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DIRECTIVE NUMBER: 9610.15A
TITLE: Interim Final National Policy Statement for
Underground Storage Tank Program Implementation
in Indian Country
APPROVAL DATE: C:T /3
EFFECTIVE DATE: : "> '9SJ
ORIGINATING OFFICE: Office of Underground
Storage Tanks
O FINAL
D DRAFT
STATUS: Interim Final
REFERENCE (other documents): OSWER Directive
9610.9A-Interim Final National Corrective Action Policy
for USTs in Indian Country. OSUER Directive 9610.15 -
UST/LUST National Native American Lands Policy Statement
OS WE Ft OSWER OSWER
'E DIRECTIVE DIRECTIVE Dt
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&EPA
Unned Suit* tf*''rofim«nlaJ Prelection Agency
v DC
OSWER Directive Initiation Request
9610/15A
2- OrlQlnitor InformaOcft
Narrw of Contact
William Liervisch
Code
^02 W
Office
OUST
Telephone Cod*
703 30^--873
3 Tit*
Interim Final National Policy Statement for Underground Storage Tank Program
Implementation in Indian Coountry
«. Summary ofOireorve (include bnef statement of purpose) ,_ . .
The purpose of this Directive is to state policy
and provide guidance concerning implementation of the underground storage tank program
in Indian Gxjntry. Implementation approaches and a variety of activities that regions
ca;i undertake are discussed.
5. Keywords
Underground Storage Tanks, Indian Country
6«. Dow This Direclve Supersede Previous Directive(s)?
b. Does It Supplement Previous Oireclive(s)?
No
No
X
Ye*
Whit drecttvt (number. tWe) 9610.15
UST/LUST National Native
American Lands Policy Statement
Wh«t cfrecfre (number, tite)
Draft Level
A - Signed ty AM3AA
B - Signed by Office Director
C-For Review & Comment
D°-in
Development
8. Document to be distributed to States by Headquarters?
/
Yes
x
No
This Request Meel'i OSWER Directives System Format Standards.
9 Signature of Lead Office Directives Coordinator
/ *
Shushona Clark, OUST Directives Coordinator---..|/^//.J^; ; u/L^. LlL?. i
10. Name and Title ol Approving Official
Lisa Lund, Acting Director, OUST 'y\fO
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, D.C. 20460
OCT 2 3 I995
OFFICE OF
SOLID WASTE AND EMERGENCY
MEMORANDUM RESPONSE
SUBJECT: Interim Final National Policy Statement for Underground
Storage Tank Program Implementation in Indian Country
FROM: Lisa Lund, Acting Director-~1 .u"1 ^•/-'-'—
Office of Underground Storage Tanks
TO: Regional Program Managers, Regions 1-10
Attached- is OSWER Directive 9610.ISA, Interim Final National
Policy Statement for Underground Storage Tank Program
Implementation in Indian Country. We appreciate the comments
submitted by the regions on the draft statement and have made a
number of changes as a result.
_/
This interim final policy is effective immediately and
supersedes OSWER Directive 9610.15./ We are issuing the policy as
"interim final" because we may wish to revise it based on tribal
comments and our experience using it. As you know, we will be
undertaking several activities in FY 1996, including training
with tribal representatives, to initiate risk-based corrective
action processes in Indian Country. We expect to receive
comments on those portions of the policy statement related to the
training at the time that this training is offered.
You are encouraged to share this interim final policy with
interested tribes in your region. We ask that tribal comments be
directed to the regions. Please forward any comments you receive
to us and let us know if we can be of assistance to you by
providing additional copies for distribution.
If you have any questions or comments, please contact Bill
Lienesch at (703) 308-8873.
cc: Larry Brill, Region 1
Stanley Siegel, Region 2
Maria Vickers, Region 3
Mary Kay Lynch, Region 4
Norman Niedergang, Region 5
Willie Kelley, Region 6
Bill Pedicino, Region 7
Stephen Tuber, Region 8
Laura Yoshii, Region 9
Lauris Davies, Region 10
R«cyclxt/R*cyclabl« • Pnnieo with Vegetable Ol Based Inks on 100% Recycled Paper (40% Postconsumer)
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OSWER DIRECTIVE 9610.ISA
OSWER DIRECTIVE 9610.ISA
INTERIM FINAL NATIONAL POLICY STATEMENT FOR UNDERGROUND STORAGE
TANK PROGRAM IMPLEMENTATION IN INDIAN COUNTRY
Over the past several years, EPA, with the cooperation of
tribes, has been implementing the Underground Storage Tank (UST)
program (RCRA Subtitle I) in Indian Country. During that tine,
and consistent with the flexibility built into the design of the
UST program, several approaches have been used to implement
various aspects of the UST program in Indian Country. The
purpose of this document is to build on that experience and
provide direction and a set of priorities for EPA regional
offices; for the coming years.
At. the federal level, the resources to implement the UST
program in Indian Country have been limited. Given the current
federal budget constraints, resources are not likely to increase
dramatically. Nevertheless, EPA is committed, as discussed
below, to achieve the goal of protecting human health and the
environment in Indian Country.
The policies set out in this Directive are not final agency
action, but are intended solely as guidance. They are not
intended, nor can they be relied upon, to create any right,
benefit or trust responsibility, enforceable by any party, in
litigation with the United States. EPA officials may decide to
follow guidance provided in this memorandum, or to act at
variance with the guidance, based on analysis of specific site
circumstances. The Agency also reserves the right to change this
guidance at any time without prior notice.
I. BACKGROUND
Federally recognized Indian tribes are sovereign entities
subject to federal laws. Underground storage tanks located in
Indian Country generally are not subject to state lavs. Because
EPA does not authorize tribes to operate the UST program in lieu
of EPA, EPA is responsible for the implementation of Subtitle I
in Indian Country.
There are approximately 7,000 registered USTs in Indian
Country of which approximately 5,000 are actively used. Region 8
has more USTs in Indian Country than any other region. Oklahoma,
which is in Region 6, has more Native Americans than any other
state. While some USTs are found in Indian Country in every
Region except Region 3, the majority of USTs (approximately 95%)
are found in Regions 5, 6, 8, 9, and 10.
1. 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.
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OSWER DIRECTIVE 9610.ISA
II. GOAL
The overriding goal of the implementation of the UST program
in Indian Country is to protect human health and the environment.
More specifically, the goal is to bring all USTs in Indian
Country into compliance so as to prevent future releases and to
clean up existing releases. As discussed in detail below, this
may be accomplished through direct federal implementation of the
federal UST program, by building the capability of selected
tribes to operate tribal underground storage tank programs, and
by facilitating agreements between tribes and states to use state
and tribal authorities and resources to ensure protection.
This goal is consistent with EPA's Indian Policy (see page
6, below) and with 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."
III. OBJECTIVES
/
The objectives of the national UST program in Indian Country
are to:
o Improve rates of cleanups initiated and completed;
o Facilitate the development of tribally-run regulatory
and clean-up programs based on willingness,
authorities, capabilities and funding;
o Increase the amount of resources from a variety of
sources, dedicated to the UST program, including
funding granted to tribes;
o Promote the involvement of other agencies and
organizations, including the Bureau of Indian Affairs
and the Indian Health Service, to make their resources
more readily available to Indian tribes for
environmental protection and to leverage their
resources. This includes facilitating the negotiation
of formal agreements between tribes and state
underground storage tank programs;
o Survey one-third of the reservations for unregistered
USTs in each of Fiscal Years 1995, 1996 and 1997;
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OSWER DIRECTIVE 9610.ISA
o Determine the status of confirmed releases and
which agency (tribe, state or EPA) has the day-to-
day lead for overseeing the corrective action for
each confirmed release (September 30, 1995);
o Establish a priority system for LUST Trust Fund funded
federal-lead corrective actions (September 30, 1995);
and
o Have a fully functioning management information system
in the regions using UST-Access (March 31, 1996).
IV. IMPLEMENTATION STRATEGY
A. EPA/s Resources
In Fiscal Year 1995, EPA received $500,000 of LUST Trust
Fund money to implement the UST program in Indian Country. While
the Administration requested a substantial increase in resources
for FV 1996, it is unlikely that Congress will provide the
requested resources. The level of resources available will have
a direct impact on EPA's ability to implement the national
priorities listed below.
In most years, the vast majority/of/the available resources
will be; allocated to the regions that are responsible for
implementation of the UST program in Indian Country. The
regions:, in turn, should make a portion of the allocated funds
available to tribes through RCRA Section 8001 grants. (Please
see section V.H below for more information on these grants.)
B. National Priorities
Neitional priorities for the UST program in Indian Country
will be: established annually for the coming fiscal year.
Specific activities to carry out the priorities will be
determined, as part of the planning process conducted annually
with the regions. Below are the priorities, jointly agreed to by
OUST arid the regions, for Fiscal Years 1995 and 1996. Priorities
will identify the major activities to be undertaken by the
regions (RO) and OUST (HQ) during the fiscal year. The vast
majority of available funds and staff time will be dedicated to
priority activities.
Fiscal Year 1995
0 Develop an Accurate Inventory
Improve and update data (RO)
Develop UST-Access (HQ)
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OSWER DIRECTIVE 9610.15A
Begin unregistered tank surveys (RO)
Work with tribes and states to get notification forms
to the regions (RO)
Report inventory data to HQ quarterly (RO)
Compile summary statistics quarterly (HQ)
Oversee Confirmed Releases
Determine status of all releases (RO)
Determine if there will be direct regional oversight or
joint oversight with the State (RO)
Improve rate of cleanups initiated and completed (RO)
Expand Field Presence Including Enforcement When
Appropriate
Increase use of SEES (RO)
Increase technical assistance and outreach (RO)
Increase inspections and use of field citations (RO)
Develop Policies and Guidance
Issue guidance for quarterly reporting
measures (HQ)
- / Issue revised national policy statement (HQ)
Issue guidance on priority systems and RBCA (HQ)
Issue guidance on long-term cleanups (HQ)
Work with OECA on LUST field citation policy (HQ)
Finalize allocation formula (HQ)
Make Grants to Tribes
Increase number and/or amount of 8001 grants, as
appropriate (RO)
Fiscal Year 1996
Maintain an Accurate Inventory
Convert data and initiate use of UST-Access (RO)
Continue unregistered tank surveys (RO)
Report inventory data to HQ quarterly (RO)
Compile summary statistics quarterly (HQ)
Oversee Confirmed Releases
Initiate use of priority system and RBCA (RO)
Improve rate of cleanups initiated and completed (RO)
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OSWER DIRECTIVE 9610.ISA
Continue to assist in development and negotiation of
agreements between states and tribes
0 Eicpand Field Presence Including Enforcement As Appropriate
Increase use of field citations (RO)
Work with OECA to explore if the list of citable
. violations should be expanded to include minor LUST
violations (HQ)
0 Develop Policies and Guidance
Revise allocation formula, if necessary (HQ)
Explore the possibility of treating tribes in the same
manner as states for the UST program (HQ)
0 Make Grants to Tribes
Increase number and/or amount of 8001 grants, as
appropriate (RO)
Cn Annual Planning Process
A:.l regions with USTs in Indian Country will participate
with OUST in arx cooperative annual planning process. The
objectives of this process are to: (1) identify the status of UST
progran implementation activities in Indian Country within each
region;; (2) identify those areas where the region or tribes have
made progress during the previous year; (3) identify those areas
most in need of improvement; (4) identify specific activities,
especially those necessary to carry out the national priorities
for that fiscal year/ that will result in needed improvements;
and (5] identify the resources necessary to carry out those
activities.
The annual planning process should take place as early as
possible in the fiscal year with the goal of being completed by
January. This should allow sufficient time throughout the
remainder of that fiscal year to make progress on the priorities
identified for that fiscal year.
P.. Performance Measures
Performance measures will be reported quarterly by the
regions to OUST which will in turn summarize the reported data.
The regions' reports will include: the number of active tanks,
closed tanks, confirmed releases; emergency responses; cleanups
initiated; cleanups completed; enforcement actions; Trust Fund
expenditures at sites; cost recovery sites and dollars; critical
sites; and additional performance measures that nay be developed.
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OSWER DIRECTIVE 9610.ISA
The data reported by the regions will be reviewed to
determine progress in meeting the program's goal, objectives and
national implementation priorities. Necessary changes, if any,
in program direction, policy, and implementation will be
identified.
E. Implementation Approaches
EPA regional offices are responsible for ensuring that the
UST program is implemented in Indian Country. The regions will
establish and manage a basic UST program, as described below,
within the constraints of available resources. The extent of
this basic program, however, will depend in part on the degree to
which a specific tribe, or a tribe pursuant to an agreement with
a state, is operating a protective tribal underground storage
tank program. Where strong tribal programs exist, the need for
federal action in individual cases may be greatly diminished.
Because the resources for the operation of the federal program
are limited, regions should thus work, when appropriate, to
encourage tribal (and/or state) involvement in regulating USTs in
Indian Country. Two available approaches to accomplish this
involvement are outlined below.
First, regions are encouraged to work with selected tribes
that have developed or can develop the capability to administer a
tribal underground storage tank program on lands within their
jurisdiction. Although EPA would not actually be authorizing
such programs, 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." This was reiterated in Administrator
Browner's March 1994 memorandum on EPA Indian Policy:
"Nevertheless, the core principle of the Policy, a commitment to
working with Federally recognized tribes on a government-to-
government basis to enhance environmental protection, has been
reaffirmed by President Clinton and remains the cornerstone of
EPA's Indian program."
Significant underground storage tank program development
work has already begun in Region 9 with the Navajo Nation, in
Region 6 with a consortium of pueblos in New Mexico and a
consortium of tribes in Oklahoma, and in Region 5 with the
Minnesota Chippewa.
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OSWER DIRECTIVE 9610.ISA
Second, regions also are encouraged to facilitate the
negotiation of tribal-state agreements when possible. This nay
be particularly advantageous in those cases where the tribe and
state have developed or can develop a good working relationship
and wheire such an arrangement will allow access to state
assurance funds for financial responsibility coverage and cleanup
costs. Regions should ensure that such agreements result in
protection of human health and the environment since EPA is
ultimately responsible for implementation of RCRA Subtitle I in
Indian Country.
In 1993, the UST/LUST National Native American Lands Policy
Statement (OSWER Directive 9610.15), noted that the regions were
responsible for establishing and managing a basic underground
storage tank program using available resources. The basic
program represents the minimum activities that each region will
complete to fulfill the requirements of the law, regulations,
executive orders and EPA policy. Ah example of an applicable
policy is the Agency enforcement policy concerning taking
enforcement actions against Indian tribes.
OUST's 1993 guidance listed various activities and noted
that additional activities that would be part of a basic program
could be found in the Transition Task List (OSWER Directive
9610.5-1). The activities centered primarily on actions related
to notification forms, corrective action oversight, and closure.
Below is a more comprehensive list of activities that
constitute the elements of a basic program. Within the
constraints of available resources, the regions are responsible
for ensuring that all the elements of a basic program are
implemented for USTs in Indian Country. The regions are
encouraged to become involved in activities beyond these basic
progran, elements. The level of available resources will affect
how quickly the regions implement the program elements and their
ability to take on additional activities.
Basic Program Elements
1. Outreach to tribal governments and owners and operators.
A. Provide requested information in a timely manner.
B. Provide training, as necessary, for Indian tribes,
owners and operators, contractors and consultants.
2. Receive notification forms.
3. Maintain an accurate inventory using an up-to-date
management information system (UST-Access available December
1995).
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OSWER DIRECTIVE 9610.ISA
4. Assure that corrective actions are adequately overseen.
A. Answer calls reporting releases.
B. Receive documentation of financial responsibility in
the event of a release. (This requirement also applies
in the event of certain other events including
bankruptcy and the revocation of a financial assurance
mechanism.)
C. Receive site assessment and corrective action reports
and review then in a timely manner.
D. Utilize a Risk-Based Corrective Action (RBCA) process
to conduct and oversee federal-lead cleanups and
oversee responsible-party lead cleanups.
E. Ensure that corrective actions are completed as quickly
as possible utilizing enforcement and other methods
given available resources.
5. Enforcement
A. Ensure that the region has an active inspection program
including field citations.
B. Take formal enforcement actions when appropriate.
6. Receive notifications of closure and change-in-service, and
keep records of excavation zone assessments at closure if
necessary.
/ /
7. Provide support to tribes with sufficient tank populations,
capability and interest to develop and implement their own
programs.
Within the constraints of available resources, the regions
must ensure that these basic program elements are achieved but
have flexibility in hov they accomplish these activities, as well
as the additional activities listed in the next section.
V. ACTIVITIES
There are a vide variety of activities that can be
undertaken to further implementation of the UST program in Indian
Country. These activities will be pursued with appropriated LUST
and UST monies, as veil as vith personnel funded by both UST and
LUST monies. Additionally, some activities related to tribal
program development may be supported via RCRA Section 8001
grants. The specific activities pursued in any region vill
depend on factors such as the number of tribes, their existing
and potential ability to implement an equivalent tribal program,
and number of USTs and leaking USTs on tribal lands. Specific
activities undertaken in & given region vill be determined during
the annual planning process.
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QSWER DIRECTIVE 9610.ISA
A. Notifications
The regions should solicit and receive all notification
forms from owners and operators in Indian Country. States should
be asked to forward any Indian Country notification forms
currently in their possession or that come to the* in the future
to the appropriate region. Regions may communicate the
importance of receiving notification forms to the state through
written documentation or orally as part of regular discussions.
It also is critical for regions to share this message with
tribes. A general statement reminding tribes to forward
notification forms to regions could be part of any outreach
effort or written agreement. Finally, OUST and the regions will
discuss1, and evaluate Indian Country notification reporting
requirements as part of the annual planning process and determine
appropriate action to take, if necessary, to deal with any
problems that may exist.
B. Maintaining A Regional Inventory
Maintaining an accurate up-to-date inventory is a top
priority for implementation of the UST program. Headquarters has
developed a database (UST-Access) to track facility, tank and
ownership information. This database will be provided to the
regions; to support their efforts to maintain an accurate
inventory of USTs.
Both the regions and OUST have a role to play in maintaining
accurate Indian Country UST inventories. Regions have the
responsiibility to find unregistered tanks, obtain notification
forms from the owner /opera tor and input the data into the
database. OUST will make available database software (UST-
Access) so that the regions may catalogue and track Indian
Country UST information accurately. OUST will update the
national summary statistics quarterly. It will review the
information submitted to identify problem areas both nationally
and in individual regions. The national summary statistics will
be reviewed with each region during the annual planning meeting,
or more; often, if needed. To improve the inventories, the
regions;, at a minimum, should:
© notify owners and operators of underground storage
tanks in Indian Country of the need to submit their
notification forms to the region;
o inform states that future notification forms for USTs
in Indian Country need to be provided to EPA; and
o report quarterly performance measures to OUST,
including a brief narrative summary highlighting
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OSWER DIRECTIVE 9610.ISA
cleanup problems, focusing on releases affecting
drinking water.
An important part of maintaining an accurate inventory is
identifying unregistered USTs. Three basic categories of
unregistered USTs exist:
1. USTs that are in-service and unregistered;
2. abandoned USTs that contain product; and
3. abandoned USTs that do not contain product.
The highest priority will be placed on finding unregistered, in-
service USTs because they pose the greatest threat to human
health and the environment. Below is a list of techniques
regions may employ to identify unregistered USTs, and improve the
overall inventory of USTs in Indian Country:
o Increase regional field presence (e.g., use SEE or AARP
dollars to fund a circuit rider, set a goal to visit a
certain number of reservations within a quarter);
o Utilize data obtained from tribal grants to update
regional inventories (regions should place a grant
condition in all future tribal grants requiring any
updates to inventory d^ta to be submitted to the
regions);
o Work with states to identify facilities in Indian
Country contained in the states' data bases;
o Check neighboring facilities when conducting a
corrective action or preventative inspection for signs
of unregistered USTs;
o Coordinate efforts with tribal entities and government
agencies to conduct surveys in order to locate
unregistered USTs (e.g. work with local Indian Health
Service or Bureau of Indian Affairs offices);
o Develop strong outreach and educational programs for
UST owners/operators in Indian Country (e.g., press
releases to inform community of registration
requirements; hold informational meetings with owners,
operators, consultants, jobbers, distributors
concerning registration and compliance; high profile
media outreach effort to register all USTs; etc.);
o Provide financial support to the tribes to complete an
unregistered UST survey;
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OSWER DIRECTIVE 9610.15A
o Work cooperatively with tribes and states, where
appropriate, or with other federal agencies such as the
Bureau of Indian Affairs (BIA) and the Indian Health
Service (IHS) to identify unregistered USTs and other
sources of information for the identification of
unregistered USTs.
C. Outreach
Outreach and education are critical to improving the quality
of the UST program in Indian Country and compliance with
environmental regulations. OUST and the regions will continue to
develop and disseminate information to Indian Country
owners/operators, their consultants and contractors and to tribal
governments to improve their understanding and application of the
regulations as well as the types of assistance available to them
at the federal and state level. Regions will utilize and build
on outreach activities such as: information dissemination,
training, information seminars, and increased regional field
presence.
P. Financial Responsibility
The financial responsibility requirements are applicable to
owners and operators in Indian Country./ All individuals, with
non-trlbally owned tanks, including tribal members, are currently
required to be in compliance with the financial responsibility
requirements. Owners of tribally owned USTs that are in
technical compliance have until December 31, 1998 to comply with
the financial responsibility requirements (40 CFR 280.91(f)).
Tribal-state agreements are often the key to allowing facilities
in Indian Country access to state assurance funds. When tribes
so desire, regions should facilitate the inclusion of USTs in
Indian Country in state funds.
E. Closure
The closure requirements described in 40 CFR 280.70 through
280.74 (Subpart G) are applicable to owners and operators in
Indian Country and cover the requirements for:
o temporary closure (UST system temporarily out of
service—special requirements for three months of
temporary closure and 12 months of temporary closure);
o permanent closure and changes-in-service (notification
of closure and change-in-service, procedures for
closing UST, and UST's storing non-regulated
substances);
11
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OSWER DIRECTIVE 9610.ISA
o assessing the site at closure or change-in-service,
(measuring for a release and performing corrective
action if contamination discovered);
o applicability to previously closed UST systems,
(direction to assess the excavation zone of UST systems
permanently closed before December 22, 1988); and
o closure records (maintaining records that demonstrate
compliance with closure requirements).
Regions will apply these requirements in order to identify and
contain existing contamination and to prevent future releases
from UST systems no longer in service.
F. Corrective Action Oversight and Federal-Lead Cleanups
EPA is responsible for the implementation of RCRA Subtitle I
in Indian Country. (EPA's role in corrective action oversight
and federal-lead cleanups is discussed in more detail in OSWER
Directive 9610.9A, Jnterim Final National Corrective Action
Policy for USTs in Indian Country.) However, the primary
responsibility for conducting and paying for cleanups lies with
owners and operators. In cases when the state, with the
permission of the tribe, is overseeing existing cleanups or
agrees to oversee future cleanups, the regions will monitor state
oversight of these corrective actions. In cases that post-date
the effective date of this policy, the state and region will
reach an agreement before state oversight of a cleanup begins.
In all cases, the state will oversee a cleanup only with tribal
consent. Agreements need not be in writing.
The regions and OUST with representative tribal
participation are currently developing a risk-based decision
making process that will focus corrective action activities and
resources on situations that pose the greatest threat to human
health and the environment. The system will be issued in an
OSWER directive in FY 1996.
Owners and operators are responsible for the cost of cleanup
of their leaking UST(s). When LUST Trust Fund money is expended
at a leaking UST site, the owner and operator are liable for all
costs of corrective action and enforcement, including interest,
oversight, indirect and management and support costs associated
with these activities that are paid for by the Trust Fund. (See
OSWER Directive 9610.10A, Cost Recovery Policy for the LUST Trust
Fund.) When the region expends Trust Fund money for corrective
action or enforcement, and "action thresholds" (See OSWER
Directive 9610.10A, Section F) have triggered site-specific
accounting, the region will document all trust fund expenditures
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OSWER DIRECTIVE 9610.15A
at such sites. The region is responsible for pursuing recovery
of costs from responsible parties or documenting the reasons for
a decision not to do so. In accordance with the current cost
recovery policy, the region has the discretion to determine the
priority and level of effort to devote to individual cost
recovery cases, including those for sites in Indian Country,
provided those decisions are documented in the case files.
Consistent with the OSWER Directive 9650.13, Streamlined
Implementation of UST Corrective Action Requirements, regions
also should continue examining both regional and tribal
corrective action processes to determine ways to streamline and
make those processes more effective and efficient.
G. Enforcement
EPA's policy for implementation of the UST program in Indian
Country includes cooperative efforts between OUST and the Office
of Enforcement and Compliance Assurance (OECA). OECA assisted in
developing the strategy to implement the UST program in Indian
Country. OUST's policies are consistent with the Agency's
policies concerning enforcement actions in Indian Country,
including the 1984 policy statement mentioned above (Policy for
the Administration of Environmental Programs on Indian
Reser vat ions Y*
General enforcement activities include the following:
o OECA will participate in an annual planning meeting on
UST program implementation in Indian Country to discuss
enforcement issues;
o The Office of Site Remediation Enforcement (OSRE) and
OUST will encourage regions and tribes to search for
responsible parties that are financially able to fund
LUST cleanups; and
o In cases where there is no tribal ownership interest
in, or management of a facility located in Indian
Country, the Agency will respond to noncompliance at
such a facility in the same manner that it responds to
noncompliance at facilities located outside of Indian
Country. In such cases, EPA will coordinate
enforcement efforts with the tribal government in the
same manner that it would with an affected state
government.
o In cases where there is tribal ownership interest in,
or management of a facility located in Indian Country,
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OSWER DIRECTIVE 9610.15A
regions must consult with headquarters concerning
potential formal enforcement actions.
There are several activities that the regions will undertake
to establish an effective enforcement program. First, the
regions will establish and utilize a field citation program in
Indian Country to address prevalent, clear-cut minor violations
that are relatively easy to correct. Most of the regions already
have established a field citation program in Indian Country.
Second, the regions will issue administrative complaints and
corrective action orders when warranted. (See OSWER Directives
9610.11, 9610.12, and 9610.16 for specific guidance on
enforcement procedures, penalties and field citations.) Third,
the regions will use UST-Access to track compliance with assigned
deadlines. And, finally, the regions will report enforcement
actions on a quarterly basis. OUST will consolidate national
summary statistics on enforcement actions on a quarterly basis.
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H. Financial Support for Tribes
As noted above in the discussion of resources available to
EPA, the majority of funding available for the UST program in
Indian Country is from the LUST Trust Fund. In 1994, Congress
explicitly acknowledged EPA's authority to award LUST Trust Fund
monies to tribes through RCRA Section 8001 grants. EPA also has
authority to award underground storage tank program funds to
tribes under Section 8001.
Section 8001(a) authorizes grants for conducting and
promoting the following categories of eligible activities:
research, investigations, experiments, training, demonstrations,
surveys, public education programs, and studies relating certain
specified topics listed in Section 8001(a)(1)-(13). Section 8001
grants may be used to help tribes develop the capability to
administer an UST program to the extent that such capability
development activities legitimately fit within the eligible
activities categories of Section 8001(a). Examples of eligible
projects include demonstrating the development and implementation
of a regulatory program in Indian Country, conducting an
unregistered tank survey, and providing leak detection training.
In any given year, available funding may not be sufficient to
fund every tribe interested in a Section 8001 grant. The
following criteria should be used to prioritize funding requests:
o Has at least 20 facilities or 50 tanks, whichever is
smaller, on the reservation. Some of these may not yet
be registered and part of the reason for giving a grant
to a tribe would be to complete an accurate inventory;
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OSWER DIRECTIVE 9610,15A
o Has some sort of environmental infrastructure or is
attempting to build one;
o Demonstrates interest in, and makes progress toward,
developing an UST code;
o Commits to develop own funding source to help implement
an UST program;
o Has the ability to match the grant (there is a 5% match
for Section 8001 grants);
o Demonstrates a track record of successfully completing
projects and commitments including work funded through
EPA grants; and
o Establishes specific outputs that will result from work
conducted under 8001 grant.
CONCLUSION
This policy statement is consistent with the UST program's
design of providing flexibility in program development and
implementation approaches by state, local and tribal governments.
Regions have the ability to achieye UST program goals and
objectives by undertaking a variety of activities. The selection
of specific activities will be based on the needs and
capabilities of tribes and tribal consortia in a particular
region. Although existing and potential future federal resources
for program implementation are limited, EPA is committed to
achieving protection of human health and the environment in
Indian Country. 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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