fundable enforcement activities undertaken by a tribe might include adopting codes and ordinances, implementing tribal policies or plans that control or prescribe pesticide activities (e.g., development and implementation of best management practices that result in reduced use of pesticides, or taking enforcement actions against violators), monitoring compliance with the Worker Protection Standard, conducting inspections of agricultural, non-agricultural, and market placesto verify legal product sale and use, and developing and providing compliance assistance.

While EPA does not officially "approve" or "disapprove" tribal pesticide codes, it does review pesticide codes that are developed with federal funding to ensure that they meet minimum federal requirements under FIFRA. OECA Enforcement Cooperative Agreements may not be used to fund the development of tribal pesticide codes or programs that are less stringent than FIFRA requirements.

By the end of the first year, the tribe should be able to answer the following broad questions, based on data accumulated during initial information gathering (section 2.2) and knowledge and expertise acquired during the development and implementation of first year program activities.

The tribe is encouraged to work with a trained EPA, tribal, or state inspector as it develops its new pesticides program. Tribes initiating new pesticide programs are encouraged to work with experienced Tribal Pesticide Program Council (TPPC) members to ensure the success of their new programs. (6)

3.2.4. Years Two through Five and Beyond

In years two, three, and four of the Enforcement Cooperative Agreement Program, the tribe should develop a priority setting plan, a penalty policy, an enforcement response policy, aneutral inspection scheme, (7) a matrix of enforcement, and a means of identifying and addressing high level/priority episodes and complaints. Descriptions and examples of these documents can be provided to the tribe by the EPA region. Note that the tribe may elect to use document titles and formats that differ from the examples. It may be easier for the tribe to develop these documents after it has adopted its Pesticide Code or Ordinance. From the fifth year onward, the tribal pesticide program should be established in its activities.

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3.3. Office of Pesticide Programs Funding and Program Activities

The Office of Pesticide Programs (OPP) at EPA Headquarters provides State/Tribal Assistance Grant (STAG) funds to support state and tribal pesticide programmatic activities, including protection of agricultural workers, ground and surface water, and endangered and threatened species, from pesticides. These monies are provided to the EPA regions by OPP. Regional offices provide the funding to states and tribes through cooperative agreements that include eligible pesticide tasks. Some eligible activities are described below.

3.3.1. Certification and Training (C&T)

Generally, in order to apply restricted use pesticides (RUPs), pesticide applicators must be trained and certified as competent in accordance with national standards. Certification programs may be conducted by state, territorial, and tribal pesticide lead agencies, as well as universities or extension agencies. They provide training and certification in various areas, including agricultural use on farms, livestock, and rangeland, and non-agricultural use in forest operations, on ornamentals and turf, for seed treatments, in aquatic environments, on golf courses, in greenhouses and nurseries, on rights-of-way, in industrial applications (e.g., cooling water), in structures, for mosquito abatement, for wood preservation, as disinfectants, and for purposes of public health, among others.

As part of its pesticide program, a tribe may elect to develop and implement an EPA approved C&T plan which may include identifying or training RUP certified applicators, and administering and monitoring certification exams. Note that, because pesticide use patterns differ among tribes, the development of a C&T plan may not be appropriate for all tribal pesticide programs. For example, if RUPs are not used in the tribe's Indian country, the tribe would have no need to certify RUP applicators.

3.3.2. Worker Protection

The EPA Worker Protection Standards (WPS) require employers of agricultural workers to, among other things, ensure that there is basic pesticide safety training, distribution of information, protective clothing and equipment, and restriction of re-entry intervals. A tribe may choose to develop and implement a Worker Protection Program consistent with the federal WPS or adopt broader or more stringent standards, and develop a Worker Protection Program to implement them.(See 40 CFR Part 170 for regulations describing the federal Worker Protection Standards.)

3.3.3. Endangered Species Protection

Under the Endangered Species Act, OPP evaluates the risks posed by the use of pesticides on threatened and endangered species. As part of its risk management program, OPP has developed and made county bulletins available which provide county-level maps of endangered species habitats and information on specific pesticides and use limitations that are protective of listed species. A tribe might choose to use EPA's county bulletins to identify critical habitats and develop and implement a tribal plan, for EPA review in conjunction with the U.S. Fish and Wildlife Service (FWS), to protect threatened and endangered species. (8)

3.3.4. Protection of Water Quality

Over fifty percent of Americans nationally, and over 90 percent in rural areas (including many areas of Indian country), rely on ground water sources for their drinking water. In rural areas, most of these private wells are untreated. There are risks from pesticides that have been shown to contaminate surface and ground water, and persist in the environment, from uses in both agricultural and urban settings. EPA is developing a water quality field program that focuses on surface and ground water protection from pesticide contamination. The Agency is exploring several key areas to support this objective:

  1. Utilization of information already available within the tribes and states and other sources,

  2. Integration of the role of pesticide registration actions into pesticide management to ensure the integrity of water resources and to ensure a reasonable certainty of no harm to human health,

  3. Building partnerships with other federal agencies such as USDA and USGS, and


  4. Assisting tribal pesticide lead agencies in developing cross media programs within tribal governments.

Tribes may elect to use OPP funds to address pesticide water quality issues in addition to the Agency objective outlined above. EPA currently does not have the resources to evaluate water quality assessments and management strategies for individual chemicals. Tribes should contact their respective regional offices for assistance in pesticide management planning and in obtaining funding consultative services.

3.3.5. Storage and Disposal

Basic information on proper storage and disposal of pesticides and their containers is found on the container labels. The labels also include instructions for properly emptying containers and, if appropriate, for rinsing them. Other than the instructions on the labels, there are currently no requirements under FIFRA for storing pesticides, although some states, universities, and industry associations have issued storage guidelines. Disposal requirements for unwanted pesticides and containers may fall under the federal solid and hazardous waste regulations of the Resource Conservation and Recovery Act. About half of the states organize and fund "Clean Sweeps" programs, which collect and properly dispose of unwanted pesticides. Tribal pesticide storage and disposal projects might include activities such as developing and implementing Clean Sweeps programs and developing and using of best management practices for the storage, mixing, and loading of pesticides. EPA expects to release federal standards for pesticide containers and containment structures in early FY 2003.

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4. Conclusion

This guidance document was written to provide guidance on assessing the need for, developing, and implementing a federally funded tribal pesticide program. The guidance describes elements of a tribal pesticide program, and suggests ways in which tribes might elect to manage pesticide use in Indian country. It discusses tribal pesticide program funding mechanisms that are managed by three different EPA offices, OECA, OPP, and AIEO, and explains how each may be used for program support. The discussion of funding emphasizes the OECA Enforcement Cooperative Agreement program, since this is the largest source of continuing funding for tribal pesticide programs.

The information provided here is meant to support cooperative work between tribes and EPA and enhance the success of tribal pesticide programs. The success of these programs will help ensure adequate protection of human health and the Indian country environment from risks posed by pesticides.

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Document Intent

The discussion in this document is intended solely as guidance. This document is not a regulation. It does not impose legally binding requirements on EPA, tribes, or the regulated community. This guidance does not confer legal rights or impose legal obligations upon any member of the public. The general description provided here may not apply to a particular situation based on the circumstances. Interested parties are free to raise questions and objections about the substance of this guidance and the appropriateness of the application of this guidance to a particular situation. EPA retains the discretion to adopt approaches, where appropriate, and on a case-by-case basis, that differ from those described in this guidance. This document may be revised periodically without public notice. EPA welcomes public input on this document at any time. (return)

Footnotes:

1. FIFRA does not define "tribe." For the purposes of this document, "tribe" means an Indian tribe, band, nation, pueblo, community, or Alaska native village that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Tribe List Act of 1994, 25 U.S.C. section 479(a) and updated periodically in the Federal Register. Further, for the purposes of this document, a group of tribes that applies for a FIFRA cooperative agreement (called an "Intertribal Consortium" in 40 CFR Part 35) will be treated in the same manner as a single tribe. (return)

2. SEC. 23. STATE COOPERATION, AID, AND TRAINING.

(a) COOPERATIVE AGREEMENTS.-The Administrator may enter into cooperative agreements with states and Indian tribes-

(1) to delegate to any state or Indian tribe the authority to cooperate in the enforcement of this Act through the use of its personnel or facilities, to train personnel of the state or Indian tribe to cooperate in the enforcement of this Act, and to assist states and Indian tribes in implementing cooperative enforcement programs through grants-in-aid; and

(2) to assist states in developing and administering state programs, and Indian tribes that enter into cooperative agreements, to train and certify applicators consistent with the standards the Administrator prescribes. (return)

3. This guidance uses the term "Indian country" to mean: a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; (b) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. See 18 U.S.C. ยง 1151. (return)

4. The TPPC, which was organized in 1999, provides tribes with a forum for discussion of pesticide issues in Indian country and gives them a clear voice in the determination of national pesticide policies and a recognized channel for bringing tribal pesticide issues to federal attention. (return)

5. For further discussion of endangered species protection, see section 3.3.3 of this document. (return)

6. TPPC activities include supporting a formal pesticide partnership program. Contact EPA regional pesticide program coordinators for information. (return)

7. A "neutral inspection scheme" describes the types of inspections that may be conducted, how often they will occur, and on what basis they will be performed, without showing preference or prejudice to individuals or enterprises that are subject to inspection. (return)

8. Species identified by a tribe but not listed by the Fish and Wildlife Service may be included in a tribe's endangered species protection plan. (return)

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