Region 8

Region 8 Guidance For Compliance Monitoring, Compliance Assistance and Enforcement Procedures in Indian Country

The purpose of this document is to set forth the Environmental Protection Agency (EPA) Region 8's procedures for compliance assistance and enforcement activities in Indian country.

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General Principles

The Federal government has a trust responsibility to federally-recognized Indian tribes that arises from treaties, statutes, executive orders 2 and the historical relations between the United States and Indian tribes. The Federal government's trust responsibility creates a unique legal and political relationship between the Federal government and federally-recognized Indian tribes. Consistent with this unique relationship, EPA establishes regular and meaningful consultation and collaboration with tribes on a government-to-government basis when EPA activities may affect tribal governments. In addition, EPA Region 8's primary focus will be to protect human health and the environment in "Indian country," as defined in section 1151 of title 18 of the United States Code (18 U.S.C. § 1151).

EPA has developed policies and guidance consistent with the trust responsibility and the government to government relationship with federally-recognized Indian tribes. 3 Included in those policies are specific principles regarding compliance assistance measures and enforcement in Indian country. The purpose of this document is to further elaborate on the procedural steps that should be taken when EPA discovers that a facility in Indian country is not in compliance with Federal environmental laws.


Determining the Tribe's Connection to the Facility

Region 8's policy is to use one of two paths to address noncompliance in Indian country. If a facility (whether it is within or outside of Indian country) is owned (51% or more), managed or controlled by a Tribal government (not just by an individual Tribal member), all of the procedures outlined below (except step 4c) apply. If the facility is not owned, managed or controlled by the Tribal government, then only the procedures outlined in steps 1, 2, 3, and 4c apply, and EPA generally will address the noncompliance as we would in situations involving private facilities located outside of Indian country. EPA will also provide appropriate contact and consultation with the Tribal government, and any other specific treatment EPA decides is warranted due to other substantial interests expressed by the tribal government. Where the situation is not clear as to how to proceed (e.g., where EPA needs to determine whether the tribe has a substantial proprietary or other tribal interest), the matter will be dealt with on a case by case basis.

For tribal facilities, EPA's process is to provide reasonable and adequate compliance assistance aimed at assisting such facilities to achieve compliance with Federal environmental laws. Direct formal EPA enforcement action through the administrative or judicial processes will only be considered when EPA determines that: 1) a significant threat to human health or the environment exists; 2) such action would reasonably be expected to achieve effective results in a timely manner, and 3) the Federal government cannot utilize other alternatives to correct the problem in a timely fashion.


Procedures Applicable to All Inspections and Noncompliance at Facilities Located in Indian Country

Set forth below are the procedures for conducting inspections and responding to noncompliance at facilities in Indian country, and at tribally owned, managed or controlled facilities located outside Indian country.

1. Prior to a planned EPA inspection in Indian country (and for record review situations where noncompliance is confirmed), and consistent with the Regional Indian policy, the responsible EPA program will inform the Tribal government by letter from the Assistant Regional Administrator (ARA) for that program. 4 If EPA knows that the facility is owned, managed or controlled by the Tribal government, it is not necessary to include the language quoted below. In all other cases, EPA will include the following language in the letter to the Tribal government (with a copy to TAP): "During the inspection, EPA will document any noncompliance with Federal environmental laws found at this facility, and proceed with appropriate action to address the problem. [For record review situations, use the following alternate first sentence: EPA has documented noncompliance with Federal environmental laws at this facility, and will proceed with appropriate action to address the problem.'] EPA has no evidence to indicate that the Tribe owns, manages or controls this facility, so we may address such noncompliance by issuing an order or other administrative or judicial enforcement action, while keeping the Tribal government fully informed of our efforts and progress. This is ordinarily the fastest way to return a facility to compliance and to deter it and other facilities from violating the law in the future. If, on the other hand, a facility is owned (51% or more) or managed or controlled by a Tribal government (this does not include ownership, management, or control by an individual Tribal member), consistent with the Federal government's trust responsibility, EPA will offer appropriate assistance to the Tribal government in the matter, prior to considering direct formal enforcement actions. EPA and the Tribal government would work together to assist the facility to achieve compliance. Accordingly, we now ask if the Tribal government owns, manages or controls this facility and seek any other facts or information you wish to provide in writing to aid EPA in our efforts to address any noncompliance that may be found at this facility. Other information could include any tribal ownership interest (including less than 51%), substantial economic benefit the facility provides your Tribal government (but not just individuals), essential or unique services it provides the Tribal government, whether the facility is located on Tribal trust land, or any other information you would like to share. EPA will consider any such information submitted in reaching the Agency's decision as to the appropriate enforcement response at the facility. Please mail me such information within two weeks of the date of this letter, with a copy to the Tribal Assistance Program, Region 8. If we do not receive any information from the Tribe, we will proceed as necessary, and keep the Tribal government fully informed of our actions. Thank you for your cooperation and assistance."

2. Noncompliance discovered and documented at facility.

3. Region 8's Offices of Enforcement, Compliance and Environmental Justice (ECEJ) and Partnership and Regulatory Assistance (OPRA, including TAP and Water Program) inform each other of the noncompliance immediately (no later than within one week), if the noncompliance is confirmed and then would be enough to warrant EPA contact with the facility. 6 TAP will notify the other programs in all instances of noncompliance.

4. A. If the facility is owned 51% or more by a tribal government (but not just an individual tribal member), or managed or controlled by a tribal government, proceed with step 5, below.

B. If the tribal government has provided information for EPA's consideration that TAP believes justifies some approach other than a formal enforcement action, within one week TAP will notify the Technical Enforcement Program (TEP) and, if applicable, the Water Program, and the Legal Enforcement Program (LEP) management of the situation and the alternatives that should be considered. ECEJ, OPRA, and the Office of Regional Counsel (ORC) will discuss, at the next Case Screening Committee (CSC) meeting, whether such information warrants treating the facility in some manner other than with a formal enforcement action. EPA's response may range from treating the facility as if tribally owned, managed or controlled, to treating it in a manner similar to private facilities without tribal interest. If agreement cannot be reached, the issue will be immediately sent to the ARA's for decision by them or the Regional Administrator (RA) or Deputy Regional Administrator (DRA). If, after consultation with the tribal government, EPA concludes that the information provided does not warrant any different treatment based on the claimed tribal interest, an EPA ARA will so inform the Tribal Chair or President via an explanatory letter and, if necessary, follow-up calls or meetings. EPA will then proceed as with other similar facilities outside Indian country, while fully communicating with the tribal government as required by EPA policies.

C. If the facility is owned, managed or controlled by: (1) a government other than a tribe; (2) an individual; or (3) a non-tribal corporation, partnership or other organization, and the tribal government has not provided EPA with any additional information to consider, the following steps (5. to the end) do not apply, and EPA will proceed as with other similar facilities outside Indian country, while fully communicating with the tribal government consistent with EPA policies. For such facilities, the enforcement team should consult Regional policy and TAP to ensure proper communication with the tribal government is maintained throughout the case. Once noncompliance is discovered at a privately-owned facility located in Indian country, ECEJ, (or the Water Program) will immediately notify TAP and ORC, the case will be discussed at the Case Screening Meeting, and an enforcement attorney will be assigned. At a minimum, LEP will coordinate the following: (1) ECEJ (or the Water Program) and TAP will notify the tribal government of the noncompliance (except in specific instances where the enforcement program believes sharing the information may jeopardize the enforcement investigation); (2) ECEJ (or the Water Program) and TAP will solicit and consider the opinion of the tribal government on a proposed enforcement response letter, including consideration of whether the tribal government is pursuing or planning to pursue an independent enforcement action (Attachment A is a useful sample); (3) EPA will copy the tribe on letters and inspection results that are transmitted to the regulated entities; and (4) program staff and TAP will update the tribal government contact on the progress and results of enforcement activities.


Preparing for Compliance Assistance and Regional Discussions for Tribal Facilities

5. Within one month (or any standard time period established by the applicable program) of the discovery of noncompliance (if the noncompliance is confirmed and then would be enough to warrant EPA contacting the facility), the applicable program will (a) research the facility's compliance and compliance assistance history, and (b) provide the history and inspection or other report in writing to TAP and ORC (and ECEJ, in the case of other programs). Attachment B provides a background and examples of compliance assistance activities and a sample compliance assistance history.


Information Letter to Tribe

6. The applicable program will send a draft informational letter to TAP and ORC for review within one week of the internal circulation of the final inspection or other report confirming noncompliance and compliance assistance history. The draft informational letter will contain information regarding the nature of the noncompliance, with a copy of the final inspection or other report confirming noncompliance and compliance assistance history. TAP will have one week to review and concur on the draft informational letter. 7 Attachment C is a sample information letter.

7. The informational letter then will be sent to the Tribal Chair or President (with copies to the tribal government's environmental director and the facility manager, and enclosing an extra copy for the tribe to share with legal counsel as they see fit) from an ARA.

8. OPRA will communicate with the Tribe at an appropriate level as a follow-up to the informational letter.

Discussion/Decision on Compliance Assistance

9. ECEJ, OPRA, and ORC will meet within two weeks of the internal distribution of the final inspection or other report and compliance assistance history. The purposes of the EPA internal meeting are to: 1) discuss the facility's compliance history and any compliance assistance that has been given; and 2) decide what type of compliance assistance is appropriate to address the current noncompliance.

If the meeting participants agree on the type and nature of compliance assistance to provide, ECEJ (or, if applicable, the Water Program) will draft a compliance assistance letter to the tribal government.

If ECEJ and OPRA cannot agree on the type and nature of compliance assistance to provide, the issue will be scheduled for decision at the next weekly CSC meeting, including OPRA and ORC. If ECEJ and OPRA still disagree on our course of action, the matter is immediately sent to the ARA's for ECEJ and OPRA for decision. If necessary, the ARA's will take the issue to the RA.

10. The compliance assistance letter will include: 1) a description of the type and nature of the assistance; 2) the time[s] compliance assistance will be offered/available; 3) a list and schedule of action[s] the tribe and facility need to take to achieve compliance; 4) a list of documentation the tribe and facility need to provide to EPA; 5) a date by which the Region will again assess the status of the facility's compliance, and (6) a statement that continuing noncompliance may result in the filing of a formal enforcement action including civil penalties.\

11. A draft of the compliance assistance letter will be sent to the tribal government, including an offer to consult on its contents. OPRA will communicate with the Tribe at an appropriate level as a follow-up to the compliance assistance letter. After consultation (or, if no response, after two weeks), the final letter will be sent and compliance assistance provided.


Assessment of Compliance Assistance and Discussion of Further Compliance Assistance or Enforcement Options

12. EPA will communicate with the tribal government (Chairman or President and environmental director) as a follow-up to the compliance assistance provided.

13. If compliance assistance is provided as described in the letter, and compliance is still not achieved on the assessment date, then ECEJ or OPRA will inform each other immediately (no later than within one week) and schedule the issue for the next CSC (with OPRA and ORC) meeting (or the one after, if scheduling so requires).

14. If ECEJ (or the Water Program) may propose formal enforcement action against the tribal facility, it will list in writing how the circumstances meet the three criteria set forth in the 1984 Indian policy. This list will be distributed to ECEJ, TAP and ORC at least one week prior to the case screening committee meeting and will include any attachments of referenced documents that are not already in the possession of ECEJ, TAP and ORC. Attachment D lists these criteria and some suggestions for factors to consider.

15. The CSC, OPRA and ORC will take into account any inspection, compliance, and compliance assistance history of the tribal facility, and discuss the merits of rendering further compliance assistance and/or taking formal enforcement action.
If the ECEJ and OPRA agree on the appropriateness of providing further compliance assistance, loop back to step 9, above. If ECEJ and OPRA disagree on whether to proceed with a formal enforcement action (an administrative or judicial complaint or order), the issue will be immediately sent to the ARA's for ECEJ and OPRA for decision. If necessary, the ARA's will take the issue to the RA.


Proposals for Formal Enforcement Actions

16. If ECEJ and OPRA agree to proceed with a specified administrative or judicial formal enforcement action, ECEJ will notify the RA of this decision, and ECEJ, OPRA, and ORC will discuss and agree on confidentiality rules for the case. If significant new information comes to light after the Regional decision to proceed with formal enforcement is made, but before the case is sent to the Office of Enforcement and Compliance Assurance (OECA) for concurrence, the CSC, OPRA and ORC will immediately reconvene to determine whether the decision should remain the same or be changed.

17. The case, including a description of how the three criteria of the 1984 Indian policy are met by the circumstances, will be sent to the AA for OECA for concurrence, in consultation with the American Indian Environmental Office (AIEO) and the Office of General Counsel (OGC). Proposed judicial cases will only be referred to the Department of Justice (DOJ) after OECA's concurrence. Referral documents will include positions and rationales held by Regional programs that disagreed with the Regional decision to refer the matter to OECA. Once the case is sent to the AA for OECA for review, it is the official Regional position and shall be supported by the whole Region. The Regional case team will develop a communications strategy for all internal and external parties that will reflect the principle that the Region will speak with one voice on the subject.

18. If significant new information comes to light after the Region has sent the proposed action to OECA, the information will be shared among ECEJ, OPRA, and ORC, and a meeting will be held if requested. The Region will then decide (elevating decisions as necessary to reach agreement) whether the information (a) warrants a change or withdrawal of the Regional request for concurrence, (b) must be forwarded to OECA (and DOJ if the action has been referred), and/or (c) need not be forwarded.

19. Once EPA (the Region and the AA for OECA) decides to proceed with a formal enforcement action, ECEJ will supplement the communication strategy for the action. It will specify appropriate times for and recipients of notification to the tribe (and others if appropriate), including that the ARA's for ECEJ and OPRA (in consultation with DOJ if the decision was to refer the case) will notify the tribal chairperson or president of the pending action and potential penalties.

20. As a general rule, the tribally-owned or managed legal entity, but not the tribal government itself, will be named as the responsible party, and EPA will not pursue the tribal government as a signatory to a settlement agreement, or other legally binding document, nor will EPA include the tribe's financial resources in calculating the proposed penalties or in evaluating an ability to pay. If at any time the Region believes that it is necessary to bring the tribal government in as a signatory to a binding agreement or to consider the tribe's financial resources, the Region will outline and discuss the matter with OECA, AIEO, OGC (and any other relevant EPA program) and DOJ if the case has been referred.

21. Compliance is achieved, thus protecting human health and the environment in and around the facility.

January 10, 2001 //signed//
William P. Yellowtail
Regional Administrator
EPA Region 8


Footnotes

1 This guidance deals solely with violation of EPA's civil regulatory programs. It does not apply to criminal conduct, criminal investigations or enforcement pursuant to criminal provisions of laws or regulations which are enforced by EPA. This guidance also may not apply in emergency situations where there is an immediate threat to human health or the environment. In such cases, the Tribal Assistance Program (TAP) will be notified, EPA will follow this guidance to the extent practicable, and the Region will ensure prompt communications within the Region and consult with the affected Tribal government regarding all actions for which prior communication and consultation was not possible.

2 See, e.g., Executive Order No. 13175 on Consultation and Coordination With Indian Tribal Governments, 65 Federal Register 67249 (November 9, 2000); Executive Memorandum on Government-to-Government Relations with Native American Tribal Governments, April 29, 1994.

3 See, e.g., EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984); Indian Policy Implementation Guidance (1984); Federal, Tribal and State Roles in the Protection and Regulation of Reservation Environments (1991); Tribal Operations Action Memorandum (1994); EPA Region 8 Policy for Environmental Protection in Indian Country (1996). This guidance is intended to be read in a manner consistent with existing policies regarding EPA activities in Indian country.

4 If, in addition to the letter to the Tribal government, a program issues a standard inspection notice to the facility, the program will copy the Tribal government and TAP.

5 Any inspection or visit to Indian Country will follow applicable policy or guidance including the Region 8 Indian Policy and the Tribal Q's and A's document; this includes the offer of entrance and exit interviews.

6 For noncompliance at public water systems, where there is not an immediate or acute threat, further action under this guidance will be initiated as follows:
&nbspa. For violations under the surface water treatment or total coliform rules, actions under step 5 and subsequent steps will be initiated upon the second violation within a rolling twelve month period. Upon the second violation, EPA programs may agree that further noncompliance is not likely to occur, in which case, step 9 and subsequent steps may be initiated upon the third violation within a twelve month period;
b. For all other public water system noncompliance, further action will be initiated upon a failure to comply after a notification letter is sent to the tribal chairman and the system.

7 Regional programs commit to meeting deadlines. Substitutes for primary contacts will be used by ECEJ, OPRA and ORC for all internal Region meetings and for internal concurrences. The substitute may be the applicable ARA without a full elevation.

8 TAP will coordinate with ECEJ and, if applicable, the Water Program on all communications with the tribal government regarding noncompliance and compliance assistance.