Isn’t There a Law? Federal Laws and Dumps Kristin Hall U.S. Environmental Protection Agency (EPA) (206)

Federal Agencies Indian Health Service Environmental Protection Agency Bureau of Indian Affairs Dept of Defense

Laws  Indian Lands Open Dump Cleanup Act  Resource Conservation and Recovery Act  Exemption for remote Alaskan village landfills  Superfund Act  Brownfields Act  Clean Water Act  Clean Air Act

Indian Lands Open Dump Cleanup Act  Public Law passed in 1994  Indian Health Service has primary responsibility  Unfunded mandate to inventory and close open dumps  Annual report to Congress

Indian Lands Open Dump Cleanup Act  The term "open dump" means any facility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 6944 of the Solid Waste Disposal Act and which is not a facility for disposal of hazardous waste.

Resource Conservation & Recovery Act RCRA Subtitle D – Solid Waste  Amended Solid Waste Disposal Act  Addresses non-hazardous solid wastes  Prohibits open dumping  Provides guidelines on the management of landfills

Blue Legs v. US Bureau of Indian Affairs (1989)  Court ruled Indian tribes are subject to citizen suits to enforce the landfill criteria.  Court ruled BIA, IHS and the Tribe shared the responsibility to clean up the dumps  Court ruled that it was the tribe who has the responsibility to regulate, operate and maintain the reservation solid waste disposal sites, and not the BIA, EPA or IHS. Resource Conservation & Recovery Act

Backcountry Against Dumps v. EPA (1996)  U.S. Court of Appeals upheld that Tribes are defined as municipalities under RCRA  Court determined that RCRA does not authorize EPA to approve Indian tribes to assume the duties of states  Does not strip the tribe of its sovereign authority to govern its own affairs  Recognized EPA’s authority to issue site-specific flexibility rules under RCRA Subtitle D in Indian country Resource Conservation & Recovery Act

RCRA Subtitle D  40 CFR Part 258 – Subpart D Municipal Solid Waste Landfill Criteria - location - design - operation - closure - post-closure - financial assurance

RCRA Subtitle D  40 CFR Part 257 Subpart A Classification of Solid Waste Disposal Facilities and Practices applies to construction & demolition debris landfills - floodplainsSafety - endangered species- explosive gases - surface water- fires - groundwater- bird hazard - disease vector controls - access - air (no open burning)

 Establishes a federal program to manage hazardous wastes from cradle to grave.  Regulates the generation; transportation; and treatment, storage or disposal of hazardous wastes.  Conducts compliance evaluation inspections to ensure that hazardous waste is managed in accordance with law, regulations, and safe handling practices. RCRA Subtitle C

RCRA Enforcement Authorities  Subtitle C - EPA has federal enforcement and implementation authority for tribal hazardous waste programs  Subtitle D - EPA does not have federal enforcement or implementation authority for tribal solid waste programs Limited federal enforcement options in Indian country: §7002 Citizen suit §7003 Imminent and substantial endangerment to health or environment §4005(c)(2) Applies to dumps that may contain household hazardous waste or CESQG waste

§ RCRA §7002  7002(a)(1)(b) In general any person may commence a civil action on his own behalf against any person, including the United States and any other governmental agency, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

§ RCRA §7003  Section 7003 allows EPA to address situations where the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste may present such an imminent and substantial endangerment to health or the environment. In these situations, EPA can initiate judicial action or issue an administrative order to any person require the person to refrain from those activities or to take any necessary action.

§4 RCRA §4005(c)(2)  Authorizes EPA to use tools in Sections 3007 and 3008 of the Act at those open dumps that have certain types of hazardous waste, including household hazardous waste (which is often found in trash).  EPA may inspect for compliance with federal prohibition on open dumps, as well as compliance with federal hazardous waste rules.  Inherently no adequate state program present

Exemption for remote Alaska  Remote Alaskan villages  Class III village landfills  Permitted by Alaska State Department of Environmental Conservation  Best Management Practices

Comprehensive Environmental Response, Compensation, and Liability Act - “Superfund” Act Enforcement Authorities  §104(a) - Respond to hazardous releases from dumps (e) -Gather info; access; seek penalties (e) -Gather info; access; seek penalties  §106(a) -Issue orders for PRPs to do cleanup  §120 -federal facilities  §122 -settlementagreements w/PRP to do cleanup or pay for EPA to cleanup  §122 -settlement agreements w/PRP to do cleanup or pay for EPA to cleanup

Small Business Liability Relief and Brownfields Revitalization Act of January 11, 2002 Brownfields Definition “…..real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant.”

Brownfields Funding Programs Subtitle A.  Authorizes grants of up to $350K per site for assessment.  Authorizes grants of up to $200K per site for eligible entities to clean up brownfields.  Authorizes grants for up to $1M for revolving loan fund (RLF) program Subtitle C.  State and Tribal Response Programs

Brownfields Federal Enforcement Bar Section 102 of the Act bars federal enforcement action for sites in eligible State/Tribal cleanup programs in some circumstances. Municipal Solid Waste - Persons exempt from Superfund response cost liability as generators for MSW disposal if person is: owner, operator, or lessee of residential property business w/ <100 employees in the three years prior to notification of potential liability, and a 'small business concern' nonprofit organization w/ < 100 employees during preceding year at location of MSW generation

Brownfields Act Federal Enforcement Bar Exceptions to MSW Exemption from Liability  waste contributes or could contribute significantly, either individually or in aggregate, to cost of response action or natural resource restoration  person fails to comply with information request  person impedes or impeded, through action or inaction, response action or natural resource restoration at facility

Enforcement Authorities Clean Water Act Enforcement Authorities  §309 -penalties for unlawful discharges to navigable waters  §311 -oil & hazardous substance liability  §405 -sewage sludge use & disposal

Clean Air Act  Section 303 – EPA may issue “emergency adminstrative” orders to abate a danger to human health or environment, caused by any source of air pollution, without showing a non-compliance with the Act.  Federal Air Rules for Reservations – Prohibits open burning of garbage and other materials

Summary  Indian Lands Open Dump Cleanup Act give IHS a lead role  RCRA prohibits open dumping and establishes criteria for landfills and other waste facilities  Limited enforcement options under RCRA  Other enforcement options under Superfund, CWA, and CAA – Federal Air Rules for Reservations  Brownfields has federal enforcement bar on certain exempted parties and MSW parameters, while providing extensive programs for cleanup and prevention

Resources  EPA Region 10 Tribal Solid and Hazardous Waste web page click on tribal programs click on solid and hazardous waste  EPA Waste Management in Indian Country web page  EPA Region 10 Brownfields web page

Questions? Kristin Hall (206) or Al LaTourette (206)