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Waste Management | 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 Programs
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."
Popular Resources
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.
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 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.
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.
Representation
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
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.
Enforcement
Waste Enforcement
EPA's Waste Air Enforcement Program addresses, among other things, the generation, transportation, treatment, storage, and disposal of hazardous waste, underground storage tanks, and oil spills and 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.
Criminal Enforcement
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.
Inspections
Waste Inspections
EPA's Waste Compliance Monitoring Web site offers information on conducting inspections at hazardous waste facilities, underground storage tanks, and recycled used oil facilities. This information includes inspection manuals and other guidance and provides a uniform framework for assuring compliance with statutes and regulations on the management of hazardous wastes and underground storage tanks.
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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. |