TRI Reporting for Facilities Located in Indian Country
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EPA has finalized a rule providing tribal governments with more opportunities to fully participate in the TRI Program. Under this rule, facilities meeting TRI reporting requirements and located in Indian country are required to submit TRI forms to EPA and the appropriate tribe, rather than to the state in which the facility is geographically located. The final rule also clarifies that a tribal chairperson or equivalent elected official has equivalent opportunities to a state governor to petition EPA to request: 1) that individual facilities located within their Indian country be added to TRI, and 2) that a particular chemical(s) be added to or deleted from the TRI chemical list.
The Agency's action is part of its ongoing efforts to increase tribal participation in the TRI Program and improve access to information on toxic chemical releases that affect the local communities in Indian country. Through this final rule, EPA provides tribal governments with the right to directly receive release reporting information from facilities located in Indian country and also explicitly clarifies the rights of tribal leaders to take an active role in TRI through petitions to modify the toxic chemical list or requests to add a facility within their Indian country to TRI.
This final rule primarily revisits EPA's July 26, 1990, action (55 FR 30632), which required facilities located in Indian country to report to the appropriate tribal government official (as designated by the tribe) and EPA, instead of to the state and EPA. This 1990 amendment, however, was inadvertently omitted from the Code of Federal Regulations (CFR) when it was overwritten by a subsequent rule.
Effect on TRI Facilities, States, and Tribes
Since the beginning of the TRI Program, facilities that meet TRI reporting requirements have been required to submit annual TRI forms to EPA and the state in which they are located. Under this final rule and consistent with EPA's previous action in 1990, EPA is requiring TRI facilities located in Indian country to submit TRI reporting forms to the official designated by the tribal chairperson or equivalent elected official of the relevant tribe, as well as to EPA. The form(s) will no longer have to be submitted to the state in which the facility is geographically located. States will, however, have access to TRI data for facilities outside of their jurisdiction when EPA makes the data publicly available (i.e., within the month following the reporting deadline).
Tribal Responsibility Under This Rule
Under this final rule and per the intent of the 1990 regulation, a tribe's only responsibility will be to receive any TRI forms submitted by facilities located within its Indian country. EPA will ask affected tribes (those with facilities located in their Indian country) to identify a point of contact to whom facilities can provide the annual report of TRI releases. If no TRI contact is designated, the tribal environmental department or the tribal chairperson (or equivalent elected official) would serve as the point of contact for TRI form submissions.
Although tribes are not required to use the toxics release data received from facilities for any particular purpose, TRI data can help tribes better analyze potential sources of toxic chemicals and assess environmental and health conditions in their Indian country. Tribes currently have, and will continue to have, access to nationwide TRI data once they are made available to the public. This provision in the final rule simply accelerates the timeframe within which a tribe would receive data from facilities in its Indian country, and these data would be provided directly to the appropriate tribe.
Process for Tribes to Receive TRI Reporting Forms from Facilities
Tribes may choose how they would like to receive reporting forms from TRI facilities. If a tribe provides no specific guidance as to receipt, owners and operators of TRI facilities should mail TRI forms to the appropriate tribal government representative, as identified by the tribe. If no specific contact is identified by the tribe, EPA will identify the tribal chairperson (or equivalent elected official) or the tribal environmental department as the default contact.
If a tribal government joins the Internet-based TRI Data Exchange (TDX), then a TRI facility can meet its dual EPA/tribal reporting requirements by submitting its TRI form(s) to EPA via TRI-MEweb, the Web-based application for electronic TRI reporting. Tribal governments may join TDX using either the node transfer method or the download method. The node transfer method requires the implementation and maintenance of a node flow between the tribe and EPA's Central Data Exchange, whereas the download method requires only a computer with an Internet connection.
If the facility is located in the Indian country of a tribe that does not join TDX, then the facility will be required to submit a TRI form to EPA and also separately to the appropriate tribe. The approach described above is the same as for EPA and states for those facilities not located in Indian country.
Opportunities for Tribes Provided by This Rule
The Emergency Planning and Community Right-to-Know Act (EPCRA) provides opportunities for governors of states to request that particular facilities in their states be subject to TRI reporting requirements or that specific chemicals be added to or deleted from the TRI chemical list. This final rule clarifies that these same opportunities are available to tribal governments under EPCRA, and EPA interprets these provisions so that the tribal chairperson or equivalent elected official may make similar requests to EPA. Ultimately, it is EPA that determines whether TRI reporting requirements will apply to a particular facility or whether a specific chemical will be added to, or deleted from, the TRI chemical list.
Accordingly, under this final rule, a tribal chairperson or equivalent elected official will have the opportunity to request EPA to require TRI reporting by a facility (not already covered by TRI) in the Indian country of that tribe. The tribal chairperson or equivalent elected official will also have the opportunity to petition in the same way as state governors for the addition or deletion of a chemical, which would apply to all facilities that manufacture (including import), process, or otherwise use the particular chemical.
If a tribe's chairperson or equivalent elected official petitions EPA to add a particular chemical to the TRI list, EPA is required to respond to that petition within 180 days of receipt. If EPA does not respond within 180 days, the chemical would be automatically included on the TRI chemical list. The same requirements already apply in the context of petitions by governors of states to add a chemical to the TRI list. These response time requirements from EPA would not, however, pertain to petitions (by either tribes or states) to apply TRI reporting requirements to an individual facility or to delete a chemical from the TRI list.
Tribal Engagement with the TRI Program
Currently, the TRI Program holds bi-monthly calls with TRI state coordinators and TRI regional coordinators (located in each of EPA's ten regional offices). In implementing this final rule, EPA will ask tribes to designate an official to receive TRI forms and will invite those designated TRI tribal coordinators to participate in the bi-monthly calls in order to keep them informed of ongoing TRI activities.
EPA will inform the National Tribal Caucus and the various tribal partnership groups of the reporting changes for facilities in Indian country and additional opportunities available under the final rule, as well as various opportunities for engagement in the TRI Program. EPA has been coordinating with and will continue to work closely with EPA regional offices to ensure that tribes are aware of the various opportunities available for engagement.