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Tribal Solid Waste Management, ENVIRONMENTAL CODES & ENFORCEMENT by:... Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes • Tribal Auth

Tribal Solid Waste Management, ENVIRONMENTAL CODES &

ENFORCEMENT

by:

What is an Integrated SWMP?

• SWMP is not an actual SWM Program

• Preparing a SWMP is the 1 st step towards

developing a comprehensive SWM

Program

• Remember, all SWM Plans are not alike

• SWMP is structured based on the needs of community

Components of SWMP

• EPA suggests Four major components in a

typical SWMP:

• Past and Present SWM Practices

• Solid Waste Generation

• Goals and Objectives

• Integrated SWM Approaches

– Source Reduction – Recycling

– Composting – Collection and Transfer Station – Landfill

Components of SWMP

…Continue

Understanding the Current SWMP:

• Evaluate current SWM practices

• Assess individual practices and attitudes

• Understand the regulatory and institutional climate of

the Tribe

• Examine multi-jurisdictional opportunities

• Assess current & potential financial resources

• Characterize the current waste stream

• Assess the future waste stream

• Once the Draft Plan is Written?

• Having others review the plan.

• Sharing the plan with the community to gather public input.

• Seeking experts to conduct more detailed analyses of certain selected alternatives

• Revising the plan as necessary.

Components of SWMP

…Continue

Tools Available to Develop

SWMP

• What Tools are Available to Assist in Plan Development

• Guide for Initiating SWM Planning on Indian Country- BIA, June 1992

• Decision-Maker’s Guide to SWM, Vol II- USEPA, August 1995

• Publications on SWM in Indian Country- USEPA, December 1996

• Other Tribal SWM Plans are available via EPA/BIA, IHS

…etc

• Consortia: AIPC-POEP & ITEC

• Technical Assistance from All Federal Agencies: EPA, BIA & IHS, USDA, RUS,HUD

Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste

Environmental Codes

• Tribal Authority to regulate the Tribal environment

is a basic component of Tribal Authority

Sovereignty William v Lee, 38 U.S 217 (1959)

• Tribes have the right to make their own laws and be governed by them Tribes have sovereign power to enforce tribal laws, including environmental laws,

over their members Nancy v EPA., 645F.2d 701

(9th Cir 1981), cert Denied sub nom Crow Tribe

of Indians v EPA, 454 U.S 101 (1981).

Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste

Tribal civil authority over non-Indians has been

recognized in a variety of circumstances There are cases not specifically addressing tribal

environmental authority that are important in the consideration of tribal regulatory over non-

Indians Montana v United States, 450, U.S

544, 565-6 (1981)

EPA has the authority under Sections 2002,

4004, and 4010 of the Resource Conservation and Recovery Act (RCRA) to promulgate site-specific rules as outlined in this draft guidance document The authority to such rules has been upheld by a US District Court in “Yankton Sioux Tribe v EPA,” 950 F Supp 1471 (D.S.D

1996)

Tribal Authority and Inherent Sovereign

Power to Manage and Regulate Solid

• A US Court of Appeals “Backcountry Against Dumps v

EPA,” 100 F.3d 147 (D.C Cir 1996) suggested it

would recognize EPA’s authority to issue such

site-specific rules under RCRA Subtitle D in Indian Country

• The court noted that EPA and the Tribe need not wait

for Congress to amend RCRA to obtain flexibility in

complying with the revised MSWLF criteria Instead,

the court suggested that EPA could issue a

site-specific rule satisfying both the intent of RCRA and an

owner or operator’s need for flexibility.

Tribal Authority and Inherent Sovereign

Power to Manage and Regulate Solid

• The Tribe and certain Federal agencies are

required by law to comply with the disposal of

solid wastes on the Reservation under the

Federal Solid Waste Disposal Act (herein “the

SWDA”), as amended by the Resource

Conservation and Recovery Act (herein “RCRA”),

42 U.S.C.A §§ 6901-6992; and more

specifically, Subchapter IV, “State or Regional

Solid Waste Plans”, 42 U.S.C.A §§

6941-6949(a), or SWDA §§ 4001-4010

Tribal Authority and Inherent Sovereign

Power to Manage and Regulate Solid

• These Federal laws also include the various solid waste

regulations promulgated thereunder by the U.S EPA,

including the comprehensive final rules and regulations

contained in 40 CFR Part 258, for the location, design,

operation, closure, post-closure, and financial assurance requirements for municipal solid waste landfills.

• The Tribe intends by the adoption of the Solid Waste

Code, to comply with the SWDA, and the Part 258

Criteria Once the Tribe’s Solid Waste Management Plan

is adopted by the Tribal Council, the Director of the Tribe’s Solid Waste Agency may coordinate with the EPA for its

Tribal Authority and Inherent Sovereign

Power to Manage and Regulate Solid

• The Tribe has the same flexibility as States

in complying with the Part 258 Criteria under

the Site-specific Flexibility Rulemaking

Process The code prohibits the disposal of

any solid waste except in MSWLFs which

comply with the Part 258 Criteria Disposal

of solid wastes at “open dumps” is prohibited

under the Solid Waste Code

Tribal Authority and Inherent Sovereign

Power to Manage and Regulate Solid

Enforcement of Tribal Codes

and Regulations

• Tribal Authority to Enforce - 25 U.S.C 1302

• What is being enforced?

• Who is doing the enforcement?

• How is the enforcement to be accomplished?

• Enforcement Processes

• Compliance Orders/ Administrative Orders

• Tribal Court - Civil Actions

• Tribal Court - Criminal Actions

Tribal Codes and Regulations

Table of Contents

• Finding & Purpose of Solid Waste Codes

• Definitions

• Designation of Authority

• Proper Handling, Collection, & Disposal of

SW and/or Hazardous Waste

• Permit requirements for SWM activities

• Public involvement & Enforcement

Tribal Codes and Regulations

… continue

• Finding & Purpose of Solid Waste Codes

– Purpose of Solid Waste Management Code

– The Tribe’s Inherent Sovereign Power & Civil

Jurisdiction.

– The Tribe’s MSW, Solid Waste & Hazardous

Waste Policies – The Tribe’s Authority & Commitment to Manage

Tribal Resources

Tribal Codes and Regulations

… continue

• Designation of Authority

– Creation of a Tribal Environment Division

– Duties of the Environment Division with respect to MSW and SW

– Duty of the Environment Division to Investigate

Under This Code

Tribal Codes and Regulations

… continue

• Proper Handling, Collection, & Disposal of

SW and/or Hazardous Wastes:

– Integrated Solid Waste

– Open Dumping

– Burning of Solid Wastes

– Household Hazardous Waste

– Special Wastes

Tribal Codes and Regulations

… continue

• Permit requirements for SWM activities:

– Define General Permit requirements

– Permits for the Construction and/or Operation of a Management Facility

– Transfer Station

– Operational requirements for Transfer Stations

Tribal Codes and Regulations

… continue

• Public Involvement & Enforcement:

– Public Participation & Hearings

– Actions on Public Complaints

• Community Members

• Permitted Haulers and/or Management Facilities

– Penalties/Fines

Enforcement of Tribal Codes

and Regulations

25 U.S.C 1302

Due process is critical throughout the

enforcement process The Indian Civil Right Act provides that: “No Indian Tribe in

exercising powers of self-government shall (8) deny to any person within its jurisdiction the equal protection of its laws or deprive

any person of liberty or property without due process of law.”

Enforcement Mechanism

Items to Consider

What is being enforced?

• Violation of the Ordnance or Code

• Violation of a regulation or rule

• Person or entity is creating an imminent and

substantial endangerment to the public health and environment

• False or misleading information in an

application, report, permit or other document filed, maintained or used for ensuring

Enforcement Mechanism Items to Consider …continues

Who is being done by the enforcement?

• Solid Waste Department or Staff?

• Tribal Administration - includes Tribal Officials,

the Governor’s Staff?

• Tribal Law Enforcement departments - includes

– Conservation Officers– Wildlife Officers

Enforcement Mechanism

Items to Consider

How to accomplish Enforcement?

• Clean up and cease and desist orders

• Temporary restraining order, preliminary and

permanent injunction or other relief necessary

to protect the public health or the environment

• Civil action in Tribal Court

• Criminal action in Tribal Court

Enforcement & Response Authorities to address Environmental Risks posed by MSWLFs in Indian Country

• How to Utilize the Enforcement Authority in RCRA Section 7003

– Under RCRA Section 4005(c)(2)(A), determine that all State programs (with identified exceptions) are not adequate to ensure enforcement of the criteria in Indian Country.

• Enforce MSWLF Criteria under Clean Water Act Section 309 &

405

• Enforce MSWLF Under CWA 311

– Penalties for Unlawful Discharges – Issuance of Orders

• Enforcement Under CERCLA

– Information gathering & access under section 104(e) – Issuance of Orders Under CERCLA Section 106(a) – Take a Response Action Under CERCLA Section 104(a)

Enforcement Program for Solid

Waste Permitees

• ENFORCEMENT PROGRAM FOR SOLID WASTE

PERMITEES

• Compliance, Abatement and Remedial Action Orders

• BOARD ADMINISTRATIVE HEARINGS

• Procedural Rights

• COMPLIANCE MONITORING

• PUBLIC PARTICIPATION AND HEARINGS

USEPA solid Waste Grants

solicitation for FY 1999, 2000, 2001

& 2002

($90K/yr, 3 yrs)

EPA Regional Tribal Solid Waste

• Tribes should prepare a SWMP

• Tribes should comply with Federal Regulations

(40 CFR Part §258 criteria

• Tribal authority to regulate the Tribal environment

is a basic component of Tribal Sovereignty

• Environmental regulation goes directly to the

health and welfare of Indian communities

• If the Tribe does not do it, someone else will

• Technical & Funding Assistance available from

different agencies (EPA, IHS, BIA, HUD, USDA, RUS…etc).