Roles in Indian Country | 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.
The Clean Air Act
The CAA is designed to "protect and enhance the nation's air resources so as to protect the public health and welfare and the productive capacity of the population." The CAA directs EPA to establish national standards for ambient air quality and for EPA, tribes, and states to implement, maintain, and enforce these standards through a variety of mechanisms; tribes are expressly eligible for TAS. CAA regulations appear at 40 CFR Parts 50-99. EPA's Tribal Air Web site provides information about CAA issues affecting tribes. The Clean Air Act Tribal Authority Rule establishes eligibility requirements for TAS, EPA's Tribal Air Program Resources Web site provides information.
Training and Technical Information
National Ambient Air Quality Standards
EPA establishes national ambient air quality standards (NAAQSs) to limit levels of "criteria pollutants:" carbon monoxide, lead, nitrogen dioxide, particulate matter, ozone, and sulfur dioxide. Geographic areas that meet NAAQSs for a given pollutant are designated as attainment areas; those that do not meet NAAQSs for a given pollutant are designated as non-attainment areas. Under Section 301 of the CAA, tribes may, but are not required to, apply to develop a Tribal Implementation Plan (TIP) to identify sources of air pollution and to determine what reductions are necessary to meet federal air quality standards. Revised NAAQS for particulates and ozone became effective in 2004.
New Source Performance Standards
EPA establishes New Source Performance Standards (NSPS), which are nationally uniform emission standards for new and modified stationary sources falling within particular industrial categories. NSPSs are based on the pollution control technology available to that category of industrial source (40 CFR Part 60).
National Emission Standards for Hazardous Air Pollutants
EPA establishes National Emission Standards for Hazardous Air Pollutants (NESHAPs) to control particular hazardous air pollutants (HAPs). Section 112(c) of the CAA directs EPA to develop a list of sources that emit any of 188 HAPs and to develop regulations for these categories of sources. To date, EPA has listed 185 source categories and developed a schedule for establishing emission standards. The emission standards are developed for both new and existing sources based on "maximum achievable control technology" (MACT). MACT is defined as the control technology that achieves the maximum degree of reduction in the emission of HAPs, taking into account cost and other factors.
Title II of the CAA pertains to mobile sources, such as cars, trucks, buses, and planes, as well as small engines, like lawn mowers, and large stationary engines used in industry and pipelines. EPA uses technology forcing emissions requirements, reformulated gasoline, automobile pollution control devices, and vapor recovery nozzles on gas pumps, among other mechanisms, to regulate mobile air emission sources. While almost all mobile source regulation is reserved exclusively for EPA, eligible and approved TAS tribes may participate in enforcing mobile source enforcement through vehicle inspection and maintenance programs; states are required to participate in such programs.
Sulfur Dioxide/Nitrogen Oxide Emissions
Title IV of the CAA establishes a sulfur dioxide/nitrogen oxide emissions program designed to reduce the formation of acid rain. Sulfur dioxide releases can be reduced under a "cap and trade" program by granting to certain sources limited emissions allowances, which are below previous levels of sulfur dioxide releases. Commercial electric generators (natural gas, oil or coal fired) are the primary subjects of this title. Tribal governments that own and operate municipal waste combustors, sewage sludge incinerators, or large boilers/generators may be subject to these requirements. Tribal governments with these types of sources may choose to seek to obtain federal regulatory authority over this program.
Major Source Permit Program
Title V of the CAA requires that all "major sources" (and certain minor sources) of air pollution obtain an operating permit, and such sources may be required to submit information about emissions, control devices, and the general process at the facility in the permit application. Permits may limit pollutant emissions and impose monitoring, record keeping, and reporting requirements. One purpose of the operating permit is to include in a single document all air emissions requirements that apply to a given facility. Tribal governments may apply for eligibility to issue and monitor Title V permits.
Stratospheric Ozone Protection
Title VI of the CAA is intended to protect stratospheric ozone by phasing out the manufacture of ozone-depleting chemicals and restricting their use and distribution. The production of "Class I" substances, including 15 kinds of chlorofluorocarbons and chloroform, was phased out (except for essential uses) in 1996. EPA's Stratospheric Ozone Information Hotline, at (800) 296-1996, or the Ozone Depletion Web site, provides general information about regulations promulgated under Title VI of the CAA.
Mandates a federal focus on the prevention of serious chemical accidents that could affect public health and the environment. Under these requirements, facilities must identify and assess their chemical hazards and carry out certain activities designed to reduce the likelihood and severity of accidental chemical releases. Information summarizing these activities is available to tribes, the public, and all other stakeholders. Using this information, tribes and tribe members can work with industry to reduce risks to the community from chemical accidents.
In the broadest sense, risk management planning relates to tribal emergency preparedness and response, to pollution prevention at facilities, and to worker safety. In a more focused sense, it forms one element of an integrated approach to safety and complements existing industry codes and standards. The risk management planning requirements build on the Occupational Safety and Health Administration's (OSHA) Process Safety Management Standard.
CAA Implementation in Indian Country
EPA is authorized to directly implement the CAA in Indian country. However, over 100 tribes are now pursuing the development of air quality management programs, and many more have expressed an interest. Many tribes are monitoring their air for a variety of pollutants, from ozone and particulate matter, to mercury and acid rain, as well as developing emission inventories to understand the sources of air pollution on the reservations. Some tribes have been approved to implement CAA provisions and are developing TIPs to address violations of air quality standards; such tribes expect to apply for approval to run ongoing programs in the near future. Other tribes are developing operating permit programs for both major and minor sources of air pollution
Many are actively participating in partnerships with EPA and state regulators to address air quality problems that cross jurisdiction boundaries. An example of these partnerships is air toxics risk assessments being done cooperatively in the Phoenix area by three tribes and the State of Arizona. In addition, as many as 70 tribes are active partners in regional haze planning organizations, and around 100 tribes participate in the Western Regional Air Partnership.
Clean Water Act
The primary objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the nation's surface waters. Pollutants regulated under the CWA are classified as either "toxic" pollutants "conventional" pollutants, such as biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform, oil and grease, and pH; or "nonconventional" pollutants, including any pollutant not identified as either conventional or priority. The CWA is implemented via several regulatory programs, some of which are described here.
National Pollutant Discharge Elimination System Program
The CWA regulates both direct and indirect discharges. The National Pollutant Discharge Elimination System (NPDES) program (CWA Section 402) controls direct discharges into navigable waters. Direct discharges come from "point sources" which are defined as any "discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fixture, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged." These include discharges of industrial and municipal wastewater, as well as stormwater conveyed through a municipal separate stormwater system (MS4). EPA's NPDES Web site provides technical and regulatory information about the NPDES permit program, which controls water pollution by regulating point sources (e.g., pipe, ditch) that discharge pollutants into waters of the United States.
NPDES permits, issued by either EPA or an authorized tribe (or an authorized state or U.S. territory) contain industry-specific, technology-based and water quality-based limits, and establish pollutant monitoring, record keeping and reporting requirements; to date, EPA has not authorized any tribes to administer the NPDES program. A facility that proposes to discharge into the nation's waters must obtain a permit prior to initiating a discharge. The permit will set the conditions and effluent limitations under which the facility may discharge.
A NPDES permit may include discharge limits based on tribal water quality standards that are established under the CWA, and which are designed to protect designated uses of surface waters, such as supporting aquatic life or recreation. These standards, unlike the permit technology-based standards, generally do not take into account technological feasibility or costs. Water quality standards may vary from site to site, depending on the use classification of the receiving water body. When establishing water quality standards and associated water quality criteria, tribes may elect to follow EPA guidelines, which propose aquatic life and human health criteria for many of the 126 priority pollutants.
Combined Sewer Systems Permit Provisions
NPDES permits for municipalities with combined sewer overflow (CSO) must conform to EPA's CSO Control Policy. The permitting provisions include minimum technology-based controls that can reduce the prevalence and impacts of CSOs and that are not expected to require significant engineering studies or major construction. Communities with combined sewer systems are also expected to develop long-term CSO control plans that will ultimately provide for full compliance with the CWA, including attainment of water quality standards. EPA's CSO Web site provides technical and regulatory information about CSOs.
EPA's Stormwater Program is part of the NPDES program and is designed to regulate the discharge of contaminated stormwater (and contaminated discharges from storm sewers that are only supposed to discharge stormwater) into navigable waters.
EPA implemented the stormwater program in two phases. Phase I of the stormwater program applies to medium (serving a population from 100,000 to 250,000) and large (serving a population greater than 250,000) municipal separate storm sewer systems (MS4), certain industrial facilities, and any construction activity disturbing at least 5 acres (large construction sites). Covered MS4, industrial facilities, or construction activity must apply for and obtain an NPDES stormwater permit. Phase I began in 1990.
Phase II of the stormwater program applies to small (serving populations under 100,000) MS4s and construction activity disturbing at least 1 acre and less than 5 acres (small construction sites). Covered MS4 and construction activity should obtain a stormwater NPDES permit for construction. This may be accomplished by submitting a Notice of Intent to EPA to be covered under a national general stormwater permit. Phase II began in 1999.
The term MS4 does not solely refer to municipally owned storm sewer systems, but rather is a term with a much broader application that can include departments of transportation, colleges and universities, sewer districts, hospitals, military bases, and prisons. An MS4 also is not always just a system of underground pipes - it can include roads with drainage systems, gutters, and ditches. The regulatory definition of an MS4 is provided in 40 CFR 122.26(b)(8). EPA's Stormwater Program site provides general stormwater information and the Stormwater Phase II Compliance Assistance Guide (PDF) (97 pp, 1.4MB, About PDF) also provides information.
The CWA also requires EPA to promulgate regulations that restrict discharge of wastewater indirectly through sewers to publicly-owned treatment works (POTWs). POTWs receive wastewater from homes, commercial buildings, and industrial facilities and transport it via a series of pipes, known as a collection system, to treatment facilities. Industrial users of POTWs must comply with CWA pretreatment standards before introducing pollutants into a POTW. These pretreatment standards must control pollutants that may pass through or interfere with POTW treatment processes or contaminate sewage sludge. EPA has developed national categorical Pretreatment Standards that apply numeric pollutant limits to industrial users in specific industrial categories. EPA has also developed general pretreatment requirements. The General Pretreatment Regulations require POTWs that meet certain criteria to develop pretreatment programs to control industrial discharges into their sewage collection systems. Additionally, the General Pretreatment Regulations include general prohibitions that forbid industrial users from causing pass through and interference, and specific prohibitions against the discharge of pollutants that cause problems at the POTW such as corrosion, fire or explosion, and danger to worker health and safety.
Different technology-based categorical pretreatment standards apply to existing and new industrial categories. In addition, POTWs may need to develop "local limits," to assist the POTW in achieving the effluent limitations in its NPDES permit or where necessary in order to prevent pass through or interference. Local limits may be more stringent than federal standards.
Sludge (Biosolid) Management
Section 405 of the CWA regulates the land application and land disposal of sludge - the solid, semisolid or liquid untreated residue generated during the treatment of domestic sewage in a treatment facility. 40 CFR 503 contains provisions for sludge quality, application rates, and environmental conditions under which land application is permitted. The regulations also specify sludge management methods and monitoring and record keeping requirements for both disposal and land application facilities. Sewage sludge can be disposed of in landfills, lagoons, incinerated, or applied to the land to serve as a soil enhancer or fertilizer. Land application of sewage sludge is often done on parks, golf courses, abandoned mines, and during construction site restoration. It can also be applied to crops, including crops for human consumption. EPA's Biosolid Web site provides sludge and biosolid information.
Spill Prevention, Control, and Countermeasure Plans
CWA section 311contains broad federal authority to prevent, respond and cleanup an oil spill or threat of an oil spill. This provision, as implemented through regulations at 40 CFR 112, requires facilities that could reasonably be expected to discharge oil in harmful quantities to navigable waters and adjoining shorelines to prepare and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans. For additional information about SPCC Plans or online at EPA's SPCC page of the Oil Program Web site.
The Water Quality Standards Program and Tribal Program Approval
Section 518(e) of the CWA require EPA to issue regulations to specify how the Agency would treat tribes in a manner similar to states for certain CWA programs, including the water quality standards program. Section 518(e) also requires EPA to establish a mechanism for resolving any unreasonable consequence that results when a tribe and a state adopt different water quality standards for common bodies of water. 40 CFR 131 contains the requirements and procedures for EPA to promulgate water quality standards for tribes and for EPA to approve or disapprove tribal applications.
If a tribe chooses to apply for treatment as a state for the water quality standards program and receives EPA approval, all of the procedures and requirements that apply to states for the development, review, and adoption of water quality standards apply to a tribe with authorization to administer the program. Tribes have three years from the time they receive approval to administer the water quality standards program to submit their water quality standards to EPA for approval.
Water Quality Standards - Dispute Resolution Mechanism
Section 518(e) of the CWA required EPA to issue regulations that establish procedures for resolving disputes between states and tribes that arise as a result of differing water quality standards on common bodies of water. Since some Indian reservations fall within the boundaries of one or more states, so it is possible that there will be conflicting water quality standards for a common body of water because there are two or more responsible governing bodies. This situation also occasionally occurs between two states sharing a common body of water. 40 CFR Section 131 states that the EPA Regional Administrator is responsible for acting in accordance with this section of the Regulation.
Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) mandates that EPA establish regulations to protect human health from contaminants in drinking water. The law authorizes EPA to develop national drinking water standards and to create a system to ensure compliance with these standards. The SDWA also directs EPA to protect underground sources of drinking water through the control of underground injection of fluids.
Drinking Water Programs
EPA has developed primary and secondary drinking water standards under its SDWA authority. EPA and authorized tribes enforce the primary drinking water regulations, which are either contaminant-specific concentration limits that apply to certain public drinking water supplies or treatment techniques that must be followed. Primary drinking water standards are based on maximum contaminant level goals (MCLGs), which are non-enforceable health-based goals. The standards consist of treatment techniques or maximum contaminant levels (MCLs), which are enforceable limits set as close to MCLGs as possible, considering cost and feasibility of attainment.
To assure these standards are maintained, SDWA regulations require public water systems to monitor for various contaminants, such as fecal coliform and metals. In addition, the SDWA regulations require specified disinfection and filtration activities, and public notification when certain contaminants exceed specified levels, and reporting of contaminant limit exceedences. Tribes may apply for eligibility to receive primary enforcement authority (known as primacy) to administer the requirements of Sections 1413 and 1451 of the SDWA. The Navajo Nation has primacy for the SDWA public water system (PWS) program.
Underground Injection Control
The SDWA Underground Injection Control (UIC) program (40 CFR Parts 144-148) is a permit program that protects underground sources of drinking water by regulating five classes of injection wells. The UIC permit program is primarily enforced by EPA in Indian country because no tribe is authorized to administer the program.
Resource Conservation and Recovery Act (Solid and Hazardous Waste Programs)
The Resource Conservation and Recovery Act (RCRA) of 1976, which amended the Solid Waste Disposal Act, addresses nonhazardous (Subtitle D) and hazardous (Subtitle C) waste management activities. The Hazardous and Solid Waste Amendments (HSWA) of 1984 strengthened RCRA's waste management provisions and added provisions governing underground storage tanks (USTs).
Hazardous waste regulations (40 CFR Parts 260-299) establish a "cradle-to-grave" system governing hazardous waste from the point of generation to disposal. Hazardous waste is a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics, may:
- Cause, or significantly contribute to, an increase in mortality or an increase in serious or incapacitating illness
- Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed.
RCRA hazardous wastes include the specific materials listed in the regulations (commercial chemical products designated with the code "P" or "U", hazardous wastes from specific industries/sources designated with the code "K", or hazardous wastes from non-specific sources, designated with the code "F") or materials that exhibit a hazardous waste characteristic (ignitability, corrosivity, reactivity, or toxicity, and designated with the code "D"). The RCRA Orientation Manual provides an overview of both hazardous and non-hazardous waste issues.
Entities that generate hazardous waste are subject to waste accumulation, manifesting, and record keeping standards. Facilities generally must obtain a permit if they store hazardous wastes for more than 90 days before treatment or disposal. Facilities may treat less-than-90-day tanks or containers of hazardous wastes without a permit. Subtitle C permits contain general facility standards, such as contingency plans, emergency procedures, record keeping and reporting requirements, financial assurance mechanisms, and unit-specific standards. RCRA also contains provisions (40 CFR Part 264 Subpart S and Section 264.101 ) for conducting corrective actions, which govern the cleanup of releases of hazardous waste or constituents from solid waste management units at RCRA treatment, storage, and disposal facilities.
Solid Waste Management
Solid Waste Management (40 CFR Part 247 and 258) regulations establish standards and guidelines for solid waste collection and disposal programs, as well as recycling programs. Municipal solid waste - otherwise known as trash or garbage - consists of everyday items such as boxes, grass clippings, furniture, clothing, bottles, food scraps, newspapers, and appliances. The regulations also establish criteria for design, operation, maintenance, and closure for municipal solid waste landfills. In addition, the regulations provide requirements for thermal processing (incineration) and resource recovery facilities. Many tribes have found creative ways to reduce and better manage municipal solid waste through a mix of practices that includes source reduction, recycling (including composting), and disposal.
Underground Storage Tanks Program
Added in 1984, RCRA Subtitle I directed EPA to develop a comprehensive regulatory program for USTs storing petroleum or certain hazardous substances in order to protect the environment and human health from UST releases. EPA's regulations (40 CFR Part 280) set minimum standards for new tanks and require owners of substandard tanks to upgrade or close them by 1998. The regulations address a variety of other requirements, including those related to leak detection and cleanup of releases when they occur. Some USTs, such as many home heating oil tanks, are not federally regulated. Additional information on USTs is available on the Web site for EPA's Office of Underground Storage Tanks.
USTs and Tribes
EPA may not approve tribal UST programs under RCRA. However, tribes may seek to establish oil pollution regulations under their own authority. The Oil Pollution Act (OPA) required the initiation of significant new program activities relating to oil spill prevention, preparedness and response. A few tribes have developed or are developing their own UST regulations under the tribe's laws, usually with financial support provided by EPA through grants or cooperative agreements.
Above Ground Storage Tanks
The Spill Prevention Control and Countermeasures (SPCC) program (40 CFR Part 112) regulates the storage of oil in above ground containers. These regulations require owners or operators of certain above ground oil storage facilities to prepare and comply with written, site-specific, spill prevention plans. ASTs subject to the SPCC requirements are:
- Facilities with a total above ground oil storage capacity of more than 1,320 gallons
- Single above ground tanks with an oil storage capacity of more than 660 gallons
- Facilities with a total combined underground oil storage capacity greater 42,000 gallons
Oil Spill Programs - Spill Prevention, Control, and Countermeasure Plans
The CWA, section 311, and the Oil Pollution Act of 1990 (OPA) contain broad federal authority to prevent, respond to and clean up an oil spill or threat of an oil spill. EPA's Oil Spill Program regulates non-transportation-related facilities storing, producing, using, processing, refining or otherwise managing oil of any kind that could reasonably be expected to discharge into the navigable waters of the United States and adjoining shorelines. EPA's Oil Pollution Prevention rule at 40 CFR Part 112 requires such facilities to develop and implement Spill Prevention, Control and Countermeasure (SPCC) plans. Facilities are not required to report the number of storage tanks or containers. There is no authority under Section 311 for authorized or approved state or tribal SPCC regulatory programs. Information on this program can be found at EPA's Preventing Oil Spills Web site.On July 16, 2002, EPA promulgated a revised final SPCC regulations that became effective August 17, 2002. The SPCC regulations also require specific management procedures for loading, unloading, and storing petroleum products. EPA subsequently extended the regulatory compliance schedule included in the new SPCC rule. The current compliance dates for the new rule are:
- By February 17, 2006, facilities must prepare, and a Professional Engineer (P.E.) certify, an SPCC Plan in accordance with the new SPCC rule by this date
- By August 18, 2006, facilities must implement a revised SPCC Plan. In the interim, facilities are required to maintain their existing SPCC Plans and amend it in accordance with 40 CFR Section 112.5. OPA amended section 311 of the CWA and established additional requirements for oil pollution prevention, response and liability. EPA has several regulations covering response to oil discharges
- The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) 40 CFR Part 300
- Facility Response Plan requirements, 40 CFR Part 112, Subpart D
Coastal and Marine Oil Spills
The U.S. Coast Guard has jurisdiction over coastal/marine oil spills and oil spills that threaten navigable waters. The Department of Transportation, Office of Pipeline Safety, regulates the transport of oil through pipelines. EPA is the lead response agency for inland pipeline spills. More information can be obtained at the Office of Pipeline Safety Web site. Also, a federal reporting requirement exists for oil spills and chemical spills, that requires a call to the National Response Center at (800) 424-8802. To obtain more information on marine spills, contact EPA at (202) 267-2229 or (800) 368-5647. EPA's Reporting Oil Spills Web site also provides more information. Oil spills can also be reported to the National Response Center at (800) 424-8802.
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 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.