1. Isn’t There a Law? Federal Laws and Regulations and Illegal Dumps Dolly Tong U.S. Environmental Protection Agency Region 5 tong.dolly@epa.gov (312) 886-1019 Addressing and Managing Illegal Dumps in Indian Country Minneapolis, Minnesota September 21-23, 2010

2. Outline Indian Lands Open Dump Cleanup Act RCRA CERCLA Superfund Act CERCLA Brownfields Act Clean Water Act Clean Air Act

3. Indian Lands Open Dump Cleanup Act Public Law 103-399 passed in 1994 Indian Health Service has primary responsibility Unfunded mandate to inventory and close open dumps Annual report to Congress

4. 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 (42 U.S.C.6941 et seq.) and which is not a facility for disposal of hazardous waste.

5. Resource Conservation & Recovery Act (RCRA) Subtitle D Addresses non-hazardous solid wastes Prohibits open dumping Provides guidelines on the management of landfills

6. The Federal District Court found that sovereign immunity did not prevent the tribe from being sued. The 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 EPA, BIA, or IHS. - RCRA - Mattie Blue Legs, and Margaret Jenkins, Appellees v. BIA, IHS, EPA, and Oglala Sioux Tribe (1987)

7. U.S. Court of Appeals upheld that Tribes are defined as municipalities under RCRA Recognized EPA’s authority to issue site- specific flexibility rules under RCRA Subtitle D in Indian Country - RCRA - Backcountry Against Dumps v. EPA 100 F.3d 147 (D.C. Cir. 1996)

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

9. 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)

10. - RCRA - Subtitle C 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.

11. RCRA Enforcement Authorities 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 §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

12. 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.

13. 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.

14. 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

15. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “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

16. 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.”

17. 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

18. Brownfields Act 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 propertyowner, 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'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 generationnonprofit organization w/ < 100 employees during preceding year at location of MSW generation

19. 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

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

21. 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.

22. Summary RCRA prohibits open dumping and establishes criteria for MSW landfills and other solid waste facilities Limited enforcement options under RCRA Other potential enforcement options under CERCLA, CWA, and CAA Brownfields has federal enforcement bar on certain exempted parties and MSW parameters, while providing extensive programs for cleanup and prevention

23. Resources RCRA Orientation Manual http://www.epa.gov/epaoswer/general/orientat Site –Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country (Draft Guidance) http://www.epa.gov/epaoswer/non- hw/muncpl/landfill/indian/siteflex.pdf EPA Region 5 Compliance Management Practices for C&D Landfills in Indian Country (Draft Final) http://www.epa.gov/reg5rcra/wptdiv/solidwaste/debris/ resources5.htm EPA Enforcement http://www.epa.gov/compliance