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Minutes of the Inaugural Meeting of the Tribal Pesticide Program Council (TPPC), January 25-26, 2000

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The meeting was chaired by Interim Chairman Irving Provost (Oglala Sioux Tribe) and facilitated by Kesner Flores (Wintun EPA/Cortina Rancheria).

The meeting was held in the middle of "the Northeast Blizzard of 2000". Government offices, schools, and many businesses were closed, a state of emergency declared, and people were advised not to travel. Therefore, a number of expected participants from the D.C./Virginia area were unable to attend. However, all 30 tribal representatives who were expected did attend for the full two days, with the exception of one, who had a family emergency.

Despite the severe weather and the fact that all federal government employees were entitled to be on leave during this storm, Anne Lindsey (Director, Field & External Affairs Division), Elizabeth Resek (Tribal Coordinator), Regina Langton, and Kennan Garvey (Government and International Services Branch Chief) were able to make it to the meeting and provide assistance. The TPPC wishes to express its appreciation to them for their efforts "beyond the call of duty."

Reporters attending or interviewing regarding the meeting were from Pesticide Report (Sue Darcy) the Bureau of National Affairs (reporter Karen Werner at (202) 452-4200), and Native American Report (reporter Kim Hayes, at (301) 587-6300). A representative from U.S. EPA Office of Environmental Justice, Danny Gogol, was in attendance and provided information on the National Environmental Justice Advisory Council's (NEJAC) next meeting. A representative from the U.S. Office of the Interior, Bureau of Indian Affairs, Jerry Gidner, Director of the BIA's office of Environmental Protection and Cultural Resources, was also in attendance. His telephone number is (202) 208-5696.

Opening Ceremony & Prayer

The meeting opened with a moment of silence to honor and remember all those who have passed on.

An effort was made to contact tribes in Virgina, specifically the Pamunkey Tribe, to offer a blessing for the group, and they expressed their appreciation for this invitation, but were unable to attend. An Opening Blessing was offered by Fred Gonzales of the Colorado River Indian Tribes.

Introductions and TPPC Creation & Goals - Irv Provost, Interim TPPC Chairperson

Everyone was asked to introduce themselves and welcomed to this first meeting. A copy of the TPPC Proposed Rules and Procedures was provided to each Council members. All were reminded that the present TPPC Goals are set out at some length in the Proposed Rules and Procedures document, but that this document is not "set in stone", and is a living document. The TPPC Executive Committee always welcome suggestions for improvement or recommendations.

Toby Jones, President of the State FIFRA Issues and Research Evaluation Group (SFIREG) - Presentation and Questions & Answers

Ms. Jones was unable to attend due to the flu, and sent her regrets. Chairperson Provost observed that Ms. Jones has always been very supportive of the TPPC and we look forward to the opportunity to hear from her some of the benefit of the experience of SFIREG.

Overview of U.S. EPA, Office of Pesticide Programs/Tribal Relationships - Marcia Mulkey, Director of OPP

Director Mulkey was unable to attend although she did participate in a two hour meeting on January 24, 2000 with a group of Tribal representatives, focused on the question of Subsistence Concerns.

Presentation by Anne Lindsey, Director, Field & External Affairs Division (OPP)

Director Lindsay welcomed us all to the meeting and stressed that this is a good beginning for us all to have a good basic understanding of each other. The Office of Pesticide Programs has 900 people working for it in D.C., and there are about 200 people in the Regions who do programmatic work. The mission of OPP is to protect human health, ensuring that the use of pesticides presents a "reasonable certainty of no harm" and to protect the environment. As an office they deal with approximately 20 major pesticide producers (although she added that that number has been steadily declining, with fairly consistent consolidation in the business) and about 100 small producers. There are 2,500 pesticide formulators, 29,000 distributors, 40,000 commercial pest control operators, 1 million farms, and 90 million households involved. OPP is primarily a licensing program, regulating products, not pollutants, with the regulated community at their door, and they do not engage in a great deal of rule-making; most policy gets made in the course of the registration process. Their legal authority comes from FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act, a statute that requires balancing), the Federal Food, Drug & Cosmetics Act - primarily regarding pesticide residues in food, and more recently, in 1996, the Food Quality Protection Act.

Among the key changes brought about by the Food Quality Protection Act are:

(All FQPA documents are on EPA's website at http://www.epa.gov/pesticides/regulating/laws/fqpa/backgrnd.htm)

In essence, the pesticide label is the law. States have the primary enforcement responsibility, and tribes can as well.

At this point council representatives raised questions regarding "primacy" - what does it mean and do tribes have it under FIFRA?

Primacy means the direct authority to enforce the pesticide label, primarily through use inspections, warehouse inspections, and a range of things. States get funds from EPA to do this. It is a relatively small amount. A number of the states make a big contribution as well. Tribes are specifically mentioned in section 23 of FIFRA. Thirty-one tribes have cooperative agreements with U.S. EPA under FIFRA.

The new legislation is pushing US EPA towards a more holistic approach. The vision is to promote use of new pest control strategies, working with users, developing stewardship programs, trying to improve labels, and reduce exposure. Worker protection which has just been in place for 5 years is now undergoing assessment of its effectiveness. Training needs to be improved and fine-tuned for more vigorous enforcement.

Ms. Lindsay outlined for the group the 100 year history of pesticide legislation, pointing out that in the beginning (the 1906 Pure Food Law) the primary

intention was to protect buyers against "snake oil". FIFRA was enacted in 1947. When EPA was established in 1970, pesticide regulation was transferred to EPA from USDA.

OPP is under the oversight of the House & Senate Agriculture Committees (FIFRA) and under the FDCA oversight is with the Commerce Committee in the House and the Labor & Human Resources Committee in the Senate.

Regulations are being developed regarding authority over disposal.

The Council was provided with an organizational chart of U.S. EPA's Office of Pesticide Programs and what each division's responsibilities are.

Questions were raised about the Emergency Exemption Authority

The emergency exemption is granted when there is no registered pesticide that can do the job. In certain emergency cases, FIFRA permits approval of unregistered uses of registered products on a time-and geographically-limited basis. States may ask for an exemption. According to EPA documents in FY 99 they received 630 Sec. 18 requests. They approved 455, denied 22, 65 were withdrawn and 88 were pending. There has been criticism by public interest groups for lack of rigor in this program. There is a whole unit that handles that. That section in the law does not mention tribes.

OPP has more business than they have capacity to deal with. Therefore an elaborate priority system is necessary.

There were questions and some discussion about the Endocrine Disruptors program. Because of concerns that human exposure to chemicals may disrupt the endocrine hormone system, EPA must develop an endocrine disruptor screening and testing program to evaluate potential adverse effects.

Regions and Headquarters - Tribal Relationships - Debbie Kovacs and Judy Hervig, U.S. EPA Region 8

The usual day-to-day contact between tribal pesticide program managers and U.S. EPA is with the EPA Regional offices. Region 8 was commended for its Regional Indian Policy and a sign-up list was circulated for those who are interested in having a copy of this policy, but who do not have one. Region 8 was also commended for the good work in integrating those who are knowledgeable and skillful in Indian Law, including treaty rights and the trust responsibility, with those who have field responsibilities with the tribes in developing their programs. It was suggested that this type of policy development and level of skillful integration was needed in other U.S. EPA Regions.

There was discussion about the differences in tribal program development from Region to Region, about the fact that each Region is organized differently and that it's a good idea to understand how the EPA Regional Office in your Region is organized. There is considerable discretion in the Regions as to priorities and as to some of the funding.

Overview of U.S. EPA Office of Enforcement and Compliance Assistance/Tribal Relationships - Jack Neylan, Planning Branch Chief, OECA/Enforcement Planning, Targeting, and Data Division

Mr. Neylan was unable to attend because of the severe weather. His address is:

John J. Neylan III, Chief, Planning Branch {222A}
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Washington, D.C. 20460
Tel. (202) 564-5033, Fax (202) 564-0034; Email: neylvan.john@epamail.epa.gov

The primary website for OECA's National Environmental Training Institute (NETI) is: http://es.epa.gov/oeca/oceft/neti.html

Tribal Caucus

The TPPC went into a closed Tribal Caucus session. It was agreed that the group would work by consensus, without voting per se, but that polling could be used to determine the consensus of the group if and when it was not clearly emerging. Topics covered during this caucus included: Determination of the start date for term limits, Discussion and Confirmation of the Executive Committee and Chairperson, Discussion and Confirmation of the Proposed Rules and Procedures, establishing the process for Appointing TPPC Representatives to other committees who are asking for tribal representatives, such as the Spray Drift Coalition, and establishing the process for defining and activating Working Groups. There was lengthy discussion and some strong disagreement about who appropriately participates and who votes in the TPPC. There was discussion about a perceived imbalance in the group in terms of numbers of representatives from Region 9. It was recognized that there are a large number of small tribes in California, and that California is a very big state for agriculture. There was concern that there is little or no participation from tribes or Indian nations in Regions 2 and 4. There was discussion about the requirement that TPPC representatives present a letter of authorization from their tribe or tribal organization in order to participate.

Spray Drift Coalition

The group nominated Kelly Mills of Fort Mojave as its representative to the Spray Drift Coalition, with John Swenson of Cocopah to serve as alternate. It is U.S. EPA's position that the TPPC can consider nominating representatives to any Advisory Committee that they have: the TPPC can nominate, the Agency will make the final decisions.

Other committees that may need tribal representation include: Certification & Training Activities Group (CTAG), Pesticide Program Dialogue Committee, and the Tolerance Reassessment Advisory Committee (TRAC).

Ultimately the consensus was:

  1. that the start date for term limits of representatives would run from the date of the start of this first meeting, i.e., January 25, 2000
  2. to accept the current Executive Committee and Chairperson.
  3. to accept the current composition of the group as containing both tribes and tribal organizations
  4. to accept the current Proposed Rules and Procedures and to "live by them", although it was strongly urged that those Rules and Procedures appeared to some to be cumbersome and bureaucratic, and that they should be examined to see if they could not be made more easily understood, less complex, and less bureaucratic. Hopi recommended that it does need to be made clear in the wording of the document that this is not an exclusionary group in any sense and that the only reason for a limitation of 30 representatives is the limit of the amount of funding available to pay for representative's travel. That point will be clarified. The Council welcomes continuing comments and suggestions on efforts to "reinvent" the policies and procedures, starting with feedback from Pala Band of Mission Indians. It was emphasized that the Rules and Procedures is a "living document" and participants need time to study and think on it. Some new participants had not had a chance to read it.
  5. to accept that the group will generally be inclusive, that it will include both tribes and tribal organizations, and diversity of points of view in the group will be encouraged. It was agreed that the Council intends to be very focused, to be a technical and policy resource on pesticide program development, and pesticide issues and concerns, and will refer tribes and tribal organizations with other issues and concerns to other groups and organizations.
  6. to continue the requirement that participants in the Council must submit a letter of authorization from their tribe or tribal organization. Some dissent continued on this issue. The Executive Committee felt that an authorizing letter for each representative was important to the credibility of the group as a whole. A packet was provided to the group with a short explanation of why the Council is requiring an authorization letter and a sample of the kind of letter we are requiring. There was considerable discussion about why such a requirement can be complicated. Tribes must be advised, for example, that they are not making financial or other commitments that they are not prepared to make by the issuance of such a letter. Secondly, many tribes have a requirement that the position of the tribe on an issue may not be authorized except by tribal council resolution.

Federal Inspector Credentials Discussion

A Federal Inspector Credentials Discussion led by Jonathan Binder (and possibly others from U.S. EPA) was scheduled, but no one was able to attend due to the severe weather. There was group discussion about the importance of this issue, and the existence of some confusion regarding what is required for obtaining Inspector Credentials, and what kind of training would be available to help people meet the requirements. It was pointed out that it was perceived in Indian Country that there was a dual standard in the past and serious inequities existed with regard to obtaining these credentials, and even to obtaining information about how to get the credentials - with tribal inspectors being required to meet much more rigorous criteria and "jump through more hoops" than state inspectors. Clearly the same standards should be applied to all, and hopefully now they will be. There was discussion as to why a tribal inspector would need or want a Federal Credential. Eleven of the Council Members in the room already have federal credentials, and eight said they were interested in obtaining them. About four indicated that they do not have them but do not want them.

FIFRA Sections 18 and 24(c)

No one from U.S. EPA Office of General Counsel was able to attend due to the severe weather. Kennan Garvey was in attendance and was able to give the group an overview of FIRA Sections 18 and 24(c) and Elizabeth Resek was in

attendance and was able to explain to the group that the primary difficulty in permitting tribes to exercise authority under Sections 18 and 24(c) is that tribes are not mentioned specifically in those sections of FIFRA.

Several participants commented that this is a debilitating situation and that their tribe could suffer economic damages as a result of not being permitted to utilize Sections 18 and 24(c). They want to be able to protect their farmers and growers livelihoods. One tribal participant commented that when states get these emergency exemptions there is a threat that the state exemptions "rolls over" into Indian Country which is a clear violation of tribal sovereignty. There was a suggestion that a tribe may have to sue U.S. EPA if great damage to their agricultural base occurs because U.S. EPA has not taken due diligence steps to engage in rule-making or whatever is necessary to cure this problem. It was suggested that this is a violation of the trust responsibility and a blow to tribal sovereignty.

It was pointed out that tribes have been exercising authority under FIFRA for over 20 years, the very first U.S. EPA authorization of any environmental program to a tribe was the establishment of the pesticide program at Ft. Berthold, and that tribal pesticide programs are across-the-board the most developed of all tribal environmental programs at this time. It was suggested that USDA may be able to work with tribes to solve this problem. The group expressed some concerns of USDA's dedication to working well with tribes although it was agreed that things have improved considerably in recent years. A Working Group formed to continue pursuing this issue.

Announcements:

Presentation by Dr. Ana Maria Osorio of the Public Health Service Regarding Health Concerns and Tribal Communities' Pesticide Exposure

Dr. Osorio is on leave to U.S. EPA to work on educating health professionals and para-professionals in the detection and management of pesticide poisoning. She is interested in developing projects on Medical outreach to Health Advisors and Personnel in two to three tribal communities. She advised the group that there is no national registry of pesticide poisoning; there are six states that actively have registries. Children under 5 are clearly at high risk from pesticide poisoning. There is a great deal of misinformation and lack of information within the medical community. Dr. Osorio is interested in teaching a more holistic approach to diagnosis that includes the patient's relationship with the environment and adequately addresses exposure history and occupational and environmental hazards. The training would be offered to doctors, nurses, emergency technicians. There were a number of comments on the need for tribes to initiate and be in the driver's seat where research is being conducted, on problems with Indian Health Service, and on the need to include tribal clinics and community health representatives (paraprofessionals) within tribes.

Several participants had specific concerns re health impacts on tribal individuals or communities and Dr. Osorio agreed to speak with them further. Regina Langton will be coordinating with Dr. Osorio on this effort.

Among their concerns are how best to select the sites. They are interested in sites that reflect varied circumstances. They advised that medical people will select the sites. It was suggested that they send a letter to the NTEC Executive Board. It was urged that any studies involving native communities should include the native community as an equal partner at the table.

Dr. Osorio's direct line is (703) 305-7891; her fax number is (703) 305-2962; her Email is: osorio.anamaria@epa.gov

It was recommended that all TPPC members should have a copy of the paperback book: Recognition and Management of Pesticide Poisoning (5th edition), EPA-735-R-98-003, March 1999. A sign-up sheet was provided for anyone present who wants a copy. Contact: Regina Langton

Discussion of Training and Technical Assistance Needs of Tribes and Possible Solutions

There was considerable discussion about tribal training needs. It is intended to provide training as some part of the next meeting of the full TPPC. It appeared that the primary needs are in case development and enforcement (regardless of who does the actual enforcement - the tribes or the federal government), with concerns also expressed about the need for training tribal courts. There was discussion of the likelihood of very different training needs from Region to Region and that it might be a good idea to look at what has been happening by Region.

There was some criticism of training that has been provided as not all that helpful (in a general way), not well-focused as to what is effective on tribal lands, and problems with issues like filling out the federal forms. Two people expressed a concern that legal issues permeate all tribal efforts to develop their programs and that everyone involved (including people who are planning and presenting training) need better understanding in that regard. There was a request for training in personal protection (health and safety issues). The desire of tribal inspectors and managers to operate in a top-notch professional manner was repeatedly stressed. Although there was lengthy discussion about training in "building a pesticide program", it appeared that most of the participants already had a program or did not really feel that they wanted or needed to build a program and so they did not agree that that kind of training was a priority. The need for training on anti-microbials was recommended. Difficulty in obtaining funding for travel and for participation in training when it was offered was mentioned several times.

There was discussion of need for improvement in hiring Native Americans within U.S. EPA, and particularly that tribal liaison positions be filled with Native Americans. It was noted that at the present time there is a hiring freeze.

The Partnership for Food Safety Education was interested in providing information to tribal representatives, but was not able to do so due to time constraints on the TPPC agenda and the severe weather. Contact for that group is Hopkins.Yvette@epamail.epa.gov and fightbac@mindspring.com. Their web site is: www.fightbac.org/store/Exit EPA Disclaimer

Tribal Caucus

Once again, the Tribal Caucus was a closed meeting. There was continuing discussion regarding the items discussed on Day One. There were comments regarding the efficacy of different U.S. EPA Regions in working with tribes. Some felt this could be judged by assessing how well the tribes in each Region are doing in developing pesticide plans and programs. Others noted that some Regions have many tribes and others only a few, so they are not comparable.

Working Groups and Issue Papers

The TPPC needs to take care to understand the difference between Working Groups that are trying to resolve internal TPPC issues (which may informally come together at any time, as needed) and Working Groups that are designed to produce Issue Papers.

Anyone can voluntarily develop and write an Issue Paper. However, if a Working Group wants funding from the TPPC budget (for conference calls, copying, and such) it will have to be formally approved by the TPPC Executive Committee in writing.

If an Issue Paper (from any source) is presented to the TPPC there will be time set aside on the TPPC agenda to discuss it. There will then need to be a consensus opinion from the TPPC as to whether to (a) continue to develop the issue further; (b) just file it {it's not a priority}; or (c) give the issue paper to OPP. If a paper is given to OPP they must respond to it at some point. The TPPC Coordinator will maintain a docket of Issue Papers presented, and any action taken on them. OPP will be expected to report back to the TPPC 2 times a year on the status and progress of any issue raised formally in this way.

Working Groups/Issue Papers

Four Working Groups formed. At this point two of them could be described as internal working groups insofar as they are working on issues of feedback and comment with EPA (Tribal Strategy and Resource Guide). The third group, Subsistence, has presented a short draft Issue Paper, authored by the California Indian Basketweavers Association expressing concerns about Subsistence Issues and the Risk Assessment process and wants input on their draft. The fourth group (FIFRA sections 18 and 24(c)) will be developing a paper.

  1. EPA Tribal Strategy - The American Indian Environmental Office and the Tribal Operations Committee are working with EPA in developing strategies. There is a necessary tie-in to the Government Performance and Results Act. Clement Martinez (Gila River), Elaine Wilson (ITCA), Fred Corey (Aroostook Band of Micmac), Greg Mojado (Pala Band of Mission Indians) volunteered to be on this TPPC Working Group. They will share a draft of the strategy document and provide input and comment.
  2. Resource Guide for Tribes - Regina Langton is working on putting this compendium together for the tribes. Rebecca Davidson (Delaware Tribe of Western Oklahoma), Clement Martinez (Gila River), and LaVerne Garnenez (Navajo Nation) volunteered for this Working Group, to review, make comments and perhaps additions to this Guide. One suggestion was that it include a section on funding sources for tribes, and it was agreed to add that.
  3. Subsistence - Micah Lomaomvaya (Hopi Tribe), Chuck Striplen (California Indian Basketweavers Association), Jeff Biakeddy (Navajo Nation), Carl Etsitty (Navajo scientist/works for EPA), and Rebecca Davidson (Delaware Tribe of Western Oklahoma) are on this Working Group.
  4. FIFRA sections 18 and 24(c) - A conference call was suggested on this topic, with participation by the Office of General Counsel. This Working Group consists of Kelly Mills (Ft. Mojave), Elaine Wilson, Chuck Striplen, Micah Lomaomvaya, Henry Ghiotto, Greg Mojado, LaVerne Garnenez, Jeremy Phillips, Jeff Biakeddy, Kendra Tso, Jeffrey Harper, Eric Gjevre, Elaine Wilson, Fred Gonzales, Clement Martinez, Ed Snetsinger, and Fred Corey.

A Working Group on Federal Inspector Credentials and Training was suggested, but one has not formed yet.

An issue regarding pesticide contamination of cultural and religious items that are being repatriated under the Native American Graves Protection and Repatriation Act ( NAGPRA) was raised and briefly discussed by the Hopi Tribe. It is anticipated that a group will form around that concern. A great deal more information and leadership is needed on those issues.

Planning for the Next TPPC Meeting

It was recommended that the next meeting be held in early fall (perhaps September). It was generally agreed that June-July-August are very busy and difficult times to consider a meeting and should be avoided. The recommended choices for place of the next meeting are (1) at Yakama Nation - in the state of Washington; or (2) in Oklahoma. A letter from the TPPC Executive Council should be prepared and addressed to the Chairperson/Tribal Council at Yakama to find out if we would be welcome to meet there and if the group could be accommodated for lodging and meeting space in that area. If the group is for any reason not welcome there, or cannot be accommodated there, then the next choice would be the Oklahoma area and that would be pursued further. It is also suggested that at times the TPPC meeting can be scheduled to "tailgate" on to other scheduled meetings so as to minimize travel costs as much as possible.

Other Items of Interest

The Executive Committee plans to meet at the National Tribal Environmental Council (NTEC) Conference in April at Foxwoods. NTEC sends their best wishes, and they are supporting our efforts. The Council emphasized its intent to work cooperatively and collaboratively with the Tribal Operations Committee, the Regional Tribal Operations Committees, NTEC, NCAI, and any other tribal organizations that have an interest in or concern about pesticides.

Council Members

Stuart Redwing of Santee Sioux wishes to remain an alternate for Region 7, with Aynsley Griffin taking the seat as the primary representative since the departure of Wyatt Eaglefeather.

Kelly Mills will be the primary representative in Region 9, with Jeremy Phillips as alternate.

Keith Manwell will be the primary representative in Region 6, with Rebecca Davidson as alternate.

A video from the California Indian Basketweavers Association was available, and may be borrowed from the TPPC. Contact Lillian Wilmore if you want to borrow it.

A video from the Gila River Indian Community which depicted a pesticide safety education program for children was available. Contact Clement Martinez if you want more information about this video.

Financial Report

A financial report showing income and expenses and bills to be paid on the grant through 1/24/2000 was presented to all Council Members by the TPPC Coordinator.

The meeting closed with a blessing by Ansley Griffin, Sr. of the Omaha Tribe of Nebraska.

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