Tribal governments may be responsible for constructing and maintaining roads, buildings, bridges, tunnels, treatment plants, and landfills, as well as for renovating and demolishing buildings. Construction and maintenance activities, which typically involve planning, coordination, and oversight by the tribal government, are essential to the infrastructure for transportation, administration, public services and housing. Because many roadways, waterways and easements cross from reservation land to federal, state, and local land, tribes have also entered into intergovernmental agreements that allocate responsibility for construction and maintenance.
Fundamental Environmental Issues of Construction Management
It is important for tribes to engage in a dialogue with all parties involved in a construction project to ensure that the applicable environmental requirements are met. EPA's Managing Your Environmental Responsibilities: A Planning Guide for Construction and Development (MYER Guide) (PDF) (255 pp, 2.3MB, About PDF) provides a list of questions to help owners and contractors assign who is responsible for ensuring compliance with federal environmental regulations. The MYER Guide also contains self-audit checklists that will help tribes and construction companies evaluate their compliance status once a project is commenced. Finally, the MYER Guide can be used to facilitate compliance at the pre-bid, pre-construction, and construction phases of a project.
Key issues discussed in the MYER Guide are:
- Stormwater permits
- Dredge and fill wetlands (CWA Section 404) permit requirements
- Oil spill prevention requirements
- Hazardous and non-hazardous solid waste requirements
- Hazardous substances (Superfund liability) requirements
- Polychlorinated Biphenyl (PCB) waste requirements
- Air quality requirements
- Asbestos requirements
- Endangered Species Act (ESA) requirements
When planning and designing a construction project, tribes should consider applying "green design" principles and apply an environmental management system (EMS). That is, the tribal government should evaluate the environmental aspects and impacts of the project and establish procedures to minimize the impacts. EPA's EMS Web site provides comprehensive information about processes and practices. Green design resources are available at EPA's Green Building Web site, the Homes Across America Web site, and the U.S. Green Building Council Web site.
In many cases, tribal governments hire contractors to assist or manage some operations, such as construction operations, tank monitoring or well sampling, solid waste disposal, or vehicle maintenance. Tribal governments should include reporting or monitoring methods directly in contract agreements to ensure that contractor operations comply with all federal and tribal regulations.
It is important to note that administrative activities can also affect the severity of environmental impacts, as well as the relevant regulatory burdens, related to the construction and maintenance of tribal government facilities and housing units.
Land Use Planning and Zoning
Tribal governments use land use planning and community development planning to determine the uses of their land. Once a tribe makes a zoning decision the land cannot be used for another purpose unless it is first rezoned by the tribal government.
Land use planning and zoning activities do not themselves create environmental effects. Rather, it is the results of these activities - the actual land use - that cause environmental impacts. Land use choices often determine whether natural resources are enhanced, conserved or depleted. Land used for residential, commercial, or industrial purposes can affect air, land, and water resources. Of course, abandoned sites that are restored can revitalize an area and reduce environmental risks as the site is cleaned up. By carefully considering the environmental impacts prior to making zoning decisions, the tribal government can either prepare for the impact of those decisions (i.e., concurrently construct stormwater catch basins while allowing construction of a new parking lot) or make adjustments to ensure adequate protections are in place.
National Environmental Planning Act Process and Inter-Governmental Coordination
Tribal governments may also directly coordinate their efforts with EPA and other federal agencies in order to comply with federal statutes and regulations. When federal dollars are used to build on tribal trust lands or a federal permit is required for the project, the federal agency providing the funds or permit may need to assess the potential environmental impacts of the proposed project under the National Environmental Policy Act (NEPA). Using the agency's NEPA implementing regulations, the responsible federal agency generally may ask the tribe to cooperate in this process and, if more than one agency is providing the funds or another agency needs to issue a permit, the other agencies may also be asked to cooperate with the NEPA assessment process. An environmental impact statement may be required in order to assess project impacts that significantly affect the quality of the human environment.
The NEPA assessment, which may be necessary when a tribal government's construction project uses federal funds or requires a federal permit, may involve such issues as water quality or quantity, wetlands, air quality, land use, threatened or endangered species, potential impacts to sacred sites and items of cultural patrimony, and traditional hunting, fishing, and gathering rights. The NEPA process includes consideration of the applicability of other environmental laws and federal executive orders so that, as appropriate, they are incorporated into the NEPA review process as early as possible. Examples of applicable laws may include the ESA, the National Historic Preservation Act (NHPA), and the National Native American Graves Protection and Repatriation Act (National NAGPRA).
For certain construction projects, impacts on receiving waters may be regulated under the CWA and may require the tribal government to obtain a permit for certain discharges which may include controls on discharge quantities or other control measures, including stormwater runoff controls. Air and noise impacts may be regulated under the CAA. The above impacts may also be regulated by tribal laws.
In the case of land use, tribes are generally exempt from state and local regulatory authority for lands owned in trust. However, tribes often make efforts to meet with the planning and zoning boards of surrounding state and local jurisdictions. This enables tribal planners to ensure that the tribe will meet its needs, while simultaneously taking into account the objectives of the surrounding jurisdictions. Tribal government coordination with state and local governments may also be necessary if construction and maintenance activities affect their respective interests and responsibilities.
Stormwater - Application to Construction Activities
Stormwater runoff from construction activities can significantly impact water quality. As stormwater flows over a construction site, it picks up sediment, debris, chemicals, and other pollutants. Polluted stormwater runoff can harm or kill fish and other wildlife and impact drinking water sources. Sedimentation can destroy aquatic habitat and high volumes of runoff can cause stream bank erosion.
The NPDES Stormwater program requires operators of construction sites one acre or larger (including smaller sites that are part of a larger common plan of development) to obtain authorization to discharge stormwater under a NPDES construction stormwater permit. Tribal governments must apply for a construction stormwater permit if they meet either of the two parts of the stormwater regulation definition of "operator." This means a tribal government should apply for permit coverage if the tribal government has operational control over either:
- The construction plans and specifications, including the ability to make modifications to those plans and specifications (e.g., owner or developer of project)
- Day-to-day operational control of those activities at a project which are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit conditions (e.g., general contractor)
The development and implementation of stormwater pollution prevention plans is the focus of NPDES stormwater permits for regulated construction activities.
EPA remains the permitting authority for most land in Indian country. For construction (and other land disturbing activities) in areas where EPA is the permitting authority, operators must meet the applicable requirements of the national EPA Construction General Permit (CGP); tribes in EPA Region 4 are covered by a region-specific construction permit. The CGP outlines a set of provisions construction operators must follow in order to comply with the applicable requirements of the NPDES stormwater regulations. The CGP covers any site one acre and above, including smaller sites that are part of a larger common plan of development or sale, and replaces and updates previous EPA permits. Tribes with questions about stormwater requirements or permits may contact the Notice of Intent Processing Center at (866) 352-7755 for questions about filing by mail. Easy and fast online filing is available at the NPDES Electronic Stormwater Notice of Intent (eNOI) Web site.
Buildings and Construction
Tribal government activities related to buildings include constructing new schools, public housing, administrative facilities, and other government buildings, maintaining and repairing those buildings, renovating old buildings, and demolishing unusable buildings. Because these activities could affect the environment, they may be subject to environmental laws and regulations, as indicated in the following list:
- New construction - CWA, ESA, Rivers and Harbors Act, CAA, and NEPA
- Maintenance and repair - CWA, RCRA, CAA, EPCRA, CERCLA, TSCA, FIFRA, and the Safe Drinking Water Act (SDWA)
- Renovation and demolition - RCRA, CAA, and TSCA
Go to the Economic Benefits of Green Building section to learn more.
The construction of new buildings involves several activities, including clearing land, building the structure, and disposing of construction materials.
Clearing Land for Construction. Clearing land entails the removal of vegetation and existing structures to prepare a site for construction. Clearing land can impact the environment by:
- Making it more susceptible to erosion, landslides, or floods
- Harming aquatic resources (particularly wetlands) and endangered species
- Increasing the flow to storm sewer systems, leading to increased potential for downstream flooding and increased stream bank erosion in receiving waters
Stormwater runoff (which may contain sediment and construction waste) from new building construction has the potential to contaminate surface waters and must be controlled under the requirements of the NPDES stormwater program. Generally, most of the waste generated through building construction activities is non-hazardous solid waste. The disposal of these wastes may be regulated under a variety of federal and tribal laws. Hazardous construction wastes are regulated under the federal RCRA hazardous waste regulations.
Additional impacts of construction activities include dust and odors from construction traffic, air emissions, noise, and vibrations from construction equipment.
New construction may directly affect wetlands if fill material is dumped in them. Sediment from construction sites may also negatively affect the hydrologic capacity of wetlands. Wetland losses may increase downstream flooding and may impact a wide variety of aquatic and upland species. If new construction could potentially impact aquatic areas, such as wetlands, tribal governments may need to obtain a permit before beginning a construction project. The U.S. Army Corps of Engineers (Corps) regulates any dredging and general construction in, over, and under navigable waters of the United States, under Section 10 of the Rivers and Harbors Act . The Corps also regulates the discharge of dredged and fill material into waters of the United States, which include wetlands. The discharge of dredge and fill material into wetlands is regulated under Section 404 of the CWA and may require a permit. In addition, controlling construction site discharges (particularly stormwater runoff) is regulated under the stormwater provisions of EPA's NPDES permitting program, as well as local erosion and sediment control programs.
Endangered Species Act
The ESA provides protection for federally listed, threatened, and endangered species of plants, animals, and their habitats.
Tribal governments may need to directly coordinate construction issues with EPA and other federal agencies in order to comply with federal statutes and regulations, including ESA and NEPA.
Construction Waste Disposal
Most of the waste generated through construction activities is non-hazardous solid waste. Typical wastes generated at construction sites include concrete, steel, wood, rubber, asphalt, soil, and organic matter (i.e., tree stumps). The disposal of these wastes may be regulated under a variety of federal and tribal laws. Hazardous construction wastes are regulated under the federal RCRA hazardous waste regulations. Some tribal governments have regulations regarding the disposal of non-hazardous construction and demolition debris at special construction waste landfills. These tribes may allow debris, such as uncontaminated concrete and asphalt, to be used as fill material.
Much non-hazardous construction and demolition materials from new construction (as well as renovation of roads, bridges, and buildings) can be recovered and recycled. EPA's Construction and Demolition (C&D) Debris Web site provides more information.
Operations, Maintenance and Repair
Tribal governments may be responsible for activities related to the operation, maintenance, and repair of buildings, including addressing indoor air quality issues, operating boilers and cooling systems, applying pesticides.
Indoor Air Quality-Lead Paint
The use of lead-based paint was banned in 1978; however, lead-based paint is still found in many older buildings and homes. When doors and windows are opened and closed, or painted stairs are walked upon, small amounts of lead paint dust can be released and then settle on room surfaces. Young children are particularly susceptible to the health effects of lead poisoning and pregnant women poisoned by lead can transfer lead to a developing fetus, resulting in adverse developmental effects. Since dust is continually released, damp mopping and dusting can help reduce dust accumulation and facilitate removal. Doors, windows, stairs, and other surfaces with lead-based paint that chip create more obvious problems. Vacuuming an area can remove lead-based paint chips but can also distribute lead dust unless a high efficiency particle accumulator (HEPA) vacuum is used. Lead dust may also be present in the soil around buildings or houses. Routine maintenance of buildings and homes - painting, plumbing or electrical work, or heating duct work, and carpet removal - can also disrupt surfaces painted with lead-based paint. While ground covering can minimize the disruption of the dust, doormats should be provided to wipe the dust in soil from shoes. These are "interim controls" that tribal governments can use to help reduce exposures to lead dust.
A number of options exist for tribal governments to address lead-based paint issues. Tribal governments can replace windows, doors, or other surfaces painted with lead-based paint. During maintenance, fugitive dust can be reduced and contained by covering the area with polyethylene plastic sheeting and properly disposing of the sheeting after the work is completed. In addition, the work area should be kept wet or moist to reduce dust. Of course, workers and residents should be notified prior to any work in lead paint areas. Notification will allow residents to stay away from the building while work is conducted. Workers should wear proper personal protective equipment while conducting the work. Lead paint abatement must be conducted by persons trained and certified, and they must follow the specific work practice standards specified in TSCA 402 rules (40 CFR 745.227).
Prior to conducting remodeling or renovation in a building with lead paint, tribal governments should review the EPA brochure entitled Reducing Lead Hazards When Remodeling Your Home (EPA-747-K-91-007), available through the National Lead Information Center ((800) 424-LEAD/5323) and also online from EPA's Office of Pollution Prevention and Toxics (PDF) (26 pp, 936K, About PDF) Web site. Also see the Tribal Compliance Assistance Center's lead paint section.
Indoor Air Quality - Mold
Exposure to mold can cause a variety of health effects and symptoms, including allergies. The key to mold control is moisture control. Fix sources of moisture problems and maintain indoor humidity below 60% relative humidity, ideally 30 to 50%. Mold problems can be hidden behind walls or in air ducts. Mold may require remediation. EPA's Indoor Air Mold Web site provides useful information on mold growth and cleanup options.
Indoor Air Quality - Radon
Over the past 40 to 50 years, exposure to indoor air pollutants (i.e., radon) has increased, in part because of the construction of more tightly sealed buildings, the reduction in ventilation rates (intended to save energy), the use of synthetic building materials and furnishings, and the use of chemically formulated personal care products, pesticides, and housekeeping supplies. Common effects of indoor air quality problems on occupants include headache, fatigue, shortness of breath, sinus congestion, coughing and sneezing, eye, nose, throat, and skin irritation, dizziness, and nausea.
Radon is one particular indoor air pollutant of concern associated with this issue. Radon levels can vary from structure to structure. The average indoor radon level is estimated to be about 1.3 picocuries per liter (pCi/L), and about 0.4 pCi/L of radon is normally detected in the outside air. The United States Congress has set a long-term goal for indoor radon levels to be no more than outdoor levels. While this goal is not yet technologically achievable in all cases, levels in most structures today can be reduced to no more than 2 pCi/L. EPA recommends follow up radon testing or mitigation in buildings with levels of 4 or more pCi/L.
The federal government, as well as most tribal governments, do not have regulations or established enforcement capabilities regarding indoor air quality in buildings, including schools. Accordingly, at this time, tribal governments are not required to enforce any federal standards for acceptable radon levels in commercial or residential buildings, including schools. However, tribes may pass regulations recommending radon mitigation to owners of buildings. Additionally, for some schools, financial or technical assistance may be available from EPA, BIA, and OSHA.
Tribal governments operate boilers to produce steam or electricity to heat government buildings or other buildings on the reservation, including casinos. Boiler operations include storing fuels and boiler chemicals, operating the boiler, maintaining the boiler, and disposing of residuals from fuel burning. Storing fuels and chemicals can affect the environment through spills that have the potential to reach groundwater or surface waters. Operating boilers may impact the environment through air emissions from fuel burning. Coal ash from fuel burning can contaminate waterways if it contains heavy metals or other toxics and is not disposed of in a manner that prevents it from coming in contact with waterways or rain water.
The storage of liquid boiler fuel (e.g., heating oil) may be regulated under the Spill Prevention, Control, and Countermeasures (SPCC) program of the CWA, which requires the preparation and implementation of SPCC Plans to ensure that containment and other countermeasures are in place to prevent oil spills that could reach navigable waters. In this context, SPPC Plans are required for facilities with an aggregate aboveground storage capacity greater than 1,320 gallons or a completely buried storage capacity greater than 42,000 gallons. The storage of chemicals may be regulated under EPCRA or Section 112(r) of the CAA (risk management plans), which requires the development of emergency plans and reporting based on the quantity of chemicals stored.
Coal combustion byproducts (CCBs) may be either disposed of or put to beneficial use. When considered as a waste, CCBs are exempt from federal regulation as hazardous waste. Significant environmental benefits may be derived from the beneficial use of CCBs, particularly in the use of coal fly ash as a substitute for cement in the manufacture of concrete. There are many other beneficial uses for coal combustion products, including wallboard, road base, embankments, flowable fill, structural fill, snow and ice removal, and paint. EPA's Coal Combustion Products Partnership Web site provides more information. Air emissions from the boiler may be regulated under the CAA, which may require the tribal government to obtain a permit and meet emissions standards depending on the heat output of the boiler and date of boiler construction.
Tribal governments operate cooling systems to maintain temperature and to store food in government buildings. Cooling systems contain refrigerants, such as chlorofluorocarbons (CFCs) or ammonia. If released, CFCs harm the environment by depleting the stratospheric ozone layer. The CAA requires maintenance of cooling systems to be conducted by certified personnel who are using certified equipment and following specified guidelines for reclaiming CFCs. The storage and use of ammonia may require reporting under EPCRA or CAA Section 112(r).
With proper design, landscapes can add value to the local environment. During the design phase, careful consideration should be given to plant selection. For example, native plants can reduce the need for extensive pesticides and watering because they are locally adjusted to the pests and climactic conditions of the region. Landscaping during construction can reduce polluted runoff from construction sites. By installing vegetative buffers along water bodies and seeding dirt piles, construction runoff into lakes and streams is greatly reduced. Proper maintenance calls for reduced levels of pesticides and fertilizers and appropriate irrigation. Toxic quantities of chemicals from pesticides and fertilizers can seep into groundwater and leaching into waterways. Overuse of these chemicals is often complicated by over watering. Best management practices should be consulted for proper application of pesticides and fertilizers and strategies for efficient water use. EPA's GreenScapes Web site provides more information.
Building maintenance may entail the application of pesticides to eliminate unwanted pests, such as insects, rodents, and weeds. Frequently used pesticides include herbicides, insecticides, fungicides, and rodenticides. Pesticides are also used in landscaping for aesthetic purposes. Improper pesticide application can harm human health, causing respiratory and skin infections, and even death. In addition, improper pesticide application can destroy flora and fauna, and contaminate groundwater and surface water supplies through infiltration and runoff.
Renovation and Demolition
The renovation and demolition of buildings can impact the environment as materials trapped within the building structure are released to the environment. For example, the removal and disposal of asbestos and lead paint can significantly affect both human health and the environment. Renovation and demolition can also produce a large and varied waste stream - Construction and Demolition (C&D) debris - that includes concrete, asphalt, wood, drywall (sheetrock, gypsum, or plaster), and asphalt shingles. C&D debris is also generated during construction of roads and other public works projects.
Buildings owned by tribal governments may contain asbestos or asbestos-containing materials (ACM). Buildings constructed in the 1960s are more likely to have asbestos-containing sprayed- or troweled-on friable (asbestos that can be reduced to dust by hand pressure) materials than other buildings. EPA banned the use of asbestos-containing materials in the 1970s.
Used for insulation and as a fire retardant, asbestos and ACMs are still found in a variety of building construction materials, including pipe and furnace insulation materials, asbestos shingles, millboard, textured painted and other coating materials, and floor tiles. When undamaged asbestos is encapsulated (sealed with coating materials), asbestos fibers do not adversely affect impact human health or the environment. During renovation or demolition, however, asbestos fibers may be released. If inhaled or ingested, these fibers can cause respiratory damage.
Asbestos is recognized as a major environmental/public health concern to schools. If a tribal government owns or operates a school building constructed or insulated with asbestos, particularly if renovations or demolitions occur that release fibers, then indoor air quality can be impaired and people can suffer severe respiratory and other health problems.
Under the Asbestos Hazard Emergency Response Act (AHERA), EPA established a comprehensive regulatory framework, within which tribal governments would inspect, manage, plan, and conduct operations and maintenance (O&M) activities and appropriate abatement responses, in order to control ACM in schools. This framework also applies to BIA and other school operators.
Some tribal governments are in the process of developing comprehensive asbestos management/ control programs and/or abatement contractor certification programs. In addition, EPA's National Emission Standard for Hazardous Air Pollutants (NESHAP) for asbestos regulates asbestos emissions during building demolition or renovation and the transport and disposal of asbestos waste. School building owners - tribes, BIA, and others - are supposed to inspect school buildings for friable and nonfriable asbestos materials. Inspection activities include reviewing building records, inspecting and sampling materials, and mapping the locations of confirmed or suspected asbestos.
Lead-based paint is typically found on the interiors and exteriors of buildings constructed prior to 1978. During renovation and demolition, paint removal has the potential to impact human health and the environment as fibers, dust, and paint chips are released. Paint chips and dust can cause indoor air contamination during renovation, and soil contamination from demolition or improper disposal. Assessment of lead-based paint hazards and removal of lead-based paint is regulated under TSCA. Disposal of building materials contaminated by lead-based paint is regulated under RCRA.
Demolition of buildings can cause significant levels of fugitive lead dust emissions. It is therefore very important to control and minimize airborne lead dust during building demolition. Suggestions on reducing lead hazards from demolition activities can be found in the EPA brochure entitled Reducing Lead Hazards When Remodeling Your Home (PDF) (26 pp, 932K, About PDF), available through the National Lead Information Center at (800)424-LEAD/5323. Tribal governments should contact EPA to discuss how to dispose of lead wastes, such as painted wallboard, doors and doorframes, windows, and similar materials.
Tribal governments that are uncertain about lead hazards in tribal houses or buildings, including decommissioned military housing, should contact the Office of Lead Hazard Control in the Department of Housing and Urban Development (HUD) at 888-LEADLIST ((888) 532-3547). HUD can provide tribal governments with a list of trained lead inspectors who can help determine the presence and extent of lead.
Construction and Demolition Debris
Municipal solid waste landfills are subject to EPA landfill criteria, while tribal governments mostly regulate C&D landfills. EPA's RCRA regulations (i.e., the Conditionally Exempt Small Quantity Generators Rule (CESQGs), June 1996), however, do prohibit hazardous waste from being dumped in C&D landfills unless those landfills meet certain standards. As indicated above, building materials containing lead and asbestos are also regulated by EPA.
C&D debris is not federally regulated, except to the extent that solid waste landfills must follow a few basic standards outlined in RCRA Subtitle D and 40 CFR Part 257. Tribes, therefore, have the primary role in defining and regulating the management of C&D debris in Indian country. Depending on a tribe's specific definition, C&D debris can include the following discarded materials:
- Concrete, cinder blocks, drywall (sheetrock gypsum, or plaster), masonry, asphalt and wood shingles, slate, and plaster
- Forming and framing lumber
- Steel, stainless steel, pipes, rebar, flashing, aluminum, copper, and brass, residential and commercial steel framing, structural steel, steel utility poles
- Brick and decorative blocks
- Doors and windows
- Plumbing fixtures
- Electrical wiring
- Non-asbestos insulation
- Wood, sawdust, brush, trees, stumps, earth, fill, and rock and granular materials
Much non-hazardous construction and demolition materials can be recovered and recycled. EPA's C&D Debris Web site provides more information.
C&D debris that meets the legal definition of hazardous waste is required to be treated and/or disposed of in a manner consistent with the federal requirements for hazardous waste and any other tribal waste requirements. Examples of hazardous waste in C&D debris wastes can include:
- Waste paints, varnish, solvents, sealers, thinners, resins, roofing cement, adhesives, machinery lubricants, and caulk
- Drums and containers that once contained the items listed above
- Treated wood, including lumber, posts, ties, or decks, and utility poles
- Asbestos-containing items, such as certain older types of floor tile, insulation, or other materials containing asbestos
- Lead-based paint, or lead flashing or solder
- Products containing mercury
- Other items that have inseparable hazardous constituents
Most construction, demolition, and renovation companies - regardless of ownership - are considered CESQGs. CESQGs must comply with three basic federal waste management requirements to remain exempt from the full hazardous waste regulations that apply to generators of larger quantities of hazardous waste (Small Quantity Generators (SQGs) and LQGs)):
- Identify all hazardous waste generated on site. The relevant test procedures are described in an EPA document, Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods, SW-846 . Tribal environmental departments can also use their knowledge of the waste to identify hazardous waste; for example, you might know that the spent solvent you are disposing of is an ignitable hazardous waste, and therefore, you would not have to test for the solvent's flashpoint
- Do not store more than 2,200 lbs (1,000 kg) of hazardous waste on site at any time
- Ensure delivery of your hazardous waste to an offsite treatment or disposal facility that is:
- A federally regulated hazardous waste management treatment, storage, or disposal facility
- A facility permitted, licensed, or registered by EPA or a state to manage municipal or industrial solid waste
- A facility that uses, reuses, or legitimately recycles the waste (or treats the waste prior to use, reuse, or recycling). A "universal waste" handler or destination facility is subject to the universal waste requirements of 40 CFR Part 273. (Universal wastes include certain batteries, recalled and collected pesticides, mercury-containing thermostats, and mercury-containing fluorescent bulbs).
Tribal government activities related to roads, bridges, and tunnels include planning new construction, maintenance of existing infrastructure, and traffic management. Because these activities could affect the environment, they may be subject to federal environmental laws and regulations, as indicated in the following non-exhaustive list:
- New construction - CWA, ESA, Rivers and Harbors Act, CAA, NEPA, RCRA, NAGPRA, NHPA, Marine Mammals Protection Act (MMPA), and the Migratory Bird Treaty Act (MBTA), among other statutes
- Maintenance and renovation - RCRA, CAA, and CWA
- Traffic maintenance and roads - CAA and CWA, including the general nonpoint stormwater runoff provisions
Tribal governments should also be aware of the potentially applicable federal laws designed to protect worker health and safety, including the Occupational Safety and Health Act. These laws, including the Occupational Safety and Health Act, are implemented by the Occupational Safety and Health Administration (OSHA), within the Department of Health and Human Services.
Construction of new roads, bridges, or tunnels generally involves clearing land, constructing the new structure, and disposing of construction waste.
Maintenance and Renovation
Maintenance and renovation of roads, bridges, or tunnels may include street sweeping, snow removal, removal and disposal of lead-based paint, and maintenance of storm sewers. Aspects of these activities may be regulated under the CAA, CWA, RCRA, and tribal solid waste disposal requirements.
Tribal governments may sweep streets or require others to do so as a condition of a contract, permit, or intergovernmental agreement. Street sweeping involves using mechanical sweepers to remove dirt, grit, and solids from road surfaces. Street sweeping reduces the concentration of pollutants in stormwater runoff and improves street appearance.
Maintenance of Storm Sewers
Tribal governments may be required to maintain storm sewers as a condition in a contract, permit or intergovernmental agreement. Maintenance of storm sewers may include catch basin cleaning, litter removal from storm channels, and maintenance of stormwater detention facilities. Catch basin cleaning and litter removal from channels protect against street flooding and remove potential pollutants from stormwater. Stormwater detention facilities and other pollutant removal structures, such as sand filters and oil and grit separators, also require frequent maintenance. Disposal of materials generated during cleaning may be regulated under tribal solid waste disposal requirements.
To maintain road safety in the winter, tribal governments may apply salt and abrasives (e.g., sand) and remove snow. Heavy applications of salts and abrasives may be necessary at busy intersections and steep hills. These activities can degrade water quality by increasing sedimentation and salinity in surrounding water bodies. If applied frequently or improperly, salt may leach into the groundwater and contaminate drinking water supplies.
To prevent such contamination, snow removal activities may be regulated under a tribal law. The code may require designation of sensitive areas (i.e., near public water supply facilities or locations with high levels of groundwater recharge) where pollution prevention practices must be followed. Some of these practices include prohibiting the dumping of heavily treated snow directly into water bodies or in or around drinking water supplies or landfills, proper operation of salt storage facilities to reduce potential salt-contaminated runoff, and use of alternative de-icing materials (i.e., calcium magnesium acetate).
Removal and Disposal of Lead-Based Paint
Lead-based paint is typically removed from bridges by sandblasting or abrasive blasting prior to refurbishing and repainting. Sandblasting/abrasive blasting removes the existing paint with high velocity sand or synthetic particles. This process could contaminate the air with lead dust, and soil and water during disposal or spills of lead-contaminated sand/abrasive and paint chips. Where possible, blasting should take place in such a way as to contain and or prevent releases of lead-contaminated materials to the environment. RCRA and TSCA regulate the disposal of materials contaminated with lead-based paint. Prevention of lead dust releases may be regulated by the CAA. Lead-based paint also arises in the context of building operations and repair.
Traffic management includes designing roads and bridges, access points, and traffic signals, and it affects the environment by impacting motor vehicle emissions. Increased access points to major roads generally lead to more traffic, while new traffic signals often lead to increase emissions from engine idling.
The Federal Highways Administration (FHWA) within the Department of Transportation and the BIA provide information to tribes developing traffic management plans. When developed, each traffic management plan would conform to a CAA Tribal Implementation Plan (TIP) or Federal Implementation Plan (FIP) applicable to the tribe's reservation. The TIP or FIP will account for the air pollution associated with the tribe's traffic management actions.
FHWA's Transportation Planning Procedures and Guidelines Web site provides guidance for tribes and BIA to use when addressing transportation issues and this document meets the intent of the Federal Lands Highways Program (23 USC 160), the Indian Self-Determination and Education Assistance Act, (25 USC 410), the Roads of the BIA (25 CFR Part 170, and the Indian Reservation Roads Program Stewardship Plan. The document, rather than utilizing predetermined criteria that may not be applicable to tribal needs, provides a basis for developing goals and strategies that will lead to good decision making.
Underground Storage Tanks
An underground storage tank (UST) system is a tank, and any underground piping connected to the tank, that has at least 10 percent of its combined volume underground. The federal UST regulations apply only to UST systems storing either petroleum or certain hazardous substances.
Until the mid-1980s, most USTs were made of bare steel, which is likely to corrode over time and allow UST contents to leak into the environment. Faulty installation or inadequate operating and maintenance procedures also can cause USTs to release their contents into the environment.
The greatest potential hazard from a leaking UST is that petroleum or another hazardous substance can seep into the soil and contaminate groundwater, the source of drinking water for nearly half of all Americans. A leaking UST can present other health and environmental risks, including the potential for fire and explosion.
Subtitle I of RCRA contains technical and financial requirements for USTs storing petroleum or certain hazardous substances. The technical requirements are designed to reduce the chance of releases from USTs, quickly detect releases when they do occur, and cleanup releases promptly. Tribal governments with USTs are required to have:
- Upgraded all USTs to protect against corrosion, spills and overfills
- Replaced outdated USTs with new USTs that have corrosion, spill and overfill protection
- Properly close all USTs by notifying EPA at least 30 days before closure, conducting any necessary site assessment and remedial action, having the tank emptied and cleaned safely, and either removing the tank or leaving it buried but filled with an inactive solid (i.e., sand)
In addition, tribal governments with USTs must demonstrate they are financially capable of cleaning up releases and compensating third parties for resulting damages.
A tribe with a leaking UST is responsible for ensuring that the release is cleaned up, to restore and protect groundwater resources, and to create a safe environment for those who live or work near the site. Cleanup is essential because petroleum releases can contain contaminants like methyl tertiary butyl ether (MTBE) that can make water unsafe or unpleasant to drink. Releases can also result in fire and explosion hazards, as well as cause long-term health effects. Often the specific characteristics of the site (its type of soil, proximity to groundwater) make it a better candidate for a particular type of cleanup method. A contaminated site will need a site characterization (also referred to as a "site assessment") that can help professionals choose the best cleanup method. Professional cleanup contractors base their decisions on site-specific investigations and with local environmental agency approval. In some cases, state or federal regulators take the lead at a contaminated UST site and will make all the cleanup decisions.
For leaking USTs on tribal lands that are not owned by a tribe or that the tribe involuntarily came into possession of, the tribe may be able to receive federal cleanup assistance from EPA. In certain specific cases, EPA may be able to utilize the Leaking Underground Storage Tank Trust Fund for tanks that present a threat to human health and/or the environment. To determine if it is eligible for such assistance, the tribe should contact the EPA Regional underground storage tank people listed on the Tribal Compliance Assistance Center's Contacts page.
Aboveground Storage Tanks
Aboveground storage tanks (AST) are tanks or other containers that are above ground, partially buried, bunkered, or in a subterranean vault. Certain oil-containing ASTs need to meet EPA's Spill Prevention, Control, and Countermeasure (SPCC) requirements (40 CFR Part 112). The SPCC rule applies to non-transportation-related onshore and offshore facilities that could reasonably be expected to discharge oil into navigable waters of the United States or adjoining shorelines. It applies to facilities that have an aboveground oil storage capacity of more than 1,320 gallons. At regulated facilities, SPCC applies to all oil containers with a capacity of 55 gallons or greater. The SPCC rule regulates all types of oil, including petroleum oil, animal fats and vegetable oils, and other non-petroleum oils.
The SPCC rule sets forth requirements for prevention of, preparedness for, and response to oil discharges. To prevent oil from reaching navigable waters of the United States and adjoining shorelines, and to contain discharges of oil, the regulation requires facilities to develop and implement SPCC Plans and establishes procedures, methods, and equipment requirements. A spill contingency plan is required as part of the SPCC Plan if a facility is unable to provide secondary containment (e.g., berms surrounding the oil storage tank). A copy of the entire SPCC Plan must be maintained at the facility if the facility is normally attended for at least four hours per day. Otherwise, the SPCC Plan must be kept at the nearest field office. The SPCC Plan must be available to EPA for on-site review and inspection during normal working hours.
Each SPCC Plan, while unique to the facility it covers, must include certain elements, as outlined in the rule. To ensure that facilities comply with the spill prevention regulations, EPA regional staff may conduct on-site facility inspections. During an inspection, inspectors may ask to review the SPCC Plan and conduct a walk-through inspection of the facility to ensure that the facility has implemented spill prevention and response measures. In addition, EPA may interview facility personnel on the SPCC Plans and their role in implementing it. Additionally, regulated facilities are required to submit certain information to EPA after experiencing two or more discharges (over 42 gallons) of oil in any 12-month period or a single oil discharge of more than 1,000 gallons. These requirements are in addition to discharge notifications required under other regulations.
Tribes with ASTs should keep in mind that oil-containing ASTs can increase the risk of fire and hazards resulting from damage caused by vehicles or vandals. The SPCC rule contains provisions requiring certain security and safety features to avoid vandalism, accidents involving vehicles, and tank overfills. Tribes may additionally seek to regulate ASTs through a combination of construction, installation, operation, and maintenance requirements that are intended to prevent fires and other hazards that stem from mismanaged or substandard ASTs.
Outdoor Recreation Facilities (Including Stadiums and Golf Courses)
Tribal governments construct and maintain outdoor recreation facilities, including swimming pools, playing fields, and stadiums. Because these activities could affect the environment, they may be subject to environmental laws and regulations, as indicated in the following list:
- New construction - CWA, RCRA, ESA, Rivers and Harbors Act, CAA, NEPA, and NAGPRA, NHPA, MMPA, and the MBTA among other statutes
- Maintenance and renovation - CWA, RCRA, EPCRA, CERCLA, CAA, TSCA, and FIFRA
New construction of swimming pools, playing fields, golf courses, and stadiums has many of the same impacts as constructing buildings, roads, bridges, and tunnels. New construction involves clearing and grading land, landscaping, and building the structure.
Facility Maintenance and Renovation
Facility maintenance and renovation are performed on playing fields and golf courses, stadium buildings (including wastewater treatment plants), and swimming pools.
Playing Field and Golf Course Maintenance
Playing field and golf course maintenance may involve numerous activities, including mowing, irrigating (watering), fertilizing, resodding, applying pesticides, applying biosolids, spreading lime, and maintaining vehicles. Tribal governments may conduct each of these activities to keep their playing fields in good condition for their designated use. Mowing is typically done by gasoline-powered mowers that can pollute the air with particulates, volatile organic compounds (VOCs), and noise. While mowing activities are generally exempt from EPA regulations, the engines of the mowers themselves are required to meet federal specifications designed to reduce emissions. EPA's first set of emission standards for small engines typically used in lawn and garden applications took effect in 1997. A second set of more stringent emission standards took effect in 2001 and is currently being phased in through 2007. EPA has estimated that these standards will reduce hydrocarbon emissions from these sources by over 70 percent from unregulated levels.
Activities such as irrigating, fertilizing, and applying pesticides and biosolids may affect the environment through spray drift, infiltration, or runoff, which may contaminate local waterways or cause soil erosion. If playing field irrigation leads to a direct discharge (i.e., water is drained to a pipe that leads to a surface water or a stormwater system), the discharge may be regulated under the NPDES program in the CWA. If the discharge drains to a municipal sewer system, the discharge may be regulated under the pretreatment program in the CWA. Tribes that apply biosolids may establish levels of concentration that are acceptable for application. Tribes that fertilize their playing fields and golf courses with biosolids from a municipal wastewater treatment plant must comply with the biosolids management section of the CWA. Pesticide use, including storage and disposal, is regulated under FIFRA.
Maintaining vehicles and equipment used for playing field and golf course care may be regulated under several environmental laws.
Maintaining Stadium Buildings
Maintenance of stadium buildings includes many of the activities related to maintenance of other buildings that are described in this section. In addition to operating boilers and cooling systems, maintenance of stadium buildings may include operating a wastewater treatment plant during stadium events; operating a large electrical system that includes capacitors and transformers; storing and using cleaning chemicals; sanding and salting, as well as removing snow from stadium parking lots; and managing non-hazardous waste streams, including food wastes.
Stadiums in Indian country are growing in popularity and may accommodate horse and dog racing, concerts, and sports attractions. Larger stadiums may have their own wastewater treatment plants to accommodate a relatively large number of users during stadium events. Operation of a stadium wastewater treatment plant has the potential to affect the environment (air and water) in the same manner as a municipal wastewater treatment plant . Discharges from wastewater treatment plants are regulated under the CWA.
Stadiums that hold evening events often have extensive lighting and public address systems that require capacitors and transformers to assure the necessary electrical current. Stadiums may also have diesel fuel-fired generators for auxiliary power. Capacitors and transformers that contain PCB oils are regulated under TSCA, which may require the labeling of PCB-containing equipment. The storage of oils, as well as spills of PCB oils and oils without PCBs, including diesel fuel, may be regulated under the SPCC provisions of the CWA, depending on the total volume of oil stored at the stadium.
Maintaining stadium parking lots may involve applying salt or sand to lots or removing snow. Each of these activities may be regulated under the CWA. Stadiums use chemicals for cleaning all aspects of the stadium, including restrooms, food service areas, and seating areas. The storage and use of these chemicals may be regulated under the CAA, EPCRA and CERCLA.
Maintaining Swimming Pools
Tribal governments may operate outdoor recreation facilities that include swimming pools. Swimming pool maintenance involves treating pool water through filtration and the addition of chemicals. The use and storage of pool chemicals may be regulated under EPCRA, and the disposal of unused or spilled pool chemicals may be regulated under RCRA. The drainage and disposal of pool water by subsurface infiltration may be regulated under SDWA.
Vehicle and Equipment Maintenance
Tribal governments with vehicles associated with property construction and property management activities should go to Vehicles and Equipment Maintenance section.
Pollution Prevention in Construction and Maintenance
Tribal governments may be responsible for construction and maintenance activities. Included in this category is the construction and maintenance of roads, bridges and tunnels, the construction, maintenance, renovation and demolition of structures. In some cases, these activities are conducted through contractual arrangements. A simple building/construction cycle includes the following activities:
- Maintenance and repair
Typical Wastes Generated
Pollution prevention begins long before the first nail is driven. Tribal governments can conduct a baseline analysis of institutional issues that may affect pollution prevention/green building construction and maintenance policy implementation. Areas to examine include procurement policies, zoning, building codes and standards, operations and maintenance policies, and recycling policies. Throughout the construction and maintenance process, opportunities exist for implementing pollution prevention.
Pre-construction activities involve the preparation of a site for future development. During this phase existing vegetation and structures may be removed, creating demolition waste including asbestos, mercury, PCB, lead based paints, and dust. Other pre-construction impacts include increased potential for storm water runoff and possible negative impacts on aquatic resources and habitat.
Construction activities may involve grading, drilling, and filling. These activities generally do not generate substantial hazardous waste but may result in habitat loss through erosion, sedimentation, and disruption of the natural environment. Building construction and maintenance activities generate wastes from paints, thinners, grease, resins and sealers, glues, cleaners, hydraulic oils, paint remover/stripper, soiled rags, and solder, as well as a host of solid wastes including paper, plastic, scrap lumber, insulation, metals, gypsum, and roofing materials.
Maintenance and repair activities involve the removal and replacement of worn or damaged surfaces, structural members and lubricating or cooling fluids. This could result in the generation of hazardous wastes such as lead based paint or asbestos, cleaning fluids, used lubricating oil, and cooling system fluids.
Construction and Demolition (C&D)
A major opportunity in the C&D industry is the recovery and reuse of materials. C&D recovery and reuse is important because a large fraction of the debris ends up in municipal solid waste landfills or in special C&D landfills, which may have the potential to contaminate groundwater. Also, each year, there is less land available for waste disposal.
Areas to examine include the type of demolition process selected, labor costs, reuse, recycling, contracting constraints, project schedules, material storage space, and marketability of materials. By reducing the amount of C&D debris that is thrown away, tribes also reduce their regulatory burden by avoiding the disposal of items that could be considered hazardous waste.
The key to reducing the amount of C&D debris is to make material recovery a part of the planning and contracting process, and make waste management and recovery plans part of the contractual scope-of-work. Recovery levels could be made an explicit criteria in the awarding of contracts. Prevailing labor rates and local market conditions will need to be considered since labor costs are viewed as the single most important barrier to increasing C&D materials recovery.
A tribe's permit department could consider connecting permit authorization with material recovery efforts. Educational outreach programs, including workshops, Web sites and informational packets, represent another method for encouraging greater participation in C&D material recovery programs.
Top Pollution Prevention Opportunities
- Adopt and implement a policy to encourage the use of green practices in building design, construction, and operation
- Use "first-in, first-out" materials management
- Segregate waste streams
- Reduce risks of spills by controlling access to storage areas and routinely inspecting containers
- Recycle used cleaning, lubricating, or cooling fluid
- Use water-based paints and coatings to minimize the use of petroleum-based solvents and the hazardous air emissions associated with such solvents
- Avoid unnecessary grading and removal of vegetative cover to minimize road runoff into surface water
- Use waterborne or thermoplastic traffic paint
- Consider deconstruction and reuse of existing buildings rather than demolition
- Utilize deconstruction, or the selective disassembly of buildings, to facilitate the re-use or recycling of valuable materials
- Use high efficiency lighting and electronic ballasts to illuminate roadways and tunnels, and install occupancy sensors to control lighting fixtures
- Design for water conservation - group plants with similar water needs together so they can be irrigated together and water will not be wasted on plants that do not need it; proper watering reduces stress on plants and allow their natural resistance to withstand pest attacks without the need for pesticides
- Employ Environmental Landscape Management (ELM) - ELM is a common-sense approach that starts with healthy growing space; select pest resistant plants, use sound planning techniques, and correctly manage the established landscape; choose plants according to soil characteristics (pH level, moisture retention), rainfall, and sunlight conditions; use more native plant species and reduce the use of exotics
For related information visit EPA’s National Indian Country Enforcement and Compliance Assurance Priority site and EPA’s Enforcement and Compliance Assurance Program in Indian country site.