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General Memorandum 12-124

General Memorandum 12-124
EPA Consultation on Plan to Provide Solid Waste Management Capacity Assistance to Tribes

The Environmental Protection Agency (EPA) announced in a July 12, 2012, Dear Tribal Leader Letter that it is seeking review and comment on a draft EPA Agency-Wide Plan to Provide Solid Waste Management Capacity Assistance to Tribes (the Plan). A second EPA letter to tribal leaders dated September 24, 2012, extended the deadline for submission of written comments to November 8, 2012. A copy of each tribal leader letter is attached. The Plan is available at: www.epa.gov/epawaste/wyl/tribal/capacityassist.htm.

EPA's stated purpose for the Plan is to implement recommendations made in the March 21, 2011, EPA Office of Inspector General (OIG) Evaluation Report EPA Needs an Agency-Wide Plan to Provide Tribal Solid Waste Management Capacity Assistance. The Report and recommendations generally focused on internal EPA program management issues and can be found at: http://www.epa.gov/oig/reports/2011/20110321-11-P-0171.pdf.

The Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901-6992k, which amended the Solid Waste Act, established programs governing the disposal of solid and hazardous waste. RCRA Subtitle D (Solid Waste) requires states to establish State Solid Waste Plans, for approval by EPA. RCRA requires EPA to establish guidelines for state solid waste plans and criteria for the operation of solid waste landfills but does not specifically establish a federal solid waste permit program in the absence of a state program. RCRA does not authorize EPA to treat tribes in the same manner as states. EPA's position is that it is not authorized under RCRA to implement solid waste programs for states or tribes.

The result is that there is no federal solid waste regulatory program in Indian Country, except EPA's criteria for solid waste landfills. Currently, tribes must rely entirely on their inherent jurisdiction to regulate solid waste disposal within Indian Country. As noted in the OIG report, tribes often find it difficult to regulate waste management activities on lands owned by nonmembers.

Given the lack of a federal regulatory program for solid waste in Indian Country and limited tribal authority, there has been a proliferation of open dumps. In 1994, after Congress found at least 600 open dumps on Indian lands, it enacted the Indian Lands Open Dump Cleanup Act of 1994, 25 U.S.C. § 3901-08, which directs the Indian Health Service (IHS) to work with tribes to inventory and close open dumps on Indian lands. The initial IHS inventory of open dumps in 1998 listed approximately 1200 sites; the OIG report states that as of 2010, nearly 4,000 open dumps are listed. The OIG report expressed concern with several aspects of EPA's solid waste program in Indian Country.

EPA's draft Plan has very modest goals. EPA identifies the Plan's primary mission as assisting tribes to develop and implement an Integrated Waste Management Plan (IWMP), since IHS has the lead in closing open dumps. The Plan cites two goals from EPA's Strategic Plan: 1) to increase by 78 the number of tribes covered by an IWMP (134 tribes now have an IWMP, out of 566 federally recognized tribes); and 2) close, clean up or upgrade 281 open dumps on Indian lands (647 open dumps have been closed, cleaned up, or upgraded, with almost 4,000 open dumps still listed). The Plan proposes to modify these goals to focus on developing IWMPs.

While the Plan emphasizes providing training and resources to help tribes develop an IWMP, EPA notes that its Solid Waste Program budget is severely constrained. The Plan describes how funding from the Indian General Assistance Program (GAP) can be used by tribes to develop and implement solid waste programs, and to clean up open dumps. Of course, tribes rely on GAP funds for a variety of environmental activities, and OIG reports that many tribes will not have sufficient funds to perform all of the work they plan and also develop an Integrated Waste Management Plan.

Neither the Plan nor the OIG report mentions steps that EPA could take to establish an enforceable federal solid waste program in Indian Country. One option would be to seek legislation amending RCRA to specifically provide for a federal program when no state program applies and to authorize EPA to treat tribes in the same manner as states for implementing solid waste programs, with federal enforcement as a backup. Another option would be for EPA, as the agency charged with administering RCRA, to interpret the Act as authorizing EPA to establish a federal program in Indian Country. With a federal program, EPA could authorize tribes to administer EPA's regulatory program through Direct Implementation Cooperative Agreements or delegation agreements. Since the draft Plan is described as a dynamic document that will be refined as priorities and resources change, tribal comments on the draft Plan could suggest alternatives for improving how solid waste is regulated in Indian Country and request that EPA devote more resources to this effort.

The deadline of November 8, 2012 is approaching. Tribes might simply ask for more time to address this very important topic. Please let us know if we may provide additional information regarding EPA's draft Plan and/or assist you in responding.

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Inquiries may be directed to:
Rich McAllister (rmcallister@hobbsstraus.com)
Dean Suagee (dsuagee@hobbsstraus.com)

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