Tribal Involvement in Land Cleanup and Spill Prevention: Laws and Regulations
Preventing the contamination of land and preserving critical resources that rely on available land is vital to protecting and creating healthy and vibrant communities and ecosystems. EPA works collaboratively with tribes, states, and local governments to preserve our land. A number of federal statutes or laws form the legal basis for the Office of Land and Emergency Management's programs. Below is a list of land protection cleanup and prevention laws that may be relevant to tribal governments.
On this page
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund)
- Emergency Planning and Community Right-to-Know Act of 1986
- Oil Pollution Act of 1990
- Resource Conservation and Recovery Act (RCRA)
- Small Business Liability Relief and Brownfields Revitalization Act
- Brownfields Utilization, Investment and Local Development (BUILD) Act
CERCLA provides broad authority for federal program response to releases of hazardous substances and pollutants or contaminants.
- Pursuant to CERCLA section 126, the governing body of tribes are afforded substantially the same treatment as states for many response-related purposes, including: notification of releases, consultation on remedial action, access to information, health authorities, and roles and responsibilities under the National Contingency Plan (NCP).
- CERCLA section 104 allows EPA to enter into cooperative agreements with eligible tribes to perform or participate in Superfund-eligible site response activities. (EPA retains final oversight authority.)
(Expanded on under the Pollution Prevention Act of 1990)
The Emergency Planning and Community Right-to-Know Act (EPCRA) serves to inform communities and citizens of chemical hazards in their areas. EPCRA Section 313 requires covered facilities to annually report to EPA and their state on releases and transfers of toxic chemicals. EPA is required to make this data available to the public in a database, which is called the Toxics Release Inventory (TRI). The Pollution Prevention Act of 1990 expanded the information required to be reported to the TRI to include information on waste management and source reduction activities. EPCRA also serves to encourage and support planning for responding to environmental emergencies.
EPA recognizes a role for tribes similar to states in planning for responding to chemical emergencies. EPA regulations under EPCRA Section 313 establish requirements for covered facilities located in Indian country to report TRI information to the appropriate tribes.
The Oil Pollution Act (OPA) provided new requirements in part by amending section 311 of the Clean Water Act, for preventing, preparing for, and responding to any oil spill affecting inland U.S. waters; expanded liability provisions; and consolidated existing oil spill liability funds into, and strengthened, the Oil Spill Liability Trust Fund to provide greater resources to respond to oil spills.
- The OPA addresses natural resource damages and provides for Indian Tribe Trustees for natural resources.
- The federal government must direct all public and private response efforts to spills, although states and tribes may implement their own, non-federal oil programs.
- Indian Tribe Trustees for natural resources are authorized to assess and recover natural resource damages, and the Trust Fund is authorized to be used for payment of Indian Tribes natural resources trustees for costs incurred in restoring/rehabilitating, etc. natural resources damaged by an oil spill.
OSWER’s Oil Program uses the authorities under both OPA and the Clean Water Act (CWA), and their implementing regulations (NCP and the Spill Prevention, Control and Countermeasure Regulation (SPCC)) to address the potential environmental threats posed by petroleum and non-petroleum oils
The Resource Conservation and Recovery Act (RCRA) governs the management of solid and hazardous waste and underground storage tanks (USTs) to ensure that wastes are managed in an environmentally safe manner. The goals of RCRA also include conserving energy and natural resources through waste recycling and recovery and reducing or eliminating waste generation.
- Based on the findings of U.S. Court of Appeals for the D.C. Circuit in Backcountry Against Dumps v. EPA (October 29, 1997), tribes cannot be treated in the same manner as states for purposes of implementing RCRA programs.
- Subtitle C (Hazardous Waste): EPA maintains direct implementation authority in Indian country.
- Subtitle D (Solid Waste): EPA cannot approve a tribal municipal solid waste landfill (MSWL) permit program as it does with states. However, EPA can issue site-specific rules in Indian country that may provide flexibility to solid waste landfill requirements at 40 CFR Part 258.
- Subtitle I (Underground Storage Tanks): EPA maintains direct implementation authority in Indian country.
The Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Law, P.L. 107-118) amends CERCLA. The Brownfields Law defines brownfields sites and authorizes funding for assessment and cleanup of brownfields properties and state and tribal response programs. The Brownfields Law limits the liability of certain contiguous property owners and prospective purchasers of brownfields properties and clarifies all appropriate inquiry (AAI) for innocent landowners to encourage revitalization and reuse of brownfields sites.
Tribes are treated as states under the Brownfields Law, with the exception that Alaska Native tribes (not including the Metlakatla Indian Community) are prohibited from receiving Section 104 funding. Because implementation authority is given to non-federal entities, Brownfields is not an authorized program, and there is no express TAS requirement for tribes. The role of tribes is voluntary; tribes may develop response programs and/or inventory, assess, and cleanup sites.
2018 BUILD Act
The Brownfields Utilization, Investment and Local Development (BUILD) Act was enacted on March 23, 2018 as part of the Consolidated Appropriations Act of 2018. The BUILD Act further amended CERCLA and reauthorized EPA’s Brownfields Program. Changes affect brownfields grants, ownership and liability provisions, and State & Tribal Response Programs. EPA is developing policy guidance to interpret the BUILD Act.
The BUILD Act clarifies that property transferred from the U.S. government to Alaska Native Corporations and Villages under the Alaska Native Claims Settlement Act is not subject to owner or operator liability, under CERCLA Section 107(a), unless the Corporation causes or contributes to release or threatened release of hazardous substances from the property conveyed to them.