ENVIRONMENTAL CODES & ENFORCEMENT

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ENVIRONMENTAL CODES & ENFORCEMENT

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  1. Tribal Solid Waste Management, ENVIRONMENTAL CODES & ENFORCEMENT by: Anan Tanbouz, P.E. & Ben Banipal, P.E.
  2. AGENDA • What is an Integrated Solid Waste Management Plan (SWMP) • Tribal Solid Waste Authority, Codes, Ordinances & Regulations • Tribal Solid Waste Enforcement Issues & Authority • USEPA Solid Waste Contacts • Summary
  3. What is an Integrated SWMP? • SWMP is not an actual SWM Program • Preparing a SWMP is the 1st step towards developing a comprehensive SWM Program • Remember, all SWM Plans are not alike • SWMP is structured based on the needs of community
  4. 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
  5. 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
  6. Components of SWMP …Continue • 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.
  7. 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
  8. 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).
  9. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues 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).
  10. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues 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)
  11. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues • 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.
  12. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues • 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.
  13. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues • 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 concurrence of the Tribe’s solid waste program.
  14. Tribal Authority and Inherent Sovereign Power to Manage and Regulate Solid Waste Environmental Codes …continues • 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.
  15. 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
  16. 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
  17. 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
  18. 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
  19. 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
  20. 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
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