01-25-89
MEMORANDUM
TO: Jim Ransom
FROM: Richard Du Bey and Grant Parker
DATE: January 25, 1989
RE: EPA's Consideration of Tribal PCB Standards as ARARs
Following is a brief description of the statutory and proposed
regulatory framework that will drive EPA's consideration and adoption
or waiver of the Tribe's PCB standards as ARARs. Generally, EPA is
obligated to adopt the standards as "applicable" state or tribal
requirements. There are certain conditions, however, under which EPA
could waive consideration of these standards. The most likely to be
considered by EPA are inconsistent application of standards, and
balancing the impacts on the Superfund if Fund moneys are required for
clean up.
EPA POLICY
EPA addresses the adoption of state and tribal criteria and
standards as ARARs guiding clean up levels in the proposed National
Contingency Plan, or NCP. The Agency states:
Section 121 of CERCLA requires that remedial actions comply with
Federal and more stringent State requirements that are legally
applicable or relevant and appropriate under the circumstances of
the release or threatened release with respect to any hazardous
substance or pollutant or contaminant that will remain on-site.
EPA's policy is to attain or exceed such ARARs during the
implementation of the remedial action. . .as well as at the
completion of the action, unless a waiver is justified. (Emphasis
supplied). 53 Fed. Reg. 51394, 51435 (December 21, 1988).
EPA's proposed NCP generally defines Indian tribes as states. 53 Fed.
Reg. at 51479 (Dec. 21, 1988). For state or tribal standards to be
considered as ARARs, they must be "of general applicability" as well as
be "legally enforceable." 53 Fed. Reg. at 51437. EPA further defined
these two terms as follows:
The phrase legally enforceable' refers to State regulations or
statutes which contain specific enforcement provisions or are
otherwise enforceable under State law. EPA expects that State
laws or standards which are considered potential ARARs have been
issued in accordance with State procedural requirements.
53 Fed. Reg. at 52348.
The phrase of general applicability' is meant to preclude
consideration of State requirements promulgated specifically
for one or more CERCLA sites as potential ARARs. EPA believes
that Congress did not intend CERCLA actions to comply with
requirements that would not also apply to other similar
situations in the State. Id.
The Tribe's proposed PCB Standards should be declared legally
enforceable under Tribal law. The criteria, as ambient standards,
should clearly apply to all polluters, not just the GM Massena
Superfund Site.
CERCLA mandates remedial action that is "protective of human health
and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment technologies or resource
recover technologies to the maximum extent practicable." 42. U.S.C.
Section 9621 (b)(1). See also 42. U.S.C. Section 9621 (d)(1)
(requiring at a minimum that clean up protect human health and the
environment). Protection of human health and the environment is
mandatory.
WAIVER CRITERIA
The proposed NCP has identified situations that would quality for
waiver of an ARAR. 53 Fed. Reg. at 52348. CERCLA and the proposed
NCP allow waiver of tribal or state requirements only when such
standards or criteria constitute:
(A) Interim Measures - waiver would only be an interim matter;
(B) Greater Risk to Health and the Environment - as a result of
application of the standards there would be greater risk than if ARAR
not applied:;
(C) Technical Impractability - the standard or criteria is not
realistic from a standpoint of engineering and reliability;
(D) Equivalent Standard of Performance - if an ARAR stipulated a
specific design criteria or operating standard, but another ARAR would
achieve the equivalent clean up result;
(E) Inconsistent Application of State Requirements - when state or
tribe does not apply standards consistently; or
(F) Fund Balancing - when such a burden would be placed on the
Fund that standard remedial action at other sites would be jeopardized.
53 Fed. Reg. at 1438-551440.(1)
TRIBAL ARARS
The Tribe's proposed PCB ambient standards would be Applicable
Requirements, generally applicable throughout the Reservation, but
which address a chemical that happens to be located at the GM Massena
Superfund Site. (2) The PCB Standards will be chemical specific
requirements adopted as a matter of tribal law to protect human health
and the environment.(3)
Note that EPA has a policy of analyzing chemical specific
(1) See also EPA's "CERCLA Compliance with Other Laws Manual"
(Aug. 8, 1988), pp. 1-71 - 1-75. Congress specifically addressed ARARs
Waivers in CERCLA as follows:
(A) the remedial action selected is only part of a total
remedial action that will attain such a level or standard of control
when completed;
(B) compliance with such a requirement at that facility will
result in greater risk to human health and the environment than
alternative options.
(C) compliance with such requirements is technically
impracticable from an engineering perspective;
(D) the remedial action selected will attain a standard of
performance that is equivalent to that required under the otherwise
applicable standard, requirement, criteria, or limitation, through use
of another method or approach;
(E) with respect to a State standards, requirement,
criteria, or limitation, the State has not consistently applied (or
demonstrated the intention to consistently apply) the standard,
requirement, criteria, or limitation in similar circumstances at other
remedial actions within the State; or
(F) in the case of a remedial action to be undertaken solely
under section 104 using the Fund, selection of a remedial action that
attains such level or standards of control will not provide a balance
between the need for protection of public health and welfare and the
environment at the facility under consideration, and the availability of
amounts from the Fund to respond to other sites which present or may
present a threat to public health or welfare or the environment, taking
into consideration the relative immediacy of such threats. 42 U.S.C.
Section 121 (d)(3).
/2/ See Draft Guidance, "CERCLA Compliance with Other Laws", OSWER
Dir. 9234.1-01 (Aug. 1988), at 1-10.
/3/ See Id. at 1-13.
Memorandum
January 25, 1989
Page 4
standards identified as probable ARARS according to procedures outlined
in the Superfund Public Health Evaluation Manual. "CERCLA
Compliance..." Id. at 1-59. Even though EPA may be reluctant to waive
the Tribe's standards, we should be ready to defend the standards using
this Manual's criteria.
I. ADOPTION BY EPA OF TRIBAL STANDARDS AS ARARs
A. Tribal Governmental Power to Regulate Pollution of the
Reservation Environment
1. Sovereign Tribal Governments
Indian tribes such as the St. Regis Mohawk Tribe, have long been
recognized as sovereign nations./1/ Tribal sovereign powers include
rights to air, land, water and other natural resources over which the
tribe has jurisdiction and control./2/ A tribe's sovereign power to
protect and regulate natural resources extends over both its members
and activities impacting tribal resources within its territory./3/ The
Courts have recognized tribal sovereign police power to regulate
activities in Indian Country
/1/ Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
/2/ Tribal sovereignty provides authority to implement civil
regulatory controls over hazardous wastes, and to bring actions patriae
on behalf of reservation citizens. See Merrion v. Jicarilla Apache
Tribe, 102 S.Ct. 894, 901-906 (1982).
/3/ See eg. Worcester v. Georgia, supra; Mescalero Apache Tribe v.
Jones, 411 U.S. 145 (1973); White Mountain Apache Tribe v. Bracker, 448
U.S. 136 (1980); Merrion v. Jicarilla Apache Tribe 455 U.S. 130, 102 S.
Ct. 894,903 (1982); and Iowa Mut. Ins. Co. v. LaPlante ____ U.S.____,
107 S.Ct. 971,975 (1987).
to protect public health and welfare./4/
The United States Supreme Court has recognized a sovereign
government's interest in protecting the air land and water from
polluting sources - even pollution sources beyond the sovereign's
territory./5/ In Georgia v. Tennessee Copper, the Court noted that a
state could be protected form an out of state pollution source:
It is a fair and reasonable demand on the part of a sovereign
that the air over its territory should not be polluted on a great
scale by sulphurous acid gas, that the forests on its mountains, be
they better or worse, and whatever domestic destruction they have
suffered, should not be further destroyed or threatened by the act of
persons beyond its control. . ./6/
This was recently confirmed in 1987 by the Eighth Circuit Court of
Appeals which recognized that:
The Supreme Court of the United States has held that state and
federal governments suffer injury to their "quasi-sovereign"
interests when pollutants are released into the soil, water, and
air within their jurisdiction./7/
Tribes, like states, have these quasi-sovereign governmental
/4/ See Santa Rosa Band of Indians v. Kings County, 532 F.2d 655
(9th Cir. 1975); Knight v. Shoshone & Arapahoe Tribes, 670 F.2d 900
(10th Cir., 1982), Yakima v. Whiteside 828 F.2d 529 (9th Cir. 1987),
cert. granted, 57 U.S.L.W. 3031 (July 19, 1988). See also Village of
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (recognizing
sovereign police power authority to zone). See also Continental Ins.
v. N.E. Pharm. & Chem. Co., 811 F.2d 1180, 1185 (8th Cir. 1987)
(recognizing that pollution affects governmental "quasi-sovereign"
interests).
/5/ Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907) See
also Illinois v. City of Milwaukee, 406 U.S. 91, 101-07 (1972)
/6/ 206 U.S. at 238.
/7/ Continental Ins. v. N.E. Pharm. & Chem. Co., 811 F.2d 1180,1185
(8th Cir. 1987), citing Georgia v. Tennessee Copper Col, 206 U.S. 230,
237 (1907).
powers. Thus tribes can promulgate standards and policies that affect
protect the environment and human health, and drive the clean up of
polluted air, land and water.
The proprietary rights of Indian tribes provide independent support
for the assertion of tribal clean up standards and goals.8 As a
property owner, an Indian tribe may control activities potentially
affecting natural resources on lands it owns, lands that are held trust
by the federal government, or resources protected by treaty rights.9
2. Administrative versus Legislative Governmental Functions
As a sovereign government, the St. Regis Mohawk Tribe can act
through the Tribal Council to exercise the tribal police power to
protect the health, welfare and safety of the reservation environment
and reservation population. A sovereign tribe can chose its method of
government. There are no tribal or federal requirements that
environmental standards must be adopted through the congressional style
legislative tribal governments. Standards must, however, be adopted
and recognized as tribal law.
/8/ See "Federal Power Over Indians", 132 U. Penn. L. Rev. 194,
219-222 (for discussion of the relationship of tribal property rights
to the federal government's plenary power). See also Morris v.
Hitchcock, 194 U.S. 384 (1904); and Merrion v. Jicarilla Apache Tribe
455 U.S. 130; 102 S.Ct. 894,906 n. 12 (1982).
/9/ For instance an Indian tribe may condition hazardous waste
clean up or disposal activities on protection of tribal resources under
tribal standards.
Sovereign Indian tribes are under no obligation to adopt the
tri-parte form of government chosen by the United States. EPA,
however, may be prone to view tribal governmental acts by comparison
with administrative or legislative-type government. Thus it is
important to remember that the United States Constitution does not
mention, nor does it foresee the existence of administrative bodies.
The administrative system was developed in response to increasingly
complex governmental and regulatory requirements. Administrative
agencies only act on powers delegated by the legislative or law making
branch of government./10/
Law making bodies, whether the Congress of the United States, or
the Tribal Council of the St. Regis Mohawk Tribe, can enact standards or
goals for ambient environmental quality. For instance the Clean Water
Act establishes the goal of eliminating pollutant discharges into
navigable waters and achieving fishable and swimmable waters./11/
Congress also established numeric standards for sulfur dioxide and
particulate matter under the Prevention of Significant Deterioration
Section of the Clean Air Act./12/ These goals and standards were
adopted by Congress through its legislative function, not through the
promulgation of
/10/ See e.q. Schechter Corp. v. United States 295 U.S. 495,529-31
(1934).
/11/ 33 U.S.C. Section 1251 (a)(1) and (2).
/12/ 42 U.S.C. Section 7473 (b).
administrative standards by EPA.
Thus, the St. Regis Mohawk Tribe may act through its Tribal
Council to enact tribal laws and standards in the exercise of the
Tribe's sovereign authority. These laws and standards must be adopted
by EPA as ARARs unless the Agency can demonstrate sufficient criteria to
substantiate a waiver of ARAR application.
3. Tribal Ability to Develop Water, Air, Sediment and Soil
Standards
Congress has recently affirmed EPA's policy of treating Indian
tribes on a government-to-government basis as evidenced by recent
amendments to the Clean Air Act, the Safe Drinking Water Act and
Superfund./13/
Under CERCLA, Indian tribes are to be afforded substantially the
same treatment as states regarding consultation for remedial actions,
which requires application of tribal clean up standards as ARARs./14/
In the proposed National Contingency
/13/ See recent amendments to the Safe Drinking Water Act,
42 U.S.C. 300f et seq., P.L. 99-339 (1986); The Clean Water Act, 33
U.S.C. 1251 et seq. P.L. 100-4, (1987); and Comprehensive Environmental
Response, Compensation and Liability Act (Superfund), 42 U.S.C. 9610
et seq. P.L. 99-499 (1986). These amendments acknowledge the
sovereign status of Indian tribes and confirm EPA's ability to treat
tribes as states for the purposes of implementing and regulating
environmental programs.
/14/ CERCLA Section 126(a) (treatment of tribes as states),
referring to Section 104(c)(2) (consultation on remedial actions),
which is incorporated in Section 121 (clean up standards). In
addition, under the Clean Water Act, Indian tribes can develop
reservation water quality standards in a manner similar to states.
CWA Section 518(e) (affording tribes treatment as states), that
references Section 303 (development of water quality standards).
Plan (NCP), EPA has demonstrated its intent to treat Indian tribes
substantially as states, including recognition of tribal ARARs./15/
This federal recognition is in addition to inherent powers of an
Indian tribe to develop standards for pollutants or the ambient
quality of the reservation environment.
B. EPA Adoption of Clean Up Standards
ARARs may consist of goals such as fishable, swimmable, or drinking
quality water, as well as specific numerical standards./16/ Superfund
requires consideration of remedial action standards when there is:
any promulgated standard, requirement, criteria, or limitation
under a State environmental or facility siting law that is more
stringent than any Federal standard, requirement, criteria, or
limitation. . ./17/
This broadly phrased Congressional mandate to consider requirements in
addition to promulgated standards indicates that Congress did not
intend to limit ARARs to quantities adopted
/15/ The Agency included Indian tribes within the definition of
states for most purposes in the proposed NCP. 53 Fed. Reg.
51394,51398,51470 (Dec. 21, 1988).
/16/ See EPA's "CERCLA Compliance with Other Laws Manual" (Aug. 8,
1988); "Interim ARARs Guidance" 52 Fed. Reg. 32496,32497 (Aug. 27,
1988); and EPA's "Interim Guidance on Compliance with Applicable or
Relevant and Appropriate Requirements", (EPA's Interim ARARs Guidance)
No. 9234.0-05 (July 9, 1987) at 6.
/17/ CERCLA Section 121(d)(2)(A)(ii).
pursuant to accepted Administrative Procedure Act processes./18/
c. Standards Adopted by Tribal Government -- Sovereignty and the
Legislative Function.
As discussed above, Indian tribal governments may adopt standards
or goals for ambient environmental quality as a matter of tribal law.
This can be by tribal ordinance or resolution. Tribal custom and legal
requirements determine this process. Such laws, if not expressly
waived, must be recognized by EPA as ARARs. CERCLA requires that the
degree of clean up must be controlled by a law such as the Tribe's
proposed PCB standards./19/
II. CONCLUSION
The St. Regis Mohawk Tribe is a sovereign government and, as such
can enact laws that regulate the quality of the reservation environment.
EPA must recognize tribal laws describing goals or standards that apply
to Superfund clean up actions.
file no. 8860.7
gdpwkdsk 1-89-1\pcbstnd2.hrg
January 25, 1989 - 10:55 am
/18/ If EPA only accepted promulgated standards, the Agency would
be violating one of the fundamental notions of statutory construction by
rendering language in the statute ("requirement, criteria or limitation
under. . .law") superfluous. See e.g. Chelan County v. Fellers, 400
P.2d 609, 65 Wash. 2d 943,946 (1965).
/19/ CERCLA Section 121 (d)(2)(A)(ii).
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