United States
Environmental Protection
Agency
Solid Waste
and Emergency Response
(5303W)
EPA 530-N-00-008
Fall 2000
www.epa.gov/osw
EPA Native American Network
Federal Agencies Unite to Help
Tribes Solve Solid Waste Problems
~W~n an exceptional gesture of
I solidarity, nearly a dozen Federal
JLagencies joined forces to help Tribes
close high-threat open dump sites
around the country. At a signing
ceremony on Friday, August 11, 2000,
at the Tribal Association for Solid
Waste and Emergency Response
(TASWER) Resource Conservation and
Recovery Act (RCRA) conference in
Washington, DC, these Federal
agencies signed a Memorandum of
Understanding (MOU) to provide
additional assistance to Tribes with the
closure or upgrade of their high-threat
open dumps. Since 1999, a multi-
agency Tribal solid waste task force
provided $4.1 million to 18 Tribes to
assist with the closure or upgrade of
their high-threat open dumps.
The MOU was signed by EPA, the
Department of Interior's Bureau of
Indian Affairs (BIA), the Department of
Agriculture's Rural Utilities Service
(RUS), the Department of Defense, the
Department of Health and Human
Service's Indian Health Service (IHS),
and the Department of Housing and
Urban Development. Other agencies
that support this effort are: the Federal
Aviation Administration, the National
Oceanic and Atmospheric
Administration, the United States
Continued on page 2, column 1
Shoshone-Bannock Tribes Confront
Hazardous Waste Management Issues
TT ocated on privately-owned land
I within the Shoshone-Bannock
-•—/Tribes' Fort Hall Indian
Reservation is a phosphorus production
facility formerly owned by FMC
Corporation and now owned and
operated by Astaris Idaho, LLC. This
facility is in the process of dealing with
hazardous waste management issues
that have long held the attention of the
Shoshone-Bannock Tribes. Namely,
these issues involve: EPA's approval of
the Pocatello facility's request for a
case-by-case (CBC) extension to the
RCRA land disposal restrictions (LDR);
treatment standards applicable to the
wastes the facility generates; and a
1998 Consent Decree between the
Department of Justice (DOJ), EPA, and
FMC to address RCRA compliance
issues (United States v. FMC Corp, Civ.
98-0406-E-BLW). EPA views the
Consent Decree and the CBC as
compelling the company to provide
necessary treatment capacity to properly
manage hazardous waste at the facility.
-Federal Agency
L Commitments
I Under the MOU
k._, ".' "-.
f EPA - will provide financial and
fe technical assistance to Tribes for
jp- planning, assessment, training, and
f-: community outreach as well as limited
t financial assistance for solid waste
•__ management demonstration projects.
"
Continued on page 6, column 1
Bureau of Indian Affairs - will assist
Tribes with their solid waste problems,
r including assessing the threat to public
|_ health and the environment from open
|_ dumps on Indian lands, assisting Tribes
f to establish alternative disposal methods,
f - and assisting them with closure of open
'• dumps. In addition, officials have agreed
1_ to provide training and technical
^assistance to operate and maintain Tribal
;r solid waste facilities.
E,, .-,,.--...--
jr Indian Health Service - will assist
|~Tribes to establish alternative disposal
p methods, then assist them with closure
*" of open dumps. Similar to BIA, IHS will
u also offer technical assistance to operate
f - arid maintain Tribal solid waste
^facilities.
;c_ ----- • . ... :
1 Rural Utilities Service - will encourage
^ applications from Indian Tribes for
* direct loans to develop water and
£.: wastewater systems, including solid
|= waste disposal systems on reservations.
t.- RUS has also committed to consider for
|T funding complete applications from
f~ Indian Tribes for the solid waste
priiariagement grant program. These
1; grants provide technical assistance and/
JL or training to reduce or eliminate
£^ pollution of waste resources and to
^_'- improve planning and management of
f- soh'd waste facilities.
| Continued on page 2, column 1
Printed on paper that contains at least 20 percent postconsumer fiber.
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Federal Agencies Unite to Help Tribes Solve SolidWaste Problems, from page 1
Geological Survey, the Agency for
Toxic Substances and Disease Registry,
and the United States Coast Guard.
The agreement established short- and
long-term goals to assist Tribes with
their waste management programs.
The agreement links the agencies in a
cooperative effort that will utilize
technical and managerial aspects that
each of the agencies can provide.
Open dump sites on Indian lands could
cost $126 million to close or upgrade,
according to a 1998 IMS report to
Congress. The report identifies
1,104 open dumps on Indian lands with
142 classified as high-threat sites. There
are still more open dumps in Indian
Country that have not yet been officially
counted.
To help Tribes promote safe solid waste
management on Indian lands, EPA,
BIA, and IHS formed the multi-agency -
Tribal Solid Waste Interagency
Workgroup in April 1998. The Tribal
Open Dump Cleanup Project is part of
the workgroup's effort to coordinate
Federal assistance for Tribal solid waste
management programs.
The MOU is an historic cooperative
effort for agencies to pool resources for
safely and effectively improving the
health conditions on reservations that
lack these services.
"This Open Dump Cleanup Project is a
fine example of what we can achieve
when we work together. Open dumps
can present significant environmental
problems and if left uncontrolled could
cause health problems to people living
near these pollution sources," said
Agency Commitments, from page 1
: Department of Defense - will work
cooperatively with Federal agencies
f= and Tribal governments to identify
DoD contributions to noncompliant
municipal solid waste sites.
I
: Housing and Urban Development,
" Office of Native American
" Programs-will continue to provide
financial and technical assistance to
" Tribes through programs such as
Indian Housing Block Grants. HUD
- will also use its technical assistance
network to encourage Tribes to
'- address solid waste management
- needs within their Indian Housing
I Plan. Finally, the agreement calls for
the HUD representative to request
consideration, when appropriate, by
: the Secretary of HUD for funding
- from discretionary housing program
; funds for solid waste remediation and
management projects that meet
eligibility requirements.
together to provide Tribal governments
the necessary funding for training,
technical assistance, planning,
implementation, closure, and post-
closure activities.
"I'm proud of the Federal agencies that
have provided resources to improve
waste management in Indian Country. I
thank the Tribal governments for their
persistence and cooperation in
clarifying the need to address the
problems associated with open dumps
TASWER and Agency Reps at the MOU Signing (left to right): Laura Weber, St. Regis Mohawk
Tribe; Ben Smith, EPA; Lydia Olympic, Igiugig Village Council; Timothy Fields, EPA;
Virginia Washington, Native Village of St. Michael, AK; Christopher McLean, DOA-RUS;
Sherri W. Goodman, DoD; Francis Harjo, HUD; Sharon Blackwell, BIA; Cynthia Pilot,
Louden Tribal Council, Galena Bay, AK; Gary Hartz, IHS; Sylvia Lowrance, EPA;
JeffTomhave, TASWER; Shiela Seven Starr, Cherokee Nation, OK.
Timothy Fields, Jr., Assistant
Administrator for the EPA Office of
Solid Waste and Emergency Response.
"The management of solid waste is a
critical issue for Tribal people," BIA
Assistant Secretary Kevin Gover said.
"I'm glad to see that all the players are
cooperating to bring this effort into the
21st century."
Michael H. Trujillo, Director of the
Indian Health Service said "The Federal
Tribal Solid Waste Interagency
Workgroup partnership will lay the
foundation for even greater strides in
eh'minating health disparities for
American Indians and Alaska Natives
as healthier environments are
established."
Federal agency cooperative efforts will
first identify facilities, then work
in their communities," said Lynn G.
Cutler, Senior Advisor to the White
House chief of staff for Indian affairs.
"This interagency effort is a wonderful
example of what can be achieved when
agencies work with Tribes, and leverage
authorities and appropriations for a
common purpose. In addition to
assisting 18 Tribes with the closure or
upgrade of high-threat open dumps, the
project is a significant step toward
helping Tribes to complete and
implement integrated waste
management plans, develop realistic
solid waste management alternatives,
and develop post-closure programs,"
she said.
For more information on open dumps
on Indian lands or to obtain a grant
solicitation package, visit EPA's website
at: http://www.epa.gov/tribalmsw or
contact Luke Jones at (703) 605-0728. ©
-------
MUNICIPAL SOLID WASTE
www.epa.gov/tribalmsw
Blackfeet Nation
Tribal Open Dump Cleanup Project
In the Fall of 1999, the Tribal Solid
Waste Interagency Workgroup
awarded the Blackfeet Nation a
$110,000 grant to provide for open
dump closure activities. In applying for
the grant, the Blackfeet Nation
indicated that the request for funds was
to finance the closure of a 70 acre open
dump. Although the initial plan was for
the Tribe to construct a new landfill on
the reservation adjacent to the open
dump, current plans are to finance a
transfer station and to transport waste to
a licensed off-reservation landfill.
The problem of open dumps has^
plagued the Blackfeet Nation
Reservation for decades. However, on
October 9,1997, the Blackfeet Nation
began the process of closing the old
open dump. As funds for planning
became available through the Open
Dump Cleanup Project, the Tribe
devoted other resources to applying a
cover over the open dump and other
cleanup activities on-site. Since there
were no soil or water samples taken
near the open dump, no baseline data is
available to compare current conditions.
High winds at the site are a serious
problem resulting in blowing garbage
and possible fke hazards.
The funds allotted through the Open
Dump Cleanup Project are vital to the
Blackfeet Nation as the Tribe addresses
the open dump situation. However, the
lack of adequate funding makes the task
of closing open dumps a daunting task.
Although the primary cover has already
been placed on the dump, there are still
many issues the Tribe needs to address.
These tasks include soil placement and
compaction, revegetation, erosion
control, installation of groundwater
monitoring wells and methane
monitoring equipment, baseline
monitoring, post-closure plan
development, and construction quality
assurance. The Tribe will use funds
Pueblo of Taos
Open Dump Cleanup Project
\he Tribal Solid Waste
Interagency Workgroup
awarded the Pueblo of Taos a
grant for its Open Dump Cleanup
Project. The grant funding enabled the
Pueblo of Taos to cap its open dump,
provide post-closure maintenance and
monitoring, establish a transfer station
and/or curbside collection service, and
provide outreach to the community. In
addition, the Pueblo hired a project
director familiar with the Tribe's
process. The Tribe used an erosion
control cover, infiltration layer, and a
clay/high-density polyethylene (HOPE)
liner. For post-closure maintenance and
monitoring, sampling wells were drilled
and drive points set to trap water flows
down gradient from the dump. To
assess the effects of a transfer station or
curbside collection service, illegal
dumping activity was monitored. The
Taos Pueblo Utility Service (TPUS)
Board held public meetings, gave
from the open dump grant to address
the planning portions of these activities.
In order to adequately and effectively
close the used portion of the 70-acre
open dump, the Blackfeet Nation
decided to use a portion of their grant
money to hire a temporary closure
coordinator to oversee all cleanup
activities on-site.
For further information contact Tina
Diebold, EPA Region VIE, (406) 441-
1130, Ext. 227.*
^N?ST
-Ir^fA/f
presentations at schools, and conducted
community surveys to address the solid
waste management needs. The closing
of the open dump and development of
alternative solid waste management
options will protect the health of the
community and prevent environmental
damage to wetlands, the aquifer, and
the Pueblo's bison herd.
Continued on page 5, column 1
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Realities of RCRA on Tribal Lands:
Stabilizing the Environmental Health of Indian Country
On August 10-11, 2000, the
Tribal Association on Solid
Waste and Emergency
Response (TASWER) and over 70
Tribal representatives came together in
Washington, DC, to discuss RCRA.
The meeting allowed Tribal environ-
mental leaders and Council members to
become better informed about the law
and offer their reactions to the present
system. What follows is a brief
summary of their suggestions and needs
discussed during the meeting.
RCRA, the law that governs the
management of solid and hazardous
waste, considers Tribes as
municipalities. According to 42 U.S.C.
§6903, sec. (13) a municipality is:
(A) ...A city, to\vri, borough;'county,"-
parish, district, or other public body
created by or pursuant to State law,
with responsibility for planning or
administration of solid waste
management, or an Indian Tribe or
authorized Tribal organization or
Alaska Native village or
organization, and (B) includes any
rural community or unincorporated
town or village or any other public
entity for which an application for
assistance is made by a State or
political subdivision thereof.
This definition severely limits the
ability of Tribes to create and stabilize a
strong environmental infrastructure.
According to meeting participants, the
RCRA definition of municipality does
not provide a foundation for Tribal
solid and hazardous waste disposal
programs. Inevitably, a foundation for
such programs must start with money.
Although RCRA allows stable funding
for States, entities that have a tax-base
and can function independently, the law
does not provide similar funding for
Tribes. Because of this reality, Tribes
are forced to compete with each other
and other municipal groups for a very
small pot of funding dollars. Most
Tribal environmental directors spend
more time looking for money to fund
their programs than on implementation
of those programs. Although they may
find money this year, next year's
funding is not guaranteed or even a
probability in many cases.
JeffTomhave, the Executive Director of
TASWER, speaks at the TASWER
RCRA meeting.
In addition to unstable funding, several
speakers stressed that Tribal
environmental departments face public
education needs. The lack of
environmental education leads to
community members dumping waste at
any convenient spot. Often, Tribal
Council members do not prioritize solid
waste issues because they are not aware
of the impact of improperly disposed of
waste. Children have made open
dumps and burn barrels their
playgrounds and their health is affected
each day.
In addition to the environmental
education needs of the Tribal
community, most environmental
departments face the challenge of
educating the general public, and State
and Federal governments. These entities
not only contribute to the waste
problems, they also have the ability -
and in some cases the responsibility - to
assist in cleanup and stabilization
programs, according to conference
participants.
The realities of RCRA change with
each Tribe, but the overwhelming needs
that are consistently present start with
funding and education.
During the TASWER RCRA confer-
ence, attendees were challenged to
propose changes to the current system.
The following suggestions were made:
Suggested Legislative Changes
- -- o;f__^>ti.j.-;»*,,,o;»--ujr> ^Ofc-A—(«.»-Ojt;t=34j-a:tsn t
• Create a Tribal funding section
within the current RCRA law that
will help Tribes build and stabilize
solid and hazardous waste programs
and educate communities.
• Amend the Indian Health Care
Improvement Act to make solid and
hazardous waste disposal a priority.
• Amend the General Assistance
Program (GAP) to function in a
manner similar to territories.
Currently, U.S. territories are given
one grant to deal with all EPA
activities. Tribes could be treated in a
similar manner with cooperative
agreements.
• Create a "Treatment As a State"
provision in RCRA.
Suggested Policy Changes
• Enter into cooperative arrangements
with EPA where Federal resources
Continued on page 5, column 1
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Realities ofRCRA on Tribal Lands: Stabilizing the Environmental Health of Indian Country, from page 4
will be transferred to Tribes to
develop regulatory programs.
Prioritize a complete open dump
assessment so that true facts are
found, the full problem is assessed,
and changes are implemented based
on the realities.
Allow Tribes to use GAP money for
solid waste implementation.
Suggested Changes for
Working in the Present System
Courts have ruled that the EPA can
enter into site-specific agreements
with Tribes. So, in theory, EPA
could enter into an agreement with
Tribes that define the cooperative
relationship between the two entities.
That relationship can be published as
Federal regulation and become a site-
specific plan under Part 258 of the
Federal regulations implementing
RCRA.
Currently, the Defense
Environmental Restoration Act
allows Tribes to enter into an
agreement with the Department of
Defense to cleanup DoD sites. Many
people are not aware of this law, but
could use it for cleanup.
Explore alternative grant and funding
opportunities with all Federal
agencies (i.e., Rural Utilities Service,
Department of Agriculture,
Department of Commerce,
Department of Defense, etc.).
• Create a complete database that
details funding opportunities and is
available to Tribes.
The best solutions are still being
sought. TASWER is collecting data
and opinions from Tribes throughout
the country and will issue a publication
that details many of the suggestions
above. For further information contact
Heather Taylor at TASWER,
(202) 331-8084, ext. 226. ©
Pueblo ofTaos Open Dump Cleanup Project, from page 3
The Pueblo of Taos has completed its
closure of the 5.4 acre dump by
utilizing the solid waste closure/post-
closure guidance developed by the EPA
Region VI Solid Waste staff. Technical
assistance and review of the final cover
and post-closure care plan documents
was provided by EPA Region VI Solid
Waste staff.
In September 1999, the Pueblo ofTaos
submitted a Final Closure/Post-Closure
Care Plan to EPA Region VI for
review. By implementing an Open
Dump Cleanup Project, the TPUS
Board brought the Pueblo of Taos into
compliance with 40 CFR 258. The
Tribe plans to implement a solid waste
management plan in association with
the closure project in order to prevent
the degradation of the wetlands and to
protect the bison herd.
The Indian Health Service (IHS), in
cooperation with the Tribe, prepared
plans and specifications for closure of
the existing site. In accordance with the
requirements of the Resource
Conservation and Recovery.Aet-- =- v
(RCRA), the clay cover included a six-
inch erosion layer and an 18-inch
infiltration layer. A low potential for
erosion exists in the constructed cover
(with surface slopes not exceeding five
percent). The cover soil was hauled to
the site because on-site soils were not
adequate to meet permeability
requirements. The final cover was
seeded with native dryland grasses. The
IHS has recommended no monitoring
for methane gas at the site, unless site
or adjacent land uses change. TPUS
completed construction of the open
dump cover in November 1999. Final
inspection of the cover was conducted
by the Pueblo ofTaos Governor, TPUS
Board Chairman, the Tribal
Administrator, the Pueblo ofTaos
Realty Officer, the Pueblo of Taos
Project Manager, the IHS Project
Engineer, construction contractor, and
contractor superintendents.
The Pueblo ofTaos Tribal Council
recently approved a location for the
construction of the transfer station
adjacent to the "old landfill site." The
IHS is assisting the Tribe by finalizing
construction documents specific to that
location, while the project staff is
preparing a bid solicitation and other
documents. The construction of the
transfer station should begin sometime
in early 2001.
For further information contact Anan
Tanbouz, P.E., EPA Region VI, at
(214) 665-8195. *
-------
Working to Address Hazardous Waste Management Issues, from page 1
Fort Hall
Indian Reservation
The Tribes are Kev Stakeholders
In EPA's view, the Shoshone-Bannock
Tribes, as key stakeholders in EPA's
negotiations regarding the LDR facility,
are maintaining a meaningful voice "in
the decision-making process. In fact, at
an April 10,2000, meeting between the
Fort Hall Business Council and EPA,
Elizabeth Cotsworth, Director of the
Office of Solid Waste (OSW),
addressed the Council and said that "as
a result of the Tribes' hard work to
focus EPA's attention on these issues,
the Tribes now play a stronger role in
how EPA regulates the facility. It is
clear that the Tribes have a significant
stake in what happens at the facility.
The Tribes should have a meaningful
and ongoing role in decisions that
impact management and oversight of
the facility, and should be able to
influence decision-making activities
regarding FMC. OSW recognizes that
the Shoshone-Bannock Tribes are a
government with legitimate powers to
regulate their community."
In accordance with this view, EPA
awarded the Tribes a grant for
hazardous waste management program
assistance. The goal of the grant is to
build the Tribes' Hazardous Waste
Management Program capacity through
resource allocation for technical
expertise. The
objectives of the
program include
assuring that the
hazardous waste
treatment plant at
the facility
addresses Tribal
concerns and
gathering data to
assess impacts from
releases on the Fort
Hall Indian
Reservation.
Considering the
history of waste
management
violations at the
facility, the Shoshone-Bannock Tribes
remain concerned about current and
future waste management activities at
the facility - namely, the facility's
continued placement of hazardous
waste~iiTrn¥surf5;e^
during the CBC extension period. The
Tribes also object to the Consent
Decree because it allows the facility to
come into RCRA compliance over a
period of several years and because it
does not dictate that all the ponds must
be excavated at closure, specify waste
treatment methods, or address a broader
range of air pollution reduction projects
beyond those specified in the Consent
Decree.
While the Tribes were offered the
opportunity to become a formal party to
the Consent Decree, the Fort Hall
Business Council (representing the
Tribes) declined to sign the Consent
Decree and passed a Resolution
opposing it. Next, in 1999, the Tribes
filed an appeal of the Consent Decree
(Appeal No. 99-35821) in the United
States Court of Appeals for the Ninth
Circuit. In the appeal, the Tribes'
contend that the United States breached
its trust responsibility to the Tribes in
agreeing to the Consent Decree, and
that the District Court accordingly
should have rejected the Consent
Decree.
However, DOJ argues in its brief that
the record indicates the Tribes' interests
have been considered, and in many
cases substantively addressed, in the
Consent Decree resolving Federal
RCRA violations at the facility. DOJ
also argues that the District Court,
which accepted the Consent Decree,
properly ruled that the United States
met its trust responsibility to the Tribes
in this case because the government
consulted with the Tribes throughout
the negotiations and accommodated
their requests whenever possible in
setting the terms of the final settlement.
On October 5, 2000, the Ninth Circuit
Court of Appeals issued an order
denying the Tribes' request to review
the District Court's acceptance of the
Consent Decree. The Tribes have since
appealed the order of the Ninth Circuit
in hopes of having their case heard by
the U.S. Supreme Court.
_ ,v ,; . _-.—*? «-•—• _"*** -r-r-'W-r'--., • v^.- iSS, -•.?_ ^a
EPA to Finalize Consultation Principles
Clearly, the Tribes, EPA, and facility
owners and operators each have their
own opinions about the waste
management issues at the facility.
However, to better address the Tribes'
concerns in the future and to ensure that
they continue to have a meaningful
voice in decision-making activities,
EPA is finalizing its consultation efforts
with the Tribes. This effort includes the
development of new consultation
principles by EPA and the Tribes. Once
finalized, the consultation principles
will be embodied in a Memorandum of
Understanding (MOU) between EPA
and the Tribes. The MOU will guide the
decision-making process as the facility
implements the Consent Decree and
requests a renewal of the one year CBC
extension.
For more information, please contact
Linda Meyer, EPA Region 10, at
(206)553-6636. #
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Cooperative Agreement Between Pueblo of Laguna
and New Mexico Forges UST Partnership
On June 21, 2000, the New
Mexico Environment
Department (NMED) and the
Pueblo of Laguna (Pueblo), through its
Environmental Department
(Department), signed a cooperative
agreement to jointly address a leaking
Underground Storage Tank (UST) site,
with an estimated remediation cost of
over $1 million. The agreement
addresses two areas of concern: 1) a
long-standing, private non-Indian
owned convenience store with leaking
An underground storage tank undergoing removal.
USTs located on reservation land; and
2) an adjacent, non-reservation property
potentially containing additional
sources of hydrocarbon releases that
may be commingling with the
contamination from the USTs. The key
aspects of the agreement include:
1) joint administration and enforcement,
which allows preservation of Tribal
jurisdiction; 2) reimbursement for
eligible costs; and 3) technical
assistance from the State in developing
a Tribal UST program.
There are several advantages to using
cooperative agreements to address
cleanup of leaking USTs. One very
positive aspect, according to
Dan Rey-Bear, legal representative of
the Pueblo, is that the "Tribe retains
sovereignty." The agreement achieves
this mainly in two ways. First, Rey-
Bear notes, it typically provides for less
State administrative oversight than
other types of approaches, such as a
joint powers agreement. Second, it
provides for joint enforcement and
administration of site activities, such as
inspections, permitting, corrective
action, and legal action pursuant to
State and Federal law as well as future
State, Tribal, and
Federal laws that
may be enacted.
For example, the
agreement states
that "while this
agreement is in
effect, the NMED
and the
Department shall
jointly pursue
enforcement
actions for
violations of
Federal, Tribal, or
State laws and/or
regulations
concerning UST sites at Laguna Mart
and adjacent source properties."
Joint enforcement is very important at
this site due to its associated
jurisdictional issues. For instance, the
agreement deals with contamination on
reservation land caused by a non-Indian
business, and potential contamination
from adjacent non-reservation land.
Because the contamination occurs near
the jurisdictional boundary line between
the Tribes and the State, the agreement
recognizes that it is "highly likely that
releases of pollutants in either
jurisdiction will affect the other..." As a
result, the agreement creates a State-
Tribal partnership to prevent
contamination and restore resources in
either jurisdiction.
The cooperative agreement is also a
tool that helps secure payment for
corrective action. Seeking out
potentially responsible parties and
attempting to recover funds can be a
lengthy, costly, and often fruitless
endeavor. Consequently, the
cooperative agreement contains
language that ensures reimbursement
from the State's Corrective Action Fund
(the Fund) provided certain criteria are
met.
The agreement states that, "the owners
and operators of UST sites located at
the Laguna Mart and adjacent source
properties shall be eligible...to apply to
NMED for and receive from the [Fund]
reimbursement for eligible costs of
approved corrective actions, including
investigation, monitoring, and
remediation, under the same terms and
conditions as owners and operators of
USTs located within the State's
jurisdiction." The reimbursement
criteria are as follows: 1) the owner/
operator provides proof that he/she has
paid all required UST fees; 2) NMED
issues a written compliance
determination that the owner/operator
of the relevant UST site is eligible to
use the Fund; 3) the owner/operator
satisfies Fund requirements and
provides any required information to
both parties; 4) the owner/operator
complies with the general requkements
of the Fund; and 5) the owner/operator
allows joint access within normal
business hours for inspections,
evaluations, and observations.
Another important benefit of
cooperative agreements is that they help
Continued on page 8, column 3
-------
Jicarilla Apache Tribe and New Mexico
Sign Cooperative Agreement on
Underground Storage Tanks
The Jicarilla Apache Tribe signed
a cooperative agreement with
the State of New Mexico, on
June 15,2000, to address two leaking
Underground Storage Tank (UST) sites
left by prior owners with an estimated
remediation and cleanup cost of
$50,000 to $100,000. The agreement
covers land at the Lodge at Chama
(Lodge), located outside of the Tribal
boundary, but owned by the Tribe
pending trust acquisition. Specifically,
the agreement provides for joint
regulatory authority for USTs between
the Tribe and State. The joint authority
includes administration and
enforcement, collaboration and training,
and reimbursement from the corrective
action fund (Fund). This agreement
provides an effective working
partnership to combat the pervasive ~
UST problem that occurs in New
Mexico's Indian Country.
LcjlkingLUSTs are a Major Issue
USTs are the primary method of fuel
storage for gasoline service stations.
The EPA estimates there are about
720,000 Federally-regulated USTs
buried at approximately 280,000 sites
nationwide. Experts familiar with
Leaking Underground Storage Tanks
(LUSTs) in New Mexico's Indian
Country agree they are a major concern.
Cost estimates can vary depending on
site-specific conditions but are
generally in the range of $10,000 for
small cleanups and range from
$100,000 to over $1,000,000 where
corrective action is needed to address
groundwater contamination.
Benefits of the Agreement
According to Dan Rey-Bear, legal
representative for the Jicarilla Apache
Tribe, there are at least four reasons that
such cooperative agreements can be
advantageous to Tribes: 1) avoiding
jurisdictional issues (e.g., litigation
costs and associated delays);
2) securing payment for corrective
action; 3) developing Tribal regulatory
programs through capacity-building
relevant to Tribal needs; and
4) developing cooperative relationships
in order to deal with issues
constructively and avoid litigation.
Program capacity issues have
challenged many jurisdictions faced
with UST issues. While the Tribal
regulatory program is one of the oldest
in the region, they currently have no
UST program. The cooperative
agreement has provisions that attempt
to meet this challenge by offering
technical assistance and training.
~~Under the terms of the agreement, the
Tribe's Environmental Protection
Office, that has the requisite technical
background, will attend 10 hours of
workshops, seminars, and conferences a
year offered or recommended by EPA
or New Mexico's Environment
Department. The courses will include
UST regulation, installation, operation,
removal, corrective action, and/or
Corrective Action Trust Fund
reimbursement. Such training can help
Tribes develop the capacity relevant to
specific Tribal needs.
The agreement, which remains in effect
until completion of corrective action at
the Lodge, provides for joint
administration and enforcement. In
addition, the agreement emphasizes full
cooperation, assistance, and
consultation between the State and
Tribe. This partnership will help
address a major challenge, and if
successful, is an effective approach to a
common issue on Tribal lands today. ©
Pueblo of Laguna, from page 7
Tribes develop their regulatory
programs and build capacity to meet
specific needs. The agreement
encourages the Tribe to use the NMED
for technical assistance: "...NMED
possesses technical expertise in
environmental management of USTs
and remediation of pollutants, and the
Pueblo desires the assistance of NMED
in developing the Department's
capacity regarding those matters
through cooperative efforts concerning
UST regulation." Put simply, these
terms require the State to assist the
Pueblo, should it so desire the
assistance, in developing its UST
management and remediation program.
To further assist the Tribe with
technical issues (outside the cooperative
agreement), a cooperative relationship
between the Laguna and the All Indian
Pueblo Council's Pueblo Office of
established. The agreement also
requires the Pueblo to identify a
qualified UST coordinator with
appropriate technical background or
experience and provides training for
that individual in the form of
workshops, seminars, conferences, and/
or other formal training sessions. The
UST coordinator must take 10 hours of
such seminars a year that are offered or
recommended by EPA or NMED.
Cooperative agreements between States
and Tribes are an effective tool to
facilitate State involvement in cleanup
while still respecting Tribal sovereignty.
They go a long way in addressing and
securing the basic objective of cleaning
up leaking USTs on Tribal lands while
helping Tribes avoid litigation costs and
associated delays. Cooperative
agreements help alleviate tensions
associated with jurisdictional issues and
the result is a collaborative approach to
address this common environmental
problem in Indian Country. ^
For additional information qn these agreements, please contact:
| Dari Rey-Bear, of Nordhaus, Halton, et al.?
at (505) 243-4275_or dreybear@nordhauslawxom.
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Gila River Indian Community Waste Team's
Integrated Waste Management Approach
Under an integrated waste
management approach, the
Gila River Indian Community
Department of Environmental Quality
(DEQ) developed a highly effective
"Waste Team" concept for addressing
waste and emergency response issues.
While specific program activities are
often conducted by various components
of the team, team members share
information, expertise, and work
together on a wide range of activities.
These activities encompass the
following five areas:
• community outreach and education;
• chemical emergency response;
• hazardous waste management;
• solid waste management; and
• underground storage tank
management.
Each of these areas is discussed briefly
below.
Community Outreach
and Education
One of the most important aspects of
the Integrated Waste Management
Program at the Gila River Indian
Community (GRIC) is outreach and
education. All Waste Team members
are involved in these activities,
including: 1) attending community
meetings held in seven districts;
2) visiting and partnering with schools;
3) visiting elderly citizens to explain
program activities; 4) contributing
articles to the Gila River Indian News
(GRIN) bi-weekly newspaper; and
5) presenting quarterly and ad hoc
reports to the Natural Resources
Standing Committee of the Tribal
Council.
Chemical Emergency Response
Several sources of potential chemical
emergencies confront the GRIC. These
sources include numerous facilities
within the Community and major
transportation routes such as Interstate
10 and the Riggs Road corridor
between Phoenix and Casa Grande. The
Community has made Chemical
Emergency Response Preparedness a
high priority and established a Tribal
Emergency Response Commission in
the early 1990s. Since the establishment
of the DEQ in 1995 and the awarding
of an EPA Chemical Emergency
Preparedness and Prevention Tribal
Assistance Grant (CEPPO-TAG) (used
to create a full-tune Emergency
Planning and Community Right-to
Know Act (EPCRA) coordinator
position), the newly named Chemical-
Tribal Emergency Response
Commission (C-TERC) has been a
successful and active element in
Community chemical preparedness.
Over the past two years the C-TERC
confirmed a protocol for chemical
emergency incident response developed
by the DEQ, the fire department, and
emergency management officials. This
protocol proved to be exceptionally
effective in a range of chemical
emergencies including an off-
Community spill involving nitric acid
in 1999. This major incident involving
several jurisdictions and over 600
evacuees, including over 300
Community members. The C-TERC has
also responded to fires and chemical
releases at facilities in the Community's
industrial parks.
RCRA Subtitle C
Hazardous Waste Management
GRIC is experiencing profound growth
both internally and on its borders. In
addition, with financial resources
available through gaming and other
enterprises, the Community and three
industrial parks are continually
approached by businesses and
industries that would like to use sites
within the Community. An assessment
completed by DEQ identified: seven
large quantity generators (LQG); six
small quantity generators (SQG); one
treatment, storage, and disposal facility;
47 used oil generators; and 37 facilities
categorized as conditionally exempt
small quantity generators (CE-SQG). It
is anticipated that the number of RCRA
hazardous waste facilities will increase
significantly in the future.
As part of DEQ's efforts to build
Hazardous Waste Program capacity, it
took measures to develop a Hazardous
Waste/Corrective Action ordinance.
The ordinance will transcend hazardous
waste by including hazardous materials.
DEQ believes this approach will reduce
some of the enforcement concerns
associated with Comprehensive
Environmental Response,
Compensation and Liability Act
(CERCLA) and Underground Storage
Tank (UST) issues. Another approach
to reducing some of the enforcement
concerns is the removal of certain
exceptions and exemptions from the
definition of solid waste and hazardous
waste. DEQ is also contemplating not
allowing certain classes of facilities to
operate on Community land and making
CE-SQG requirements more stringent
than the Federal requirements in 40
CFR Section 261.5. Examples include:
Continued on page 10, column 1
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Gila River Indian Community "Waste Team" Integrated Waste Management Approach, from page 9
not allowing hazardous waste transfer
stations on Community land;
considering waste associated with
mining operations as hazardous waste if
the waste exhibits the toxicity
characteristic based on the Toxicity
Characteristic Leaching Procedure
(TCLP) standards; and not allowing
recycling of wastes originating off-site,
except at permitted treatment, storage,
and disposal faculties (TSDFs). DEQ
staff are currently reviewing the
applicable regulations in 40 CFR and
are compiling a list of changes that may
be incorporated into the ordinance.
Notwithstanding that public law 1
precludes RCRA programs from being
delegated to Tribes, the GRIG
ordinance will meet delegation
requirements. - :; •'-'-
RCRA Subtitle D
Solid Waste Management
The growth of the Phoenix metropolitan
area on the Community's northern
boundary has resulted in accelerated
illegal dumping activities along that -
boundary. There is also residual surface
debris from dumping that occurred
within the Community prior to the
establishment of scheduled trash and
garbage pickup. Through its
Community outreach, and with
direction from the GRIG Administration
and Council, the DEQ made solid waste
cleanup a high priority.
The DEQ initiated a Cleanup Campaign
in 1998, which pulled together
departmental cleanup and enforcement
activities. The Department of Public
Works, with support from the DEQ,
developed a "beautification program"
for the entire Community that is
intended to start the process of cleaning
up certain problem areas. As a start,
Public Works developed a bulk pick-up
program for the Community. Residents
can now call Public Works and
schedule a truck to pick-up large items
that do not fit in trash bins. The DEQ
Waste Team and Cleanup Campaign
supports and works in conjunction with
the beautification program. The DEQ
Waste Team includes personnel funded
by the initiative and complementary
department personnel. The Team
developed an initial five-year cleanup
schedule to remove all historic debris,
cleanup the boundary areas, and
substantially reduce the incidents of
continued dumping, especially at the
boundary; The DEQ inventoried and.™ .
assessed dumping areas and prioritized
them for cleanup. '•"-"^ •.:. "v
Based on the success.of current
, Cleanup Gampaign activities, the initial
five-year schedule has been reduced to
a three-year time-frame. As part of the
Cleanup Campaign^ the. Waste Jeam
^coordinates cleanups with other
Community programs and with adjacent"
local governments and industry.
RCRA Subtitle I Underground
Storage Tank Management
- All USTs in the Community including
Tribal, private, and Federal USTs are in
full compliance with the EPA,
December 22, 1998" deadline. Because
existing lists were old and incomplete,
the GRIG DEQ staff spent considerable
time_researching all the UST sites
within the Community. Staff
interviewed knowledgeable individuals
to pin down the location of a number of
sites identified through previous
outreach efforts. In two cases, the DEQ
had to hire a UST locator firm to
pinpoint the exact location of USTs. In
addition, DEQ staff spent considerable
time researching old BIA lease records
at the Pima Agency Realty Office in an
attempt to determine the operators of
many of these old UST sites. This
research led to a cost recovery in at
least one case.
Prior to removal work, DEQ personnel
conducted research regarding UST
removal contractors' cost and work
performance. A total of 32 USTs have
been removed. DEQ provided or
procured funding for 20 of the USTs
and four site characterizations. Costs
for removal averaged approximately
$2,000 per tank. This is far below the
$5,000 to $10,000 that it usually costs
to remove a tank. The significantly
reduced costs enabled the Community
and other entities to remove the USTs
and become one of the few jurisdictions
-in the country to meet the EPA,
December 22, 1998, deadline.
GRIG DEQ conducted preliminary
characterizations at all sites with
indications of contamination during the
removal process. Eleven.USTs had
.documented soil contamination. Of
'those USTs4 three had indications of
groundwater contamination. For the
eight USTs with only soil
contamination, the contaminated soil
was removed under DEQ oversight.
During soil removal, DEQ conducted
sampling to ensure levels of
contamination were protective of
human health and will preclude
subsequent groundwater contamination.
DEQ kept EPA Region IX UST
personnel apprised of the work and
approved the remedial work. USTs with
preliminary indications of groundwater
contamination will be further character-
ized to determine the lateral and vertical
extent of groundwater contamination.
Soil removal and remediation planning
to remove sources of groundwater
contamination is in the preliminary
stage. A phased approach for
characterization of the groundwater
contamination is also in the preliminary
stage. ^
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Tribal Perspectives on RCRA National Meeting
State, Tribal, and Federal
regulators convened, along
with public and private
stakeholders, for a meeting on the
Resource Conservation and Recovery
Act (RCRA). This "National RCRA
Program Meeting" was held at the Hyatt
Regency Capitol Hill Hotel in
Washington, DC on August 15-18,
2000. There were over 800 registered
parties at the meeting — by far the
largest National Meeting yet. The
meeting included two plenary sessions
and 77 breakout sessions. Compared to
the last meeting, there were
significantly more sessions. An added
feature this year was the "meet the
speaker" poster sessions. Also, there
was an Environmental Indicators
Forum, opened to public interest and
private sector participants.
Significantly, Tribal issues were on the
agenda, starting with the opening
plenary session.
The plenary session included a
presentation by Marcie Phillips,
Environmental Manager of the
Shoshone-Paiute Tribes of Duck Valley
and Vice Chair of the Tribal
Association on Solid Waste &
Emergency Response (TASWER), who
addressed conference attendees during
the opening plenary session. "Tribes
are many years behind States in the
development of RCRA programs, but
we confront very serious waste
management challenges," she said.
Ms. Phillips also stated that, "EPA is
now working with Tribes to support our
efforts." A Tribal member from Alaska
was enthusiastic about Ms. Phillips'
remarks, especially since she raised
issues facing Alaskan Natives. This is
especially important, it was noted,
because there are major open dump
issues that Alaskans want to tackle.
Tribal land in Alaska has a different
status than that in the lower 48 states -
making it more difficult to obtain
funding to address these challenges.
Another participant said that it is
important for the Tribes and Tribal
organizations to be informed about
State and Federal RCRA policy. For
example, Rebecca Ware,
Environmental Director for the
Delaware Nation of Oklahoma, stated
that, "as TASWER begins to express its
concerns as a unified group, it is
imperative that as many Tribes as
possible be informed about current
RCRA policy and procedures. This
conference provided the format for
Tribal personnel to understand the
national trends. It gave the regular
RCRA conference attendees an
opportunity to understand some of the
problems Tribes encounter in their solid
waste management programs."
A wide choice of breakout sessions
gave everyone a chance to listen to their
area of interest interspersed with "a
brimming basketful of new ideas,"
according to Ware. The EPA Office of
Solid Waste (OSW) Tribal Waste
Management Program held two
sessions during the meeting — one on
the Interagency Open Dump
Workgroup and one on the Tribal
Hazardous Waste Management
Program. The Interagency Open Dump
Workgroup session featured speakers
from several Federal agencies
participating in an effort to close open
dumps in Indian Country. In fiscal year
(FY) 1999, the interagency effort
funded 11 projects totaling $1.6 million.
In FY 2000, $2.4 million in funding
went to seven new projects while four
of the FY 1999 projects received
additional funds. Federal agency
representatives made a commitment to
continue working together and helping
Tribes address the problems associated
with open dumping on Indian land.
(Please refer to the "Federal Agencies
Unite" article on page one for more
information on this interagency effort.)
The Tribal Hazardous Waste
Management Program session featured
a presentation by Dan Marsin, the
Hazardous Waste Program Manager for
the Gila River Indian Community
(GRIG). Mr. Marsin described the
extensive hazardous waste management
challenges for the GRIC Department of
Environmental Quality and how EPA
grants support Community efforts to
improve waste management. The GRIC
is in the final stage of a three year
"Integrated Waste Management" grant
funded by EPA's OSWER. The session
also provided attendees an overview of
the Tribal Hazardous Waste
Management Grant Program. This
program, managed by EPA's Office of
Solid Waste, provides $300,000 each
year for grants to Tribes facing
hazardous waste management
challenges. Funding went to three
projects in FY 1999 and four in
FY 2000.
Attendance at these sessions exceeded
all expectations and resulted in a
"standing room only" situation.
Beyond the opportunity to obtain
critical substantive knowledge of the
programs, participants had many
valuable opportunities to engage and
network with their Federal and State
counterparts. Ware emphasized that,
"interagency cooperation is the only
way we can continue to address RCRA
problems." Moreover, she believes that
the networking that developed during
the conference will be "an invaluable
tool as we seek to control the Garbage
Gremlin" on Tribal lands.
EPA's Office of Solid Waste is looking
forward to Tribal participation at future
RCRA National Meetings. For further
information contact Luke Jones, EPA
Headquarters at (703) 605-0728. #
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TASWER Holds Second Annual Conference
The Tribal Association on Solid
Waste and Emergency
Response (TASWER) held its
2nd Annual Conference in Miami,
Oklahoma, home of the Tar Creek
Superfund Site. This event was hosted
by the Quapaw and Miami Tribes of
Oklahoma.
Laura Weber, Chair of the TASWER
Board of Directors noted that, "It is
important for our members to come
together and see different examples of
environmental devastation." Attendees
were able to visit the Tar Creek
Superfund Site first hand and learn
about emergency response issues facing
Indian Country and Alaskan Native
Villages.
The keynote speaker of the event was
Mr. Michael Shapiro, Deputy Assistant
Administrator of EPA/s.Office of J3olid_:
Waste and Emergency Response
(OSWER). Mr. Shapiro expressed his
Missouri
Springfield
Tar Creek
Site Location
Kansas
Ottawa
0 County
"Barflesvilfe
Tulsa
Oklahoma
dedication to Indian Country and
Alaskan Native Village environmental
issues and his excitement about the
future partnerships that will occur
between Tribes and the EPA.
Attendees were charged with selecting
new members to staff the Board of
Directors, as well a new officers.
_Fgr more uifomatifln^pjlease yisit^ .
TASWER''rweb-'site"at: •"-"""" ^
http://www.taswer.org. ®
2000/2001
Board of Directors and Officers
Chair: Laura Weber,
St. Regis Mohawk
Vice-Chair: Marcie Phillips,
Shoshone-Paiute Tribes
Secretary: Lydia Olympic,
Igiugig Native Village
Treasurer: Gerald Wagner,
Blackfeet Nation
Steve StillweU,
Poarch Creek Band of Indians
Roy Spoonhunter,
Prairie Potawatomi Reservation
Jan Stevens,
- Sac & Fox Nation of Oklahoma
Dino Chavarria,
Santa Clara Indian Pueblo
Kenneth Yazzie,
Wells Band of Te-Moak Tribe
Delano "Satch" Miller,
Warm Springs Reservation
CynmiaPitot, _ ^
Louden Tribal Council—
Nativa American Networkls published by the U.S. Environmental Protection Agency, Office of Solid Waste. The views expressed in Native American Network are those of
tha authors, and do not necessarily reflect or represent EPA policy. Providing Tribes with information about OSWER programs and related activities is the purpose of the
Native American Network. Contact us with your ideas for future articles, or submit your own articles for publication.
Editor: Luke Jones (703) 605-0728
U.S. Environmental Protection Agency
Office of Solid Waste (5303W)
Anal Bios Building
1200 Pennsylvania Ave., NW
Washington, D.C. 20460
Official Business
Penalty for Private Use
$300
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