Healthcare | Regulatory Requirements
Direct Federal Implementation of Environmental Laws in Indian Country - EPA's Role as Regulator
Environmental program responsibility requires capability and significant resources, among other things. Tribal governments do not always find it practical to assume full responsibility for EPA programs. Based upon a variety of factors, often including program costs, assistance and maintenance costs, and availability of technical expertise, tribal governments may focus on certain high-priority activities, but may decide not to assume an entire regulatory program. When tribes decide not to undertake certain activities under EPA's programs or not to apply for entire programs, EPA will seek to directly implement the environmental programs, as appropriate. EPA may also directly implement certain environmental management programs where federal statutes preclude tribal eligibility.
Tribal Assumption of Federal Environmental Laws
In the EPA Indian Policy, EPA announced its support for Tribal Assumption of Federal Environmental Laws under federal statutes, stating, among other things, that "[t]he Agency will recognize tribal governments as the primary parties for setting standards, making environmental policy decisions, and managing programs for reservations, consistent with Agency standards and regulations."
Three environmental statutes - the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA), and the Clean Air Act (CAA) - explicitly authorize EPA to "treat tribes in the same manner as states" (TAS) for purposes of implementing various environmental programs. In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) explicitly include a provision that affords tribes substantially the same treatment as states with respect to certain provisions of the Act, while the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also provides a role for tribes. Although the Toxic Substances Control Act (TSCA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) do not explicitly provide for TAS, EPA has taken the position that it has the discretion to approve tribes to implement certain programs in the same manner as states in order to fill gaps in how the statutes are implemented in Indian country.
For tribes to assume many of EPA's regulatory programs, they generally must go through the TAS process and meet the following criteria:
- The tribe must be federally-recognized
- The tribe must have or be able to exercise substantial governmental powers
- The tribe must have or have been delegated jurisdiction over the area in question
- The tribe must be reasonably expected to have the capability to effectively implement a program
In general, once a tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and capability for each subsequent program. If a tribe does not have capability, it must have a plan for acquiring capability over time. A capability showing is required because each program may require different skills and activities to provide protection that meets the requirements of specific statutes and regulations.
Perhaps the most important of the tribe-specific eligibility criteria is whether the functions to be exercised by a tribe are within the applicant tribe's jurisdiction. EPA asks tribes that are applying for regulatory programs to demonstrate in their applications that they have adequate jurisdiction over the areas to be regulated. Under principles of federal Indian law, tribes generally have inherent sovereign authority to regulate both their members and land held in trust (although specific statutes may have affected this general principal for some tribes). Depending on the scope of the application, EPA may also need to evaluate whether a particular tribe has jurisdiction over nonmember activities on nonmember-owned fee lands within the boundaries of an Indian reservation. Jurisdiction over nonmember activities on fee lands may come from two potential sources: a tribe may have inherent authority over these activities; or Congress may, by statute, delegate federal authority to a tribe. Tribal applications for authorization to administer the program are sent to EPA's Regional Administrators.
EPA has made a number of "treatment in the same manner as a State" determinations for tribes, most of which involved findings that tribes are eligible for grants under the CWA. EPA has approved twenty-seven tribes to set water quality standards under section 303 of the CWA. One tribe has received primacy under the SDWA. Five tribes have received program approval under the CAA. Approximately 30 tribes operate pesticide certification or enforcement programs authorized by FIFRA under cooperative agreements with EPA.
Emergency Planning and Community Right-to-Know Programs
The Emergency Planning and Community Right-to-Know Act (EPCRA) is designed to improve community access to information about chemical hazards and to facilitate the development of chemical emergency response plans by tribal governments. EPCRA and its regulations (40 CFR Parts 350-372) establish four types of reporting obligations for facilities that store or manage specified chemicals:
Extremely Hazardous Substances
Requires facilities to notify the SERC and LEPC of the presence of any extremely hazardous substance (the list of such substances is in 40 CFR Part 355, Appendices A and B) in excess of the substance's threshold planning quantity and directs the facility to appoint an emergency response coordinator.
Notification of a Release or Exceedence
(EPCRA Section 304) Requires facilities to notify the SERC and the LEPC in the event of a release equaling or exceeding the reportable quantity of a CERCLA hazardous substance or an EPCRA extremely hazardous substance.
Material Safety Data Sheets
(EPCRA Sections 311 and 312) Require a facility at which a hazardous chemical, as defined by the Occupational Safety and Health Act, is present in an amount exceeding a specified threshold to submit to the TERC, LEPC, and local fire department material safety data sheets (MSDSs) or lists of MSDSs and hazardous chemical inventory forms (also known as Tier I and II forms).
Toxic Release Inventory
(EPCRA Section 313) Requires manufacturing facilities included in SIC codes 20 through 39, as well as SIC codes 10, 12, 4911, 4931, 4939, 4953, 5169, 5171, and 7389, that have 10 or more employees and that manufacture, process, or use specified chemicals in amounts greater than threshold quantities, to submit an annual toxic chemical release report. This report, known commonly as Form R, covers releases and transfers of toxic chemicals to various facilities and environmental media and allows EPA to compile the national Toxic Release Inventory (TRI) database.
EPCRA and Tribes
Under EPCRA and 40 CFR Parts 350-372, tribes can establish tribal emergency response commissions (TERCs), which are responsible for coordinating certain emergency response activities and can appoint tribal emergency planning committees (TEPCs). Tribal EPCRA programs involve the collection, management, and distribution of information related to the presence of particular substances at facilities in their areas.
Comprehensive Environmental Response, Compensation, and Liability Act
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a 1980 law known commonly as Superfund, authorizes EPA to respond to releases or threatened releases of hazardous substances that may endanger public health, welfare, or the environment. CERCLA also enables EPA to compel parties responsible for environmental contamination to clean it up or to reimburse the Superfund for response costs, which include remediation costs incurred by EPA.
EPA Responses to Hazardous Substance Releases
EPA implements hazardous substance responses according to procedures outlined in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR Part 300). The NCP includes provisions for permanent cleanups, known as remedial actions, and other cleanups, referred to as removals. EPA generally takes remedial actions only at sites on the National Priorities List (NPL), which currently includes approximately 1,300 final and proposed sites. Both EPA and states can act at NPL sites; however, EPA provides responsible parties the opportunity to conduct removal and remedial actions and encourages community involvement throughout the Superfund response process. EPA and states have developed a work share arrangement to divide assessment and cleanup responsibility. As a matter of policy, EPA requests state or tribal concurrence for listing a site on the NPL, depending on whether the site is located on state or tribal lands. In certain circumstances, EPA does conduct response actions at non-NPL sites.
Superfund Enforcement Program
A primary goal of the Superfund enforcement program is to obtain consensual settlements, or, if necessary, compel potentially responsible parties (PRPs) to implement or pay for site cleanups. Hazardous waste responses are often an emergency and there is not time to search for PRPs and to ensure they take responsibility for their action. In these cases EPA acts immediately, taking a Fund-lead action, which uses federal money from the Superfund, and then tries to recover the costs of the cleanup from the PRPs. When the situation permits, EPA tries to get the PRP to conduct the cleanup before it uses Fund resources. When this happens the action is referred to as an enforcement-lead or PRP-lead action.
Superfund Sites and Tribal Governments
Tribes are accorded the same status as states under much of CERCLA and its regulations, which provide for a meaningful and substantial role for tribes in Superfund response. Tribes are increasingly choosing to exercise that role as they develop greater capability for site response.
Natural Resource Damages
Natural resource injuries may occur at sites as a result of releases of hazardous substances or oil. CERCLA provides authority for assessment and restoration of natural resources that have been injured by a hazardous substance release or response. Oil Pollution Act (OPA), enacted in reaction to the Exxon Valdez oil spill, provides authority for oil pollution liability and compensation as well as for the federal government to direct and manage oil spill cleanups. Similar to CERCLA, OPA contains authorities to allow the assessment of damages and restoration of natural resources that have been contaminated by the discharge, or threatened discharge, of oil. Both CERCLA and OPA define "natural resources" broadly to include "land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources...."
Natural Resource Damages (NRD) Trustees
EPA is not a Natural Resource Trustee, nor is it authorized to act on behalf of Natural Resource Trustees. For NRD, EPA's role primarily involves the notification of, and coordination with, all Trustees, including coordinating assessments, investigations, and planning with Trustees. When an enforcement action is initiated, CERCLA requires EPA to notify Federal Natural Resource Trustees of settlement negotiations with potentially responsible parties, if the release of hazardous substances may have resulted in injuries to natural resources under their Trusteeship, and encourages the participation of Federal Natural Resource Trustees in settlement negotiations. OPA requires EPA to consult with affected trustees on removal actions taken in conjunction with any discharge of oil.
Under both CERCLA and OPA, federal, tribal, and state "Natural Resource Trustees" are authorized to "represent" natural resources belonging to, managed by, controlled by, or appertaining to their respective entities. The two major areas of Trustee responsibility under CERCLA and OPA are:
- Assessment of damages due to injury to natural resources
- Restoration of natural resources injured or services lost due to a release or discharge
Both statutes provide several mechanisms to meet these responsibilities. The Trustees can either:
- Sue in court to obtain compensation from the potentially responsible parties (PRPs) for NRD damages and the costs of assessment and restoration planning
- Conduct assessments or restorations in accordance with certain standards specified by the federal government and file a claim for reimbursement from the Trust Fund established under OPA
- Participate in negotiations with PRPs to obtain PRP-financed or PRP-conducted assessments and restorations of NRD
Tribal Natural Resource Trustees
Tribal Chairmen (or heads of the governing bodies of Indian Tribes), or persons designated by tribal officials, shall act as Tribal Trustees for natural resources belonging to, managed by, controlled by, or appertaining to the Indian Tribe, or held in trust for the benefit of such Indian Tribe, or belonging to a member of an Indian Tribe, if such resources are subject to a trust restriction on alienation. Under certain circumstances, the Secretary of the Interior may act as Trustee on behalf of a Tribe at the Tribe's request (40 CFR 300.610).
Cleaning Up and Reinvesting in Contaminated Property
In January 2002, Superfund was amended by the Small Business Liability Relief and Brownfields Revitalization Act to provide relief for small businesses from liability under Superfund, and to amend CERCLA to promote cleanup and reuse of brownfields, to provide financial assistance for brownfields revitalization, and to enhance state and tribal response programs. "Brownfields" sites are properties, the redevelopment of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. The free-standing law, commonly known as the Brownfields Law, authorizes EPA to address brownfields sites that may not be addressed under Superfund. The Brownfields Law also changes and clarifies Superfund liability in two ways:
- Clarifies Superfund liability for prospective purchasers, innocent landowners, and contiguous property owners
- Provides liability protection for certain small volume contributors and contributors of municipal solid waste
Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) addresses the sale, distribution, and labeling of pesticides, as well as the certification and training of pesticide applicators. FIFRA also establishes record keeping and reporting requirements on certified applicators of restricted use pesticides, as well as imposing storage, disposal, and transportation requirements on registrants, and applicants for registration, of pesticides.
The primary purpose of FIFRA is to regulate the labeling, and the subsequent use, of pesticides. Pesticide use is regulated through requirements to apply pesticides in a manner consistent with the label. The labeling requirements include directions for use, warnings, and cautions, along with the uses for which the pesticide is registered (i.e., pests and appropriate applications). Labeling requirements also include specific conditions for the application, mixture, storage, and time period for re-entry to fields following pesticide application, and when crops may be harvested after applications. If a pesticide is used in a manner contrary to its labeling, that use constitutes a violation of FIFRA.
FIFRA and Tribes
EPA generally is the primary enforcement authority for pesticide use violations in Indian country. Tribes may seek to restrict the sale or use of a federally registered pesticide, but may not allow the sale or use of a federally prohibited product. EPA works cooperatively with tribal government to enforce FIFRA, as it does with states and territories. For example, under FIFRA Section 23, EPA may enter into cooperative agreements with tribes. These agreements may include provisions for tribes to assist EPA in ensuring compliance with FIFRA by obtaining federal inspector credentials, conducting inspections, and recommending enforcement actions to EPA. As a separate matter, EPA also provides funding to tribes to assist in the development and implementation of pesticide programs under tribal law.
Toxic Substances Control Act
The Toxic Substances Control Act (TSCA) granted EPA authority to create a regulatory framework to collect data on chemicals to evaluate, assess, mitigate, and control risks that may be posed by their manufacture, processing, and use. TSCA provides a variety of control methods to prevent chemicals from posing unreasonable risk.
TSCA standards may apply at any point during a chemical's life cycle. Under TSCA Section 5, EPA has established an inventory of chemical substances. If a chemical is not already on the inventory and has not been excluded by TSCA, a premanufacture notice (PMN) must be submitted to EPA prior to manufacture or import. The PMN must identify the chemical and provide available information on health and environmental effects. If available data are not sufficient to evaluate the chemical's effects, EPA can impose restrictions pending the development of information on its health and environmental effects. EPA can also restrict significant new uses of chemicals based upon various factors, such as the projected volume and use of the chemical.
Under TSCA Section 6, EPA can ban the manufacture or distribution in commerce, limit the use, require labeling, or place other restrictions on chemicals that pose unreasonable risks. Among the chemicals EPA regulates under Section 6 authority are asbestos, chlorofluorocarbons, and PCBs.
National Environmental Policy Act
The National Environmental Policy Act (NEPA) was one of the first laws written to establish the broad national framework for protecting our environment while bolstering the health and welfare of humankind. NEPA directs federal agencies to assess the potential environmental impacts of their proposed major actions significantly affecting the human environment and inform the public about those potential impacts. For Indian country and in other tribal areas, the environmental impacts of federal agency actions may involve such things as water quality or quantity issues, air quality issues, land use, or potential impacts to sacred sites, items of cultural patrimony, and traditional hunting, fishing, and gathering rights. Understanding the range of potential environmental impacts enables federal agencies to integrate environmental values into their decision-making processes.
Environmental assessments may be used by a federal agency to determine whether the environmental impacts of the agency's proposed action are likely to be significant. If the impacts are not expected to be significant, federal agencies prepare a finding of no significant impact. If the impacts are likely to be significant, federal agencies prepare an environmental impact statement (EIS). As part of the NEPA process, federal agencies, including EPA, with jurisdiction by law or with special expertise with respect to any environmental impact involved, or which are authorized to develop and enforce environmental standards, must comment on another agency's EISs.
EPA also has unique comment responsibility under Section 309 of the Clean Air Act because the Agency must review and comment in writing on the environmental impact of, among other things, any newly authorized federal projects for construction and any major federal agency action significantly affecting the environment. Thus, as part of the NEPA process, EPA reviews all EISs prepared by federal agencies, and may also review some environmental assessments. EPA's comment letters are available to tribes and tribal members upon request and EIS comment summaries are available at the EPA Comments on Environmental Impact Statements Web site.
Under the NEPA process, tribes generally are invited to comment on EISs when the effects of the federal agency's action may be on a reservation, and federal agencies should actively solicit tribal government participation as a "cooperating agency" when the project's effects are on a reservation. Agencies should also invite tribes to comment and be a "cooperating agency" when non-reservation tribal resources are affected.
Identifying, understanding and addressing the potential environmental impacts to tribes and Indian country and in other tribal areas are key elements of the NEPA process. Indeed, the Council of Environmental Quality's regulations implementing NEPA specify that federal agencies should consult with affected tribal governments through the scoping process, and identify possible conflicts between a proposed action and the objectives of tribal reservation land use plans, policies and controls. In addition to any scoping comments and comments on draft EISs which the tribes and individual tribal members may offer, EPA uses its knowledge of Indian country to facilitate the identification of potential issues during scoping so that the NEPA process addresses issues that could impact tribes and tribal members.
For certain programs, EPA may also prepare an EIS for an action. In such cases, EPA solicits participation of the tribal government as a "cooperating agency" when the project's effects may impact Indian country and other tribal areas. As part of the EIS process, EPA fully considers potential impacts to the tribal government and/or tribal members as part of its consideration of other relevant environmental statutes, regulations and Executive Orders related to the proposed action. EPA seeks to ensure that mitigation plans developed by EPA for the action incorporate tribal concerns and, for project effects that may impact Indian country or other tribal areas, that the tribal government and/or tribal members will have meaningful involvement in the development and, as appropriate, implementation of these mitigation plans.
EPA's Civil Enforcement program addresses, among other things, hazardous waste, toxic chemicals, drinking water, and other environmental issues related to ensuring compliance with applicable environmental laws in the operation of hospitals and health care facilities. The program is designed to return violators to compliance and deter misconduct in others, eliminate or prevent environmental harm, and preserve a level playing field for responsible companies that abide by the laws.
EPA's Criminal Enforcement program uses stringent sanctions, including jail sentences, to promote deterrence and help ensure compliance in order to protect human health and the environment. Criminal enforcement is often used against the most serious environmental violations as well as those which involve egregious negligence or conduct involving intentional, willful or knowing disregard of the law.
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.