On May 2, 2007, The U.S. Environmental Protection Agency (“EPA”) issued a Final Rule revising the 1990 regulations governing Tribal involvement in the Superfund program. A key objective of the new regulations, which become effective July 2, 2007, is to “reduc[e] unnecessary obstacles to Tribal Involvement” in Superfund activities. The most signifi cant changes for Indian tribes include:
- The EPA has completely eliminated the 10% Tribal cost share responsibility for all new Superfund remedial, removal, Support Agency and Core Program agreements.
- The EPA has eliminated Tribal obligations to establish “jurisdiction” over Superfund sites as a pre-condition to obtain federal funding for Support Agency and Core Program agreements.
- The EPA’s new regulations formally codify existing policies authorizing intertribal consortia, in addition to individual Indian tribes, to receive federal fi nancing under Superfund agreements.
These key changes are discussed below. Also discussed are additional revisions to the new Subpart O regulations that offer expanded opportunities for Tribal government involvement in the Superfund program.
More than 25 years ago, in the wake of infamous environmental disasters such as Love Canal, the federal Superfund program was established to address the problem of abandoned hazardous waste sites. Under Section 126 of the statute, Congress decreed that the governing body of Indian Tribes “shall be afforded substantially the same treatment as a State” in implementing key aspects of the Superfund program (42 U.S.C. §9626(a)).
In 1990, the EPA issued regulations governing the nitty-gritty of how States and Tribes participate fi nancially in the Superfund program. (40 C.F.R. § 35, Subpart O). Under these so-called “Subpart O” regulations, States and Tribes formally participate through the use of Cooperative Agreements and Superfund State Contracts. Cooperative Agreements are legal instruments used by the EPA to transfer federal funds, property or services to Indian tribes that lead Superfund responses, or to those that incur costs when supporting federally-led Superfund activities. In addition, since 1987, so-called “Core Program” Cooperative Agreements also have been available to provide federal fi nancial support for Superfund administrative activities not linked to the remediation of a particular site. Cooperative Agreements are the key federal source of Superfund funding to states, political subdivisions, and Indian tribes, involving grants of more than $360 million from 2000 to mid-2006.
Revisions to the Superfund Subpart O Regulations EPA’s new revisions to the Subpart O regulations are contained in a Final Rule published in the Federal Register on May 2, 2007 entitled, “Cooperative Agreements and Superfund State Contracts for Superfund Response Actions.” (See 72 Fed. Reg. 24496-522). The new regulations will apply to all new Cooperative Agreements and Superfund State Contracts entered into on or after the effective date of the regulation. Further, although the revised regulation automatically will apply prospectively, upon request the EPA also may agree to amend existing Cooperative Agreements or Superfund State Contracts to make the new regulations applicable to all work performed after the date the EPA approves such an amendment.
With over 560 federally-recognized tribes throughout the United States, and hundreds of abandoned hazardous waste sites on or affecting Indian lands, Tribal involvement in Superfund response actions is critical. The following key changes to 40 C.F.R. Part 35, Subpart O likely will encourage and facilitate increased Tribal involvement in Superfund activities:
- Under the new regulations, the EPA has eliminated all Tribal 10% cost sharing requirements for remedial, removal, support agency and Core Program cooperative agreements. The elimination of cost sharing requirements will remove an economic obstacle currently facing Tribal governments, and likely will encourage greater participation in Superfund Response Actions.
- The new regulations eliminate the requirement that Tribal governments applying for Core Program or support agency Cooperative Agreements fi rst demonstrate “jurisdiction” over the Superfund site at issue. To be eligible to receive federal fi nancing through Superfund Cooperative Agreements, Indian tribes will still need to demonstrate that they are federally recognized, but will no longer be required to make a “jurisdictional” showing under the requirements of 40 C.F.R. 300.515(b) (the National Contingency Plan).
- The new regulations broaden the spectrum of eligible participants by formally codifying the EPA’s 2002 policy known as “Update to EPA Policy on Certain Grants to Intertribal Consortia.” Thus, an intertribal consortium is now eligible to receive federal Superfund funding through a Cooperative Agreement, provided that all individual Tribes of the consortium meet the requirements for Cooperative Agreements and authorize the consortium to apply for and receive assistance.
- The new regulations also broaden the spectrum of Superfund activities that are eligible for federal funding through the use of Cooperative Agreements. In particular, the EPA has expanded eligible support agency activities to include participation in fi ve-year review programs. These critical reviews ensure the continuing effectiveness of remedial actions taken at Superfund sites.
- Finally, Subsection O, as revised, will allow the consolidation of certain Superfund activities into a single Cooperative Agreement. The revision allows the EPA to grant a single Cooperative Agreement for multiple activities; a single activity at multiple sites; and multiple activities at multiple sites. For example, the revision would allow the EPA to award a single Cooperative Agreement to a Tribe or intertribal consortium for core program, preremedial, and support agency activities, eliminating the need for multiple cooperative agreements.
In 1984, the EPA made a landmark commitment to work with Indian tribes on a government-to-government basis to promote protection of the environment and public health on Indian lands. (See 1984 EPA Policy for the Administration of Environmental Programs on Indian Reservations). Despite the EPA’s history of leadership efforts, considerable obstacles remain to full Tribal participation in federal environmental protection programs, including Superfund. (See 2004 EPA Offi ce of Inspector General Report, “Tribal Superfund Program Needs Clear Direction and Actions to Improve Effectiveness”).
However, as another positive step in the right direction, EPA’s new revisions to the Subpart O regulations governing Superfund Cooperative Agreements and State Contracts should assist Indian tribes and intertribal consortia to assume an enhanced role in the Superfund program as it impacts Indian lands.