oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER. 9610.15
TITLE: UST/LUST National Native American Lands
Policy Statement
APPROVAL DATE:
EFFECTIVE DATE:
JUL -7 !9£
JUL - 7 1993
ORIGINATING OFFICE: Office of Underground
(2 FINAL St°rage Tanks
D DRAFT
STATUS:
REFERENCE (other document8):OSwER Directive 9610.07=
UST Program Indian Lands Strategy for FY 88 and 89 and
Guidance for Regional Pilot Projects, March 14, 1988.
OSWER Directive 9610.9 - Interim Guidance on Conducting
Federal-Lead Underground Storage Tank Corrective Actions
for Petroleum Releases on Indian Lands, July 31, 1989.
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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s>EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER: 9610.15
TITLE: UST/LUST National Native American Lands
Policy Statement
APPROVAL DATE: JUL - 7 1993
EFFECTIVE DATE: JUL -7 !9b3
ORIGINATING OFFICE: office of Underground
Q FINAL
D DRAFT
STATUS:
REFERENCE (other documents):0swER Directive 9610.07=
UST Program Indian Lands Strategy for FY 88 and 89 and
Guidance for Regional Pilot Projects, March 14, 1988.
OSWER Directive 9610.9 = Interim Guidance on Conducting
Federal-Lead Underground Storage Tank Corrective Actions
for Petroleum Releases on Indian Lands, July 31, 1989.
OS WER OS WER OS WER
'E DIRECTIVE DIRECTIVE Dl
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Unlieu olalcS CnVironiTiCniat r roi€Cllun MQCnCy
Washington, DC 20460
OSWER Directive initiation Request
1. Directive Number
9610.15
2. Originator Information
Name of Contact Person
William Lienesch_
Mail Code
OS-410WF
Office
OUST
Telephone Code
703-308-8873
3. Title
UST/LUST National Native American Lands Policy Statement
4. Summary of Directive (include brief statement of purpose) xhe purpose Of this directive is tO State policy '
and provide guidance concerning the implementation of the UST/LUST program on Native
American Lands. An implementation strategy is defined. A variety of activities
that Regions and Native American Tribes can undertake are discussed.
5. Keywords
eywords
Native American Lands, Underground Storage Tanks
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
Yes
JL
No
This Request Meats OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Beverly Ihomas, OUST Djtffectives Coordinator
Date
tO. Name and Title of Approving Official
David Ziegele, Director1,'
EPA Form 1315-17' (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL -7 1993 OFF.CEOF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM OSWER DIRECTIVE 9610.15
SUBJECT: UST/LUST National Native American Lands Policy
Statement
V>«- UJ^V\-~
FROM: David W. Ziegele, Direct
Office of Underground StoMge Tanks
TO: UST/LUST Regional Branch Chiefs
UST/LUST Regional Program Managers
Attached is the final policy statement concerning the
implementation of the UST/LUST program on Native American Lands.
We received comments on the draft policy statement from six
regions, the Office of Enforcement and the Office of General
Counsel. Based on those comments, we have made several changes
to the draft policy statement. Most of these changes involve
clarifying information in the draft policy statement, although
entirely new information is provided in a few cases including a
new section on funding.
Some of the comments dealt with issues broader than the
UST/LUST program that are best addressed on an agency-wide basis.
We will provide addition guidance, if necessary, as these issues
are resolved.
Please let me or Bill Lienesch know if you have any
questions. Bill can be reached at (703) 308-8873.
Printed on Recycled Paper
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OSWER DIRECTIVE 9610.15:
UST NATIONAL NATIVE AMERICAN LANDS POLICY STATEMENT
Over the past five years, EPA and tribes have been
implementing the Underground Storage Tank (UST) program (RCRA
Subtitle I) on Native American lands. During that time, and
consistent with the flexibility built into the design of the UST
program, a variety of approaches have been used to implement
various aspects of the UST program as it affects tribal lands.
The purpose of this document is to build on that experience and
provide direction and a set of priorities to EPA regional offices
for tho coming years.
At the federal level, the resources to implement the UST
program on Native American lands have been limited and, given the
current federal budget constraints, are unlikely to increase
dramatically. Nevertheless, EPA is committed, as discussed
below, to achieve the goal of protecting human health and the
environment on tribal lands.
BACKGROUND
Federally recognized Native American tribes are sovereign
entities subject to federal laws. Underground storage tanks
located on tribal lands generally are not subject to state laws.
As a result, unless a state acts as a tribe's agent pursuant to a
formal agreement with a tribe, EPA and the tribe are responsible
for implementing and enforcing the UST program on tribal lands.
There are approximately 6,000 tanks on Native American
lands. While some USTs are found on tribal lands in every region
except Region 3, the majority of tanks are found in Regions 5, 6,
8, 9, eind 10. Region 8 has more tanks on tribal lands than any
other region. Excluding Native American villages in Alaska,
Region 9 has more Native American tribes than any other region.
Approximately 60% of the tanks on Native American lands in Region
9 are on Navajo lands.
GOAL
The over-riding goal of the implementation of the UST
program on tribal lands is to protect human health and the
environment. More specifically, the goal is to bring all tanks
on tribal lands into compliance so as to prevent future leaks and
to cleanup existing leaks. As discussed in greater detail below,
this will be accomplished through direct federal implementation,
The term UST program as used throughout this document
includes both the regulatory or preventative program and the
leaking underground storage tank or LUST program.
2 The terms Native American, Indian, tribal and reservation
lands e.re used interchangeably in this document
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OSWER DIRECTIVE 9610.15
by building the capability of selected tribes, and by
facilitating agreements between tribes and states.
This goal is consistent with EPA's and OSWER's policy on
environmental equity. As stated in the July 22, 1992 OSWER
Environmental Equity Initiative; "OSWER strives to ensure that
its programs provide protection from risk equitably across all
populations." The Initiative further states that: "OSWER is
committed to promoting awareness and sensitivity to environmental
equity concerns and translating that awareness into positive
action to address those concerns through the implementation of
its programs."
OBJECTIVES
The objectives of the UST/LUST National Native American
Lands Policy are to:
1. maximize coordination with Native American tribes
in all activities in accordance with EPA's Indian
Policy;
2. improve the existing data on tank populations and
characteristics;
3. clean up sites primarily through oversight of
responsible party financed cleanups and, where
appropriate, through selected tribal-lead, state-lead,
and/or federal-lead cleanups using the LUST Trust Fund;
4. as appropriate, provide direct federal implementation
of the federal underground storage tank regulations;
5. facilitate development of tribally run self-sustaining
regulatory and clean-up programs based on willingness,
authorities and funding; and
6. promote the involvement of other agencies and
organizations, including the Bureau of Indian Affairs
and the Indian Health Service, to make their resources
more available to Native American Tribes for
environmental protection and to leverage their
resources on site. This includes facilitating the
negotiation of formal agreements between tribes and
state UST programs.
IMPLEMENTATION STRATEGY
EPA Regional Offices are responsible for ensuring the
implementation of the UST program on Indian Lands. In general,
there are three approaches for implementing the UST program on
Indian Lands. First, regions are encouraged to work with
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OSWER DIRECTIVE 9610.15
selected tribes that have or can develop the capability to
administer the UST program on their tribal lands. This approach
is consistent with EPA's "Policy for the Administration of
Environmental Programs" on Indian Reservations which was signed
by Administrator William D. Ruckelshaus on November 8, 1984. The
policy states in part: "The Agency will take affirmative steps to
encourage and assist tribes in assuming regulatory and program
management responsibilities for reservation lands. The Agency
will assist interested tribal governments in developing programs
and in preparing to assume regulatory and program management
responsibilities for reservation lands." Underground Storage
Tank program development work has already begun through Region 9
with the Navajo Nation and other regions have begun or are
contemplating similar efforts. Region 6, for example, rather
than focusing primarily on individual tribes has been working
with a consortium of pueblos in New Mexico and with a consortium
of tribes in Oklahoma.
Second, regions also are encouraged to facilitate the
negotiation of tribal-state agreements where possible. This may
be particularly advantageous in those cases where the tribe and
state have or can develop a good working relationship and where
there are relatively few tanks on tribal lands. Regions are
responsible to ensure that such agreements result in protection
of human health and the environment.
Finally, in those cases where it is not possible for the
tribe 1:o develop its own program or to negotiate a tribal-state
agreement, the region will continue to be responsible for program
implementation. In such cases, the regions have the
responsibility to establish and manage a basic UST program using
available resources.
Ariong the activities that a region must ensure get
accomplished using one of the three methods outlined above are:
1. receive notifications and certifications of
installations of new UST systems;
2. answer calls reporting releases, including suspected
releases, spills and overfills, and confirmed releases;
3, receive reports of corrective actions taken or planned
including initial abatement measures;
4. receive free product removal reports and determine the
practicable extent for free product removal; and
5. receive notifications prior to permanent closure or
change-in-service.
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OSWER DIRECTIVE 9610.15
These and other activities are described in the Transition
Strategy (OSWER Directive 9610.5) and Transition Task List (OSWER
Directive 9610.5-1). Even in those cases where a tribal program
is developed or a tribal-state agreement is signed, the region is
still responsible to ensure that the basic UST requirements are
met and all activities are conducted in accordance with EPA's
Indian Policy.
ACTIVITIES
There are a wide variety of activities that can be
undertaken to further implementation of the UST program on Native
American lands. These activities will be pursued with
appropriated LUST monies and with personnel funded by both the
UST and LUST appropriations. The specific activities pursued in
any region will depend on factors such as the number of tribes,
their existing and potential ability to implement the program,
number of tanks on tribal lands, and emergency response needs.
Below is a list of activities that in general are high priority.
Regions should select from among these and amend them as needed
to achieve the highest possible success generally and
specifically as applied to any tribal nation.
1. Tank Inventory: update the tank inventory on Native
American lands consistent with the October 2, 1992
memorandum on the "Inventory of USTs on Indian Lands";
2. Outreach: continue and expand, where possible, efforts
including circuit riders, information dissemination,
training, and information seminars;
3. Corrective Action: ensure that corrective actions occur
in a timely fashion. Regions are to oversee
responsible party-lead corrective actions to ensure
that appropriate corrective actions proceed at all
sites. When necessary, regions also are responsible
for directing federal-lead corrective actions on a
priority basis consistent with OSWER Directive 9610.9
(Interim Guidance on Conducting Federal-Lead
Underground Storage Tank Corrective Actions for
Petroleum Releases on Indian Lands);
4. Streamlining: examine corrective action and other
regional Indian lands-related processes to determine
ways to streamline and make those processes more
effective and efficient consistent with OSWER Directive
9650.13 (Streamlined Implementation of UST Corrective
Action Requirements);
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OSWER DIRECTIVE 9610.15
5. Enforcement: ensure adequate enforcement consistent
with the UST program's emphasis on voluntary
compliance. Regions are encouraged to use field
citations where appropriate and to follow applicable
guidance, including the Office of Enforcement's
memorandum on "Interim Guidance on Review of Indian
Lands Enforcement Actions" (October 21, 1992),
concerning appropriate enforcement responses for
tribally owned and/or operated facilities;
6. Program Development: identify opportunities for and
facilitate development of tribally administered
regulatory and clean-up programs, including those
administered through tribal consortia, based on tribal
willingness, authorities and funding; and
7. Tribal-State Agreements: facilitate negotiation of
tribal-state agreements for those tribes expressing an
interest in such agreements. Regions also should enter
into three-party agreements with tribes and states as
appropriate.
While a variety of activities can and will be undertaken,
regions are still responsible for ensuring that program
priorities are pursued. The priorities for the UST program are
corrective action streamlining, leak detection compliance and
enforcement, and state program approval. The first two of these
are directly applicable to the UST/LUST program on tribal lands.
Formal state program approval under Subtitle I of RCRA is not
applicable in the form that it currently applies to states.
Tribal program development, which was discussed under
Implementation Strategies, is comparable to state program
development prior to the approval process. Direct tribal program
development is one of the implementation approaches listed above
that r€»gions are encouraged to pursue with interested tribes.
The nature and extent of a tribal program will vary considerably
depending on such factors as the number of tanks, funding
sources;, and experience with other environmental programs.
Regions will need to work with tribes and tribal consortia to
help develop a program most applicable to the tribes' needs,
preferences and capabilities.
FUNDING!
In recent years, Congress has been appropriating $500,000 to
implemcmt the UST program on Indian lands in the Leaking
Underground Storage Tank Trust Fund appropriation. The vast
majority of these funds have been spent by the regional offices
for direct implementation activities such as registering tanks,
overseeing corrective action by responsible parties, and
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OSWER DIRECTIVE 9610.15
conducting cleanups where responsible parties were unknown or
unable to do the corrective action. The Resource Conservation
and Recovery Act, as amended, presently contains no provision for
directly funding tribal UST programs in the same manner that
state programs are funded.
CONCLUSION
This policy statement is consistent with the UST program's
policy of flexibility in program development and implementation
by state, local and tribal governments. Regions have the ability
to achieve UST program goals and objectives by undertaking a
variety of activities. The selection of specific activities is
at the discretion of the region and will be based on the needs
and capabilities of tribes and tribal consortia. Although
existing and potential future federal resources for program
implementation are limited, EPA is committed to achieving
protection of human health and the environment. EPA also is
committed to supporting tribally administered programs that can
be operated with their own authorities and funding, working with
tribal consortia, and serving as a facilitator for development of
tribal-state agreements as appropriate.
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