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Region 10 Enforcement Procedures in Indian Country


May 28, 1998

Reply To
Attn Of: OEC-157

MEMORANDUM

SUBJECT: Region 10 Enforcement Procedures in Indian Country

FROM: Chuck Clarke
TO: EPA Region 10


The Region is undertaking enforcement activities on Indian reservations and other areas in Indian Country to directly implement federal environmental laws on lands where EPA has a government-to-government relationship with the tribal government. In some cases, the Region has entered into formal agreements with tribes that provide for coordination of enforcement activities when EPA is the lead agency.

The purpose of this memo is to outline the procedures in Region 10 for enforcement activities on Indian reservations and other areas in Indian Country. Region 10 will carry out enforcement and compliance assurance activities in a timely and effective manner that is consistent with EPA’s Indian policies, the Region’s agreements with Indian tribes, and EPA enforcement policies. By following these procedures, EPA Region 10 staff and managers will ensure that the Tribes rights to self-government are respected, and that EPA’s enforcement discretion and information are safeguarded.

GUIDING PRINCIPLES

EPA follows a long-standing Indian Policy that EPA will operate under a government-to-government relationship with tribal governments, promote tribal self-government, and recognize tribal governments as the primary parties for managing the environment on Reservations (“EPA Policy for the Administration of Environmental Programs on Indian Reservations,” November 8, 1984). EPA’s policy also is that the Agency will administer environmental programs in Indian country until a Tribe assumes regulatory responsibility. The state programs that EPA has approved generally do not extend into Indian country, which means that EPA and the Tribes retain primacy for federal environmental programs. Under federal law, states have limited authority in Indian country, and generally are precluded from enforcing their civil regulatory programs there absent an explicit Congressional authorization and EPA approval. The Region’s enforcement activities in Indian country should be consistent with the President’s directive of April 1994 that each federal agency consult with tribal governments to the greatest extent practicable prior to taking actions that affect an Indian tribe and its resources. EPA’s Indian Policy also establishes that in those cases where a facility is owned or managed by a tribal government, EPA will work cooperatively with tribal leadership to achieve compliance with federal environmental statutes.

In sum, the Region’s enforcement procedures require that when planning and undertaking enforcement actions in Indian country, EPA’s approach is to share information about the visit with the tribal government if sharing that information will not jeopardize investigations or enforcement proceedings. EPA generally will notify tribal governments in advance of visits on the reservation, and will inform the tribal government of the results or planned enforcement actions. The EPA enforcement program will generally inform the assigned Tribal Coordinator of planned activities. If advance notice is not made due to circumstances beyond the control of the EPA staff or if the visit involves an unannounced inspection, the tribal government should be contacted as soon as possible.

ROLES AND RESPONSIBILITIES

EPA Tribal Coordinators: Working either in the Operations Offices or the Regional Office, the Region has assigned Tribal Coordinators to support and facilitate EPA’s activities with respect to each Tribe in the Region, and they are responsible for developing and maintaining productive working relationships with Tribal staff. The Tribal Coordinators provide up-to-date information on tribal government contacts and other activities taking place on the reservation, and should be made aware of enforcement activities that take place with their assigned Tribes. Where the assigned Tribal Coordinator works in the state Operations Office, communications with the Tribal Coordinator will also provide for notifying the Ops. Office. The Tribal Coordinator will also be responsible for informing the Tribal Office of enforcement matters involving a tribal government.

Tribal Office: Assists the Region to consider Tribal interests and concerns, to operate with a government-to-government relationship, and to follow EPA policies and procedures regarding Indian tribes. The Director serves as the Regional Lead for developing and maintaining productive working relationships with all Tribal governments. Must be consulted when Region’s actions involve tribal interests or concerns.

Operations Offices: Responsible for relating to tribal governments in their specific states, working with the Tribal Office Director, and with much of the EPA staff assigned with responsibility for inspections, providing technical assistance, and supporting enforcement actions. The Tribal Coordinator working in the Operations Office is generally the point of contact for the Operations Office and specified Tribes, while the enforcement program operates under separate authorities.

Office of Enforcement and Compliance (OEC): Responsible for coordinating enforcement activities in the Region and with EPA headquarters programs and OECA, including management of the Region’s Enforcement Forum to coordinate enforcement activities in Indian country between the Program Enforcement Staff, the Tribal Office, the Operations Office and Tribal Coordinators.

Office of Regional Counsel (ORC): ORC must be consulted whenever questions arise over the potential liability of a tribal government, application of federal Indian law and EPA policies, or when the action will require consultation with EPA headquarters offices.

EPA Headquarters Offices: Delegations require the Region to consult with the Office of Enforcement and Compliance Assurance (OECA) and the Office of General Counsel (OGC) when certain activities will involve facilities owned or managed by Tribal governments, or may set precedence nationally.

Other Federal Agencies: When EPA staff work with other federal agencies, or with state and local personnel, it is important that those agencies recognize EPA’s policies and procedures that apply in specific situations.

OPERATING PROCEDURES [Complete checklist Attachment A for each visit]

1. Notification. EPA program enforcement staff will use best efforts to coordinate with tribal government officials prior to entering a Reservation for the purposes of conducting enforcement activities and providing compliance and technical assistance, by taking the following steps:

2. Determining facility ownership. As part of inspecting facilities on a Reservation or preparing for an inspection, EPA program enforcement staff will determine whether the facility is owned or managed by the tribal government. Generally, a facility in which a tribal government (not simply a tribal member) has a controlling interest should be treated as if owned or managed by that government. The views of the Tribal government on its ownership or management should be sought before a final decision is made. EPA program enforcement staff must consult with the Office of Regional Counsel (ORC) when a question arises as to the role of the tribal government as an owner or manager.

3. Privately owned or managed facilities. In cases where facilities located within Indian country are not owned or managed by a tribal government, EPA may respond to noncompliance in the same manner in which it does to the noncompliance of non-tribal facilities located outside Indian country. In addition:

4. Facilities owned or managed by Tribal Governments. For facilities owned or managed by the tribal government, EPA will work cooperatively with the tribal government to assist the facility to come into compliance before considering an enforcement action. EPA staff working on enforcement activities in Indian country must be familiar with procedures established by the Region, OECA and American Indian Environmental Office (AIEO).

5. Enforcement at Facilities owned or managed by Tribal Governments. Should the cooperative efforts of paragraph 4 fail to achieve compliance, the Region enforcement program may proceed with an enforcement action similar to one it would take for a non-tribal facility, but in accordance with EPA national guidance. The assigned Tribal Coordinator or the Operations Office, the Tribal Office, ORC, and specified EPA headquarters offices must be consulted prior to making a final decision to initiate a formal enforcement action, including issuing a written notice of violation.

6. Unannounced Inspections.

EPA enforcement programs have the discretion to conduct unannounced inspections and investigations in Indian country. As operating principles:

For a facility owned or managed by the tribal government, EPA should inform the tribal government that EPA will be visiting identified facilities owned or managed by the tribal government on a regular, periodic basis. While EPA will not provide advance information when that visit will occur, EPA will inform the tribal government of the results.

For privately-owned facilities, EPA will work with the Tribe to ensure that it recognizes and concurs with the need to keep enforcement information confidential. In general, EPA will provide the tribe with advance notice of visits to privately-owned facilities and the results of inspections except in specific instances where the enforcement program believes that sharing the information may jeopardize the enforcement investigation.

CONCLUSION

Region 10 staff will follow the procedures outlined in this memo, including completion of the checklist that is Attachment A to this guidance, whenever visiting Indian country for enforcement and compliance activities. By coordinating notification of Tribes with the Region’s Tribal Office and the assigned Tribal Coordinators, the Region’s enforcement programs will assist EPA to operate on a government-to-government basis with the Indian tribes in this Region while enforcing federal environmental laws in Indian country.

cc: Executive Team
Region 10 Indian Tribes


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