INDIAN LANDS OPEN DUMP CLEANUP 

ACT OF 1994 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON 

NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

8.720 

TO CLEAN UP OPEN DUMPS ON INDIAN LANDS, AND FOR OTHER 

PURPOSES 

84-373 

HEARING HELD IN WASHINGTON, DC 

JULY 26, 1994 

Serial No. 103-102 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1994 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congre"ional Sales Office, Washington, DC 20402 

ISBN 0-16-046183-9 
COMMITTEE ON NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana 

EDWARD J. MARKEY, Massachusetts 

AUSTIN J. MURPHY, Pennsylvania 

NICK JOE RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

PAT WILLIAMS, Montana 

RON DE LUGO, Virgin Islands 

SAM GEJDENSON, Connecticut 

RICHARD H. LEHMAN, California 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

LARRY LAROCCO, Idaho 

NEIL ABERCROMBIE, Hawaii 

CALVIN M. DOOLEY, California 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J. BARLOW III, Kentucky 

THOMAS M. BARRETT, Wisconsin 

DON YOUNG, Alaska, 

Ranking Republican Member 

JAMES V. HANSEN, Utah 

BARBARA F. VUCANOVICH, Nevada 

ELTON GALLEGLY, California 

ROBERT F . (BOB) SMITH, Oregon 

CRAIG THOMAS, Wyoming 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

RICHARD H. BAKER, Louisiana 

KEN CALVERT, California 

SCOTT MciNNIS, Colorado 

RICHARD W. POMBO, California 

JAY DICKEY, Arkansas 

JOHN LAWRENCE, Staff Director 

STANLEY ScOVILLE, General Counsel 

DANIEL VAL KISH, Republican Staff Director 

SUBCOMMITIEE ON NATIVE AMERICAN AFFAIRS 

BILL RICHARDSON, New Mexico, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming, 

SAM GEJDENSON, Connecticut Ranking Republican Member 

ENI F.H. FALEOMAVAEGA, American DON YOUNG, Alaska 

Samoa RICHARD H. BAKER, Louisiana 

TIM JOHNSON, South Dakota KEN CALVERT, California 

NEIL ABERCROMBIE, Hawaii 

KARAN ENGLISH, Arizona 

TADD JOHNSON, Staff Director 

MARIE HOWARD, Professional Staff Member 

STEVEN J.W. HEELEY, Counsel 

CHRISTOPHER T. STEARNS, Deputy Counsel 

JULIE REDING, Staff Assistant 

BARBARA ROBLES, Clerk 

RICHARD HOUGHTON, Republican Counsel on Native American Affairs 

(II) 
CONTENTS 

Hearing held: July 26, 1994 ................................................................................... . Text of the bill: S. 720 ........................................................................................... .. Section-by-section analysis: S. 720 ........................................................................ . 

~~~f;~us~~~~~:tion ......................................................................................... . 

Hon. Bill Richardson ....................................................................................... . Hon. Don Young .................................................................................... ........... . Witness statements: 

Gary J. Hartz, Director, Division of Environmental Health, Office of 

Environmental Health and Engineering, Indian Health Service, Department of Health and Human Services, accompanied by Thomas Crow, Chief, Environmental Health Services Branch, and Dr. Richard Barror, Chief, Sanitation Facilities Construction Branch .................................... .. Panel consisting of: Samuel L. Winder, executive director, National Tribal Environmental 

Council, Albuquerque, NM ................................................................... . Hon. Bobby Whitefeather, chairman, Red Lake Band of Chippewa 

Indians, Minnesota ............................................................................... . Sadie Hoskie, director, Navajo Nation Environmental Protection 

Agency, Window Rock, AZ ................................................................... . Tony Smith, Esq., on behalf of the Aleut Natives of the Pribilof 

Islands, AK ............................................................................................ . G. Chad Bowechop, environmental planner and tribal member, on behalf of the Makah Tribal Council, Neah Bay, WA ......................... . 

APPENDIX 

JULY 26, 1994 

Additional material submitted for the hearing record from: 

Page 

1 

2 

12 

14 

1 

16 

17 

36 

44 

56 

63 

71 

City of St. George, AK: Comments on S. 720 ................................................. 83 

Shoshone Indian Tribe, Wind River Indian Reservation, WY: Prepared 

statement of Darwin St. Clair, chairman, Shoshone Business Council, on behalf of the tribe .... .. .... .... .... . .. .. . .. . .... . .. .. .. .. .. .... .... .... .. ..................... ... .. .. 86 

Campo Band of Mission Indians: Letter dated July 28, 1994, from Kevin 

Gover, Esq., Gover, Stetson & Williams, P.C., to Chairman Richardson . 90 

(Ill) 

S. 720, INDIAN LANDS OPEN DUMP CLEANUP 

ACT OF 1994 

TUESDAY, JULY 26, 1994 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

COMMITTEE ON NATURAL RESOURCES, 

Washington, DC. 

The subcommittee met, pursuant to call, at 9:37 a.m., in room 

1324, Longworth House Office Building, Hon. Bill Richardson 

(chairman of the subcommittee) presiding. 

STATEMENT OF HON. BILL RICHARDSON 

Mr. RICHARDSON. The committee will now come to order. Today, 

we will be receiving testimony on S. 720, a bill to clean up open 

dumps on Indian lands. Our subcommittee has held hearings on 

the problem of open dumps and leaking underground storage tanks 

on Indian lands. 

From these hearings we have learned that, first, there are over 

650 open dumps located on Indian lands. Of these facilities, over 

100 were constructed by the Indian Health Service. 

Only one of these landfills meets the new EPA regulations governing solid waste landfills. It has been estimated that it will cost 

over $130 million to effectively close or bring these facilities into 

compliance. 

At our hearings last year, I sat and listened to officials from 

EPA, BIA, and the IHS tell this committee that they had no responsibility to address the problems of open dumps on Indian 

lands. 

We are looking at an environmental crisis in Indian country. As 

the Federal trustee responsible for constructing many of these facilities, we must accept the responsibility for the effective closure 

of open dumps and the continued operation of tribal landfills. We 

must provide financial and technical assistance to tribes to develop 

solid waste management plans for their lands. 

We cannot allow the Federal Government to stand idly by while 

tribes' precious resources are being contaminated. I look forward to 

your testimony on this important legislation. 

I would ask all witnesses to summarize their statements within 

5 minutes. The full statement will be made part of the record 

which will remain open for one week. 

At this time I would ask that the bill, section-by-section analysis, 

and background be made part of the record. 

[Text of the bill, S. 720, section-by-section analysis, and background information follow:] 

(1) 
103D CONGRESS 

2D SESSION 

2 

S.720 

IN THE HOUSE OF REPRESENTATIVES 

MAY 17, 1994 

Referred to the Committee on Natural Resources 

AN ACT 

To clean up open dumps on Indian lands, and for other 

purposes. 

I Be it enacted by th£ Senate and House of Representa2 tives of th£ United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Indian Lands Open 

5 Dump Cleanup Act of 1994". 
3 

2 

1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.-The Congress finds that3 (1) there are at least 600 open dumps on ln4 dian lands; 

5 (2) these dumps threaten the health and safety 

6 · of residents of Indian lands and contiguous areas; 

7 (3) many of these dumps were established or 

8 are used by Federal agencies such as the Bureau of 

9 Indian Mfairs and the Indian Health Service; 

10 ( 4) these dumps threaten the environment; 

11 (5) the United States holds most Indian lands 

12 in trust for the benefit of Indian tribes and individ13 uals; and 

14 (6) most Indian tribal governments lack the fi15 nancial and technical resources necessary to close 

16 and maintain these dumps in compliance with appli17 cable Federal laws. 

18 (b) PURPOSES.-The purposes of this Act are to--

19 ( 1) identify the location of open dumps on In20 dian lands; 

21 (2) assess the relative health and environmental 

22 hazards of such dumps; and 

23 (3) provide financial and technical assistance to 

24 Indian tribal governments, either directly or by con25 tract, to close such dumps in compliance with appli26 cable Federal standards and regulations, or standS 720 RFH 
4 

3 

1 ards promulgated by an Indian tribal government, if 

2 such standards are more stringent than the Federal 

3 standards. 

4 SEC. 3. DEFINITIONS. 

5 For the purposes of this Act, the following definitions 

6 shall apply: 

7 (1) CLOSURE OR CLOSE.-The term "closure or 

8 close" means the termination of operations at open 

9 dumps on Indian land and bringing such dumps into 

10 compliance with applicable Federal standards and 

11 regulations, or standards promulgated by an Indian 

12 tribal government, if such standards are more strin13 gent than the Federal standards and regulations. 

14 (2) DIRECTOR.-The term "Director" means 

15 the Director of the Indian Health Service. 

16 (3) INDIAN LAND.-The term "Indian land" 

17 means18 (A) land within the limits of any Indian 

19 reservati<;>n under the jurisdiction of the United 

20 States Government, notwithstanding the issu21 ance of any patent, and including rights-of-way 

22 running through the reservation; 

23 (B) dependent Indian communities within 

24 the borders of the United States whether within 

25 the original or subsequently acquired territory 

8 720 RFH 
5 

4 

1 thereof, and whether within or without the lim2 its of a State; and 

3 (C) Indian allotments, the Indian titles to 

4 which have not been extinguished, including 

5 rights-of-way running through the same. 

6 (4) INDIAN TRIBAL GOVERN:MENT.-The term 

7 "Indian tribal government" means the governing 

8 body of any Indian tribe, band, nation, pueblo, or 

9 other organized group or community which is recog1 0 nized as eligible for the special programs and serv11 ices provided by the United States to Indians be12 cause of their status as Indians. 

13 (5) INVENTORY.-The term "inventory" means 

14 a listing of the geographic location of all open 

15 dumps, an evaluation of the contents of each dump, 

16 and an assessment of the relative impact of each 

17 dump on the environment and public health. 

18 (6) OPEN DUMP.-The term "open dump" 

19 means any facility or site where solid waste is being 

20 or has been routinely and regularly disposed of that 

21 has not been closed or covered or that does not meet 

22 the criteria for a new municipal solid waste landfill 

23 unit promulgated pursuant to the Solid Waste Dis24 posal Act (42 U.S.C. 6901 et seq.). 

S 720 RFH 
6 

5 

(7) POSTCLOSURE MAINTENANCE.-The term 

2 "postclosure maintenance" means any activity un3 dertaken at a closed solid waste facility on Indian 

4 land to maintain the integrity of containment fea5 tures, monitor compliance with applicable perform6 ance standards, or remedy any situation or occur7 renee that violates regulations promulgated pursuant 

8 to the Solid Waste Disposal Act (42 U.S.C. 6901 et 

9 seq.). 

10 (8) SOLID WASTE.-The term "solid waste" 

11 means any garbage, refuse, sludge from a 

12 wastewater treatment plant, water supply treatment 

13 plant, or air pollution control facility, and other dis14 carded material, including solid, liquid, semisolid, or 

15 contained gaseous material resulting from industrial, 

16 commercial, mining, and agricultural operations, and 

17 from community activities, but does not include solid 

18 or dissolved materials in domestic sewage, or solid or 

19 dissolved materials in irrigation return flows or in20 dustrial discharges that are point sources subject to 

21 permit under section 402 of the Federal Water Pol22 lution Control Act (33 U.S.C. 1342), or source ma23 terial, special nuclear material, or by-product mate24 rial as defined in section 11 of the Atomic Energy 

25 Act of 1954 (42 U.S.C. 2014). 

S 720 RFH 
7 

6 

1 SEC. 4. AUTHORITY OF THE DIRECTOR OF THE INDIAN 

2 HEALTH SERVICE. 

3 (a) INVENTORY.-Upon request by an Indian tribal 

4 government, the Director shall5 ( 1) conduct an inventory of open dumps on the 

6 Indian lands which are subject to the authority of 

7 the Indian tribal government; 

8 (2) determine the relative severity of the threat 

9 to public health and the environment posed by each 

10 dump based on information available to the Director 

11 and the Indian tribal government, unless the Direc12 tor, in consultation with the Indian tribal govern13 ment, determines that actions such as soil testing or 

14 water monitoring would be appropriate in the cir15 cumstances; and 

16 (3) develop cost estimates for the closure and 

17 postclosure maintenance of such dumps. 

18 (b) AssiSTANCE.-Upon completion of the activities 

19 required to be performed pursuant to subsection (a), the 

20 Director shall, subject to subsection (c), provide financial 

21 and technical assistance to the Indian tribal government 

22 to carry out the activities necessary to23 ( 1) close such dumps; and 

24 (2) provide for postclosure maintenance of such 

25 dumps. 

S 720 RFH 
8 

7 

1 (c) CONDITIONS.-All assistance provided pursuant 

2 to subsection (b) shall be made available on a site-specific 

3 basis in accordance with priorities developed by the Direc4 tor. Priorities on a specific reservation shall be developed 

5 in consultation with the Indian tribal government. The 

6 priorities shall take into account the relative severity of 

7 the threat to public health and the environment posed by 

8 each open dump and the availability of funds necessary 

9 for closure and postclosure maintenance. 

10 SEC. 5. CONTRACT AUTHORITY. 

11 (a) AUTHORITY OF DIRECTOR-To the maximum 

12 extent feasible, the Director shall carry out duties under 

13 this Act through contracts, compacts, or memoranda of 

14 agreement with Indian tribal governments pursuant to the 

15 Indian Self-Determination and Education Assistance Act 

16 (25 U.S.C. 450 et seq.), section 7 of the Act of August 

17 5, 1954 (42 U.S.C. 2004a), or section 302 of the Indian 

18 Health Care Improvement Act (25 U.S.C. 1632). 

19 (b) DEMONSTRATION PROJECTS.-(1) The Director 

20 may establish and carry out a program providing for dem21 onstration projects involving open dumps on Indian land. 

22 It shall be the purpose of such projects to determine if 

23 there are unique cost factors involved in the cleanup and 

24 maintenance of open dumps on such land, and the extent 

25 to which advance closure planning is necessary. Under the 

S 720 RFH 
9 

8 

1 program, the Director is authorized to select three Indian 

2 tribal governments to participate in such demonstration 

3 projects. 

4 (2) Criteria established by the Director for the selec5 tion and participation of an Indian tribal government in 

6 the demonstration project shall provide that7 (A) in order to be eligible to participate, an ln8 dian tribal government must have one or more exist9 ing open dumps on the Indian lands that are under 

10 its authority, and have a plan for the closure of each 

11 such dump; 

12 (B) at least one of the Indian tribal govern13 ments selected by the Director shall proceed under 

14 a contract entered into pursuant to the Indian Self15 Determination and Education Assistance Act; and 

16 (C) at least one of the Indian tribal govern17 ments selected by the Director shall permit the ln18 dian Health Service to directly provide for the clean19 up and maintenance. 

20 (3) No demonstration project shall be funded for 

21 more than 3 fiscal years. 

22 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

23 (a) GENERAL AUTHORIZATION.-There are author24 ized to be appropriated such sums as may be necessary 

25 to carry out this Act. 

S 720 RFH 
10 

9 

1 (b) FUNDING SOURCE.-The activities required to be 

2 performed by the Director under this Act shall only be 

3 funded from appropriations made pursuant to this Act 

4 and such activities shall be coordinated with activities re5 lated to solid waste and sanitation facilities funded pursu6 ant to other authorizations. 

7 SEC. 7. DISCLAIMERS. 

8 (a) AUTHORITY OF DIRECTOR.-Nothing in this Act 

9 shall be construed to alter, diminish, repeal, or supersede 

10 any authority conferred on the Director pursuant to sec11 tion 302 of the Indian Health Care Improvement Act (25 

12 U.S.C. 1632), and section 7 of the Act of August 5, 1954 

13 (42 U.S.C. 2004a). 

14 (b) EXEMPTED LANDS AND FACILITIES.-This Act 

15 shall not apply to open dump sites on Indian lands16 (1) that comprise an area of one-half acre or 

17 less, and that are used by individual families on 

18 lands to which they hold legal or beneficial title; 

19 (2) of any size, that have been or are being op20 erated for a profit; or 

21 (3) where solid waste from an industrial process 

22 is being or has been routinely disposed of at a priS 720 RFH 
11 

10 

1 vately owned facility in compliance with applicable 

2 Federal laws. 

Passed the Senate May 12 (legislative day, May 2), 

1994. 

Attest: 

S 720 RFH 

MARTHA S. POPE, 

Secretary. 
12 

SECI10N-BY-SECI10N ANALYSIS OF S. 720, 

tbe Indian Lands Open Dumps Cleanup Act or 1994. 

SECfiON 1. SHORT TITLE 

Section 1 cites the short title of the Act as the "lndian Lands Open Dump Oeanup 

Act of 1994". 

SECfiON 2. FINDINGS AND PURPOSE 

Section 2 sets out the findings of the Congress and the purposes of the legislation. 

SECfiON 3. DEFINITIONS 

Section 3 sets out the definitions used in the Act. 

SECfiON 4. AUTHORITY OF THE DIRECTOR OF TilE INDIAN HEAL Til SERVICE 

Section 4 provides that upon the request of an Indian tribe, the Director of the IHS 

shaD conduct an inventol}' of open dumps on tribal lands,. determine the relative threat to 

public health and the environment, and develop cost estimates for the closure and 

postclosure maintenance of such dumps. 

Subsection (b) requires the Director to provide technical and financial assistance to 

the tribe upon completion of the activities set out in subsection (a). 

Subsection (c) provides that all assistance provided under subsection (b) shall be 

provided on a site specific basis consistent with the priorities established under the Act. 

SECfiON 5. CONTRACT AUTHORITY 

Subsection (a) provides that to the maximum extent feasible the Director shall carl}' 

out his duties through agreements, contracts, or compacts with lndian tribes pursuant to the 

lndian Self-Determination Act and the lndian Health Care Improvement Act. 

Subsection (b) establishes a demonstration project to determine the unique cost 

factors involved in the cleanup and maintenance of open dumps on Indian lands. The 

Director shaD select up to 3 lndian tribes to participate in the demonstration project for up 

to 3 years. An lndian tnbe must have one or more existing open dumps on their lands and 

have a plan for closure for each dump in order to be eligible for participation in the project. 

It also provides that at least one Indian shall contract to carl}' out the project under the 

lndian Self-Determination Act and at least one tribe shaD have the lndian Health Service 

undertake the cleanup and maintenance activities under the project. 
13 

SECI10N 6. AUTHORIZATION OF APPROPRIATIONS 

Section 6 authorizes to be appropriated such sums as may be necessary to carry out 

the Act. Subsection (b) provides that activities required under this Act may only be funded 

from appropriations under this Act and these activities shall be coordinated with the Indian 

Health Service responsibilities for solid waste and sanitation facilities. 

SECI10N 7. DISCLAIMERS 

Section 7 provides that nothing in this Act shall be construed to alter, diminish, or 

supersede any authority conferred upon the Director under the Indian Health Care 

Improvement Act. Subsection (b) provides that this Act shall not apply to commercially 

operated dumps, individual family dumps. and dumps where solid waste from an industrial 

process has been disposed of at a privately owned facility in compliance with Federal laws. 

2 
14 

BACKGROUND ON S. 710, 

tile IDdiaa Laads Opea Dumps Cleaaup Act of 1994 

Many solid waste facilities on Indian lands present serious environmental problems 

for Indian tribes. The problems associated with solid waste disposal on Indian lands are 

among the most serious threats to public health and the environment. Over the years, 

Indian tribes have looked to the Federal government for both technical and financial 

assistance to address the problems of open dumps and solid waste management on their 

lands. Despite the need for Federal assistance to respond to solid waste management 

problems, the Federal government has provided little assistance to tnbal governments. The 

Federal agencies which have the most significant role in tnbal environmental issues are the 

Environmental Protection Agency, the Bureau of Indian Affairs, and the Indian Health 

Service. Each of these agencies has a role in carrying out the trust responsibilities to Indian 

tribes. The Bureau of Indian Affairs is the principle agency involved in the management of 

Indian lands. The Indian Health Services is responsible for the construction of wastewater 

treatment facilities and sanitary landfills on Indian lands. The Indian Health Service also 

is authorized to provide technical and financial assistance to Indian tnbes for the continuing 

operation of wastewater treatment facilities. The EPA has the responsibility to regulate 

environmental quality on Indian lands and to provide financial and technical assistance to 

Indian tribes pursuant appropriate environmental statutes. All of these responsibilities are 

based on the underlying trust responsibility of the Federal government to Indian tribes as 

recognized in treaties and in statute. 

Blue I..qs Dec:isjon 

The question of which Federal agency is responsible, and liable, for the clean up of 

open dump sites on the Pine Ridge Indian Reservation in South Dakota was raised in the 

case, Blue Legs v. Bureau of Indian Affairs, et aL, 861 F.2d. 1094 (8th Cir. 1989). This 

case was a private citizen suit to enforce the Solid Waste Disposal Act against the Indian 

tribe, the EPA, the BlA and the IHS. In deciding this case, the 8th Circuit Court of Appeals 

held that since Indian tribes are treated as municipalities under RCRA, Congress specifically 

intended to waive the Indian tribe's sovereign immunity with respect to the violations of the 

Act. The Court held the Indian tnbe, the Bureau of Indian Affairs and the Indian Health 

Service all partially liable ·for cleaning up the dump sites on the Pine Ridge Indian 

Reservation. The Court based its decision to impose liability on the BlA and the IHS on 

the Federal trust responsibility to Indian tnbes. The Court based its determination in part 

on the authority vested in the BlA and the IHS through the Snyder Act 25 U.S.C. Section 

13. In addition, the Court cited the fact that both the Bureau of Indian Affairs and the 

Indian Health Service had contracted with the Indian tribe to haul their waste to the tribal 

landfills. 

Since the decision in Blue Legs, the Federal government has done very little to 

address environmental problems related to open dumps. Currently, neither the BlA nor the 

IHS view their responsibilities as requiring them to provide financial assistance to Indian 
15 

tribes to clean up open dumps or facilities which are out of compliance. The EPA has 

stated that they are unable to provide assistance to Indian tribes under the provisions of 

RCRA without statutory amendments. Indian tribes are faced with finding alternative 

resources to address these serious environmental problems. 

There are over 650 open dumps located on Indian reservations. Of these sites, 108 

are landfills constructed by the Indian Health Service and subsequently transferred to tribal 

governments. At the time these facilities were constructed, they met the existing Federal 

standards. It has been estimated that it wiU cost over $130 million to bring these solid waste 

facilities into compliance with existing Federal standards. It has been estimated by the 

Indian Health Service that only one JandfiU located on Indian lands will be in compliance 

with the newly promulgated regulations for the operation, closure, and post closure 

maintenance of solid waste landfiUs. ( 40 CFR part 258). These regulations were originally 

scheduled to go into effect on October 9, 1993. EPA promulgated a revised rule which 

provided that a landfill that receives Jess than 100 tons of solid waste per day would become 

subject to the new regulations by April 9, 1994 and a landfill that receives Jess than 20 tons 

of solid waste per day and which receives Jess than 25 inches of rain per year would become 

subject to the new regulations on October 9, 1995. Any landfill that received waste after 

October 9, 1993 must meet the final cover requirements under the new regulations. In 

general, the requirements for final cover are at least eighteen inches of soil and six inches 

of earthen material capable of supporting plant life. EPA has estimated that it will cost 

approximately $50,000 per acre to meet the final cover requirements under the new 

regulations. The new regulations also require active solid waste landfills to meet 

groundwater monitoring requirements, specifications for liners, and corrective action 

requirements. Operators of landfills are required to post financial assurances sufficient to 

meet closure and post closure maintenance costs. 

The Indian Ooen Dumps Cleanup Act 

On April 1, 1993, Senators McCain, Inouye and Reid introduced S. 720, the Indian 

Open Dumps Oeanup Act of 1994. The legislation passed the Senate on May 17, 1994 and 

was referred to the Subcommittee on Native American Affairs of the Committee on Natural 

Resources. The biD would require the Director of the Indian Health Service to conduct an 

inventory of open dumps located on tribal lands upon request of an Indian tribe. The 

Director would be required to determine the relative threat to public health and the 

environment posed by each dump and to develop cost estimates for closure and post closure 

maintenance of such dumps. Under the bill, the Director shall provide technical and 

financial assistance to an Indian tnbe for the closure and post closure maintenance of an 

open dump. 1J1 determining the relative priority of each dump the Director shall consider 

the relative threat to public health and the environment posed by each dump. The 

legislation also establishes a three year demonstration project to determine the unique 

factors in the clean up of open dumps on Indian lands and the need for advance planning 

for closure activities. 

2 
16 

Mr. RICHARDSON. The Chair recognizes the distinguished ranking 

member of the committee who has been enormously active on these 

issues and many other Native American and Alaska native issues, 

the gentleman from Alaska. 

STATEMENT OF HON. DON YOUNG 

Mr. YOUNG. Thank you, Mr. Chairman. And you are forgiven for 

being late. It is always the staffs fault, we know that. 

Mr. Chairman, I am pleased the subcommittee is considering this 

issue of open dumps on Indian lands. S. 720 would direct the Indian Health Service to respond to requests by Indian groups to conduct an inventory of open dumps on Indian lands, assess health 

risks to native people and the environment. 

It would also provide financial and technical assistance to close 

and provide post-closure maintenance for open dumps in compliance with Federal standards and more stringent tribal standards. I understand during the markup of this bill the Senate Committee on Indian Affairs unanimously adopted an amendment proposed by my colleague from Alaska which deletes from the bill all 

reference to Alaska Native villages and lands. 

I understand that in its stead, S. 1686 was offered and is intended to address the issue of contaminated lands conveyed to 

Alaska Native corporations formed under the Alaska Native Claims 

Settlement Act [ANCSA] in 1971. 

Mr. Chairman, I would reference section 5 of H.R. 3612, a bill 

which I introduced on November 21st, 1993, which would relieve 

ANCSA corporations of liability for hazardous waste or contaminants left in or on ANCSA lands prior to conveyance to Native corporations. 

This section of my bill directs the Secretary of Interior to remove 

all contaminants left by the United States or by agents of the United States or lessees prior to conveyance of these lands to the native 

corporations. This section of my bill would allow for cleanup of hazardous materials left on ANCSA lands prior to conveyance and 

does not directly address the open dump sites on native lands. However, open dump sites can be incorporated in this bill, and 

I am sure you are going to submit a substitute for the bill which 

we are discussing today. I would suggest, Mr. Chairman, this 

would be appropriate. 

I would like to welcome Mr. Smith. He is here representing the 

City of St. Paul. Also, I would like to continue to have him on the 

witness stand and not sitting where I am today. 

He is now, Mr. Chairman, my official opponent in this upcoming 

election. But we have been friends and I hope this turns out to be 

the same way at the end of this election. 

I understand that testimony has also been submitted on behalf 

of the City of St. George. I have always held a special place in my 

heart for the people of the Pribilof Islands because of their treatment at the hands of their own government. 

In fact, it was my legislation, in 1983, which set up the Fur Seal 

Act amendments and the Trust Fund for the people of the Pribilof 

islands. Since then, I have worked closely with the people of the 

Pribilofs on matters related to economic development, including 

funding for the airports, harbors and other economic and social pro-
17 

grams, as well as attempting to work on fishing allocations. Theirs 

is a special case because of the fact that the government ran the 

island, including their economy, until turning the lands over to the 

people of the Pribilofs, and it appears that they continue to get a 

raw deal from the government. 

I just don't think it is fair that the government who gives the 

lands and real estate to Alaska Natives to extinguish their land 

claims, and when it turns out they are loaded with toxic or radioactive wastes or other wastes the government says, "Sorry, they 

are yours now." This is not in good faith. The good people of St. 

George and St. Paul deserve better treatment from their government, as do the Alaska Natives throughout the State. That is why 

I would like to work closely with you, Mr. Chairman, to fashion a 

resolution to dumps and wastes on Lower 48 and Alaska Native 

lands, and I look forward to doing so. 

Mr. Chairman, just on the local level, we also have Federal 

standards on open dumps that require these small villages with no 

economic base at all to meet certain standards. The money is not 

there, however, the desire is there. But, it is the inability of them 

to meet these Federal standards that threaten many of our local 

villages, from having to compete with the Federal standards on 

open dumps. 

Thank you, Mr. Chairman for this opportunity to testify. 

Mr. RICHARDSON. I thank the gentleman. 

Again, we will ask the witnesses to summarize their statements 

in 5 minutes. 

We will first proceed with Mr. Gary Hartz, Director, Division of 

Environmental Health, IHS, Department of Health and Human 

Services. 

Mr. Hartz is accompanied by Mr. Thomas Crow, Chief of the 

Branch of Environmental Health Services of the IHS, and Dr. Richard Barror, Chief of the Branch of Sanitation Facilities Construction. 

Mr. Hartz, please proceed. 

STATEMENT OF GARY J. HARTZ, DIRECTOR, DIVISION OF ENVIRONMENTAL HEALTH, OFFICE OF ENVIRONMENTAL 

HEALTH AND ENGINEERING, INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES, ACCOMPANIED BY THOMAS CROW, CIDEF, ENVIRONMENTAL 

HEALTH SERVICES BRANCH, INDIAN HEALTH SERVICE, AND 

DR. RICHARD BARROR, CHIEF, SANITATION FACILITIES 

CONSTRUCTION BRANCH 

Mr. HARTZ. Thank you, Chairman Richardson, and Mr. Young. 

The Indian Health Service has long been involved, through the 

Sanitation Facilities Act of 1959, in addressing the needs of water, 

sewer and solid waste, as well as the establishing and equipping 

of operation and maintenance organizations. 

The priorities that are given to those respective aspects of improvement to the environment have more specifically been laid 

down in the Health Care Amendments of 1988, which outlined various levels of deficiency that we are to rank the projects as funds 

are appropriated for the Public Law 86-121 activities. 
18 

In that regard, the solid waste issue is identified as Deficiency 

Level 3 under current authorities, and as a consequence, because 

of that plus the relative public health impact that it carries in comparison to lack of water and sewer facilities is still very prevalent 

throughout all of Indian country, that these projects have not received the same level of attention that water and sewer projects 

have. 

The Congress has been very generous in the appropriations since 

the implementation of 121 and then subsequently to the Indian 

Health Care Amendment and its amendments. Through 1994 the 

appropriations have been in excess of $1.1 billion. The last few years the appropriations for sanitation facilities 

have also increased as well as the amount going for solid waste, because of the laws that have been passed and the increasing priority 

that the tribes and the Federal Government are putting on it. It 

received additional funding, up to now about $7 million over those 

2 years, 1993 and 1994. 

The total appropriation that we received last year was right at 

$85 million. Approximately 4 million of that will go towards solid 

waste. 

The other needs, as I mentioned are quite grave. The universe 

is about $1.7 billion, and of that total approximately $141 million 

of it is for solid waste purposes. 

We have testified before the Senate regarding this particular legislation and, as they indicate in their report, there have been some 

modifications based on our informal technical assistance. 

And I think it is of note that the way that the bill is currently 

crafted that the authorities for this bill would require that there 

be separate funding because of the recognition of the tremendous 

needs that currently exist in Indian country for sanitation facilities 

under the authorities of our current laws. Couple of points that we would like to make regarding the bill 

that is before you, and that you are considering, is that the solid 

waste management plan should be looked at for any entity that is 

being considered for closure of these dump sites. We are very concerned that by just looking at closure and the resulting post-closure 

maintenance is not necessarily looking at the whole picture. 

So your comments, Mr. Chairman, as you led off, we concur with 

wholeheartedly about the need to look at solid waste management 

plans as the initial step in leading into the actual closure. 

And as far as post-closure maintenance is concerned, we believe 

that one can with reasonable accuracy estimate the cost of actual 

closure. That is something that we believe is finite. That is something that once the closure is done it is completed. 

The costs associated with the post-closure maintenance is of a 

concern to us because the Federal Government would be continuing 

its ongoing responsibility ad infinitum to pay for the cost of the 

post-closure maintenance. · And furthermore, we are uncertain-because of inadequate experience at this point in monitoring and taking care of that maintenance, we are really not sure what the 

amount is going to be. 

As you have indicated, we would like to have the full text of our 

testimony submitted for the record. 

Thank you. 
19 

Mr. RICHARDSON. I thank my friend. 

[Prepared statement of Mr. Hartz follows:] 
20 

DEPARTMENT OF HEALTH AND HUMAN SERVICES 

STATEMENT OF 

MR. GARY J . HARTZ, DIRECTOR 

DIVISION OF ENVIRONMENTAL HEALTH 

OFFICE OF ENVIRONMENTAL HEALTH AND ENGINEERING 

INDIAN HEALTH SERVICE 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

HEARING ON THE INDIAN LANDS OPEN DUMP CLEAN- UP ACT OF 1994 

JULY 26, 1994 
21 

TESTIMONY OF DIRECTOR , DIVISION OF ENVIRONMENTAL HEALTH 

OFFICE OF ENVIRONMENTAL HEALTH AND ENGINEERING 

INDIAN HEALTH SERVICE 

Mr. Chairman and Members of the Committee: 

I am Gary Hartz, Director, Division of Environmental Health 

accompanied by Mr. Thomas Crow, Chief of the Environmental Health 

Services Branch and Dr . Richard Barror, Chief of the Sanitation 

Facilities Construction Branch . We are pleased to be here today 

to discuss with you S . 720, Indian Lands Open Dump Clean-up Act of 

1994. 

The goal of the IHS is to raise the health status of more than 

1.3 million American Indian and Alaska Native (AI/AN) people to 

the highest possible level. In order to achieve this, the IHS 

has a threefold mission: l) to provide or assure the availability 

o r high quality, comprehensive, and accessible health services; 

2 ) to provide inc reasing opportunities for India ns to administer 

the ir own programs ; and 3) to s erve as a health a dvocate for 

Indian people . As part of this mission, the IHS is committed to 

promoting a healthy environment including the construction of 

e s sential sanitation faciliti e s, as well as advocating for proper 

public health prac t i ces and assisting in the resolution of 

e nv iro nmentally-re l a t e d health concerns. In FY 1993 the IHS 

assis ted in the provision of e s sential sanitation f a cilities to 

over 8,200 India n homes and pro vided over 16 9 , 00 0 envi ronmental 

he alth services to India n homes and communities . 

l 
22 

The availability of sanitation facilities and improved housing is 

widely credited with significantly contributing to the remarkable 

improvements in the health status of the American Indians and 

Alaska Natives since 1955 when environmentally related disease 

death rates ranged from about 3 to 7 times the u.s. All Races 

rates. Since the passage of the Indian Sanitation Facilities 

Act, Public Law 86-121, in 1959, more than 196,000 new, 

renovated, and existing AI/AN housing units have received 

sanitation facilities for the first time. These services have 

included the construction of systems to provide safe individual 

and community drinking water, as well as sewage and solid waste 

collection and disposal facilities. During this period, Congress 

has appropriated more than $1.1 billion to the IHS for this 

purpose. These environmental services along with the improved 

availability of health care services have yielded the following 

health improvements since 1972-74: 

1) The infant mortality rate for American Indian and Alaska 

Natives decreased 50 percent. 

2) The age-adjusted tuberculosis death rate for American Indian 

and Alaska Natives dropped 76 percent. 

3) The age-adjusted injury death rate dropped from 216.0 to 

93.1 in 1987-89, a decrease of 57 percent. 
23 

4) The age-adjusted gastrointestinal death rate decreased 80 

percent. 

A small percentage of the $1.1 billion has been spent by the IHS 

on the development of solid waste collection and disposal 

facilities because of higher public health priority on water 

supply and sewage disposal problems throughout Indian country. 

This priority, consistent with tribal desires and legislative 

mandates, has been reflected in expenditures over the years which 

have been directed primarily to water and sewer projects. 

Public Law 86- 121 

The provision of sanitation facilities to safe, adequate housing 

has enhanced and extended the lives of tens of thousands of 

American Indians and Alaska Natives. The primary authority for 

the IHS to provide necessary sanitation facilities and services 

is section 7 of the Transfer Act (as amended by the Indian 

Sanitation Facilities Act), ·which authorizes the IHS "to 

construct, improve, extend, or otherwise provide and maintain, by 

contract or otherwise, essential sanitation facilities, including 

domestic and community water supplies and facilities, drainage 

facilities, and sewage and waste disposal facilities, together 

with necessary appurtenances and fixtures, for Indian homes, 

communi ties and· lands;. n 
24 

Indian Health Care Amendments of 1988 

The Indian Health care Amendments of 1988, P.L. 100-713, 

reaffirmed the primary authority and responsibility of the IHS to 

provide the necessary sanitation facilities and services as 

provided in section 7 of the Indian Sanitation Facilities Act. 

In section 302(g) (4) of the Indian Health care Improvement Act, 

Congress identifies five sanitation deficiency levels (Level I -

Level V) for Indian homes and communities with Level V being the 

most serious deficiency level. Level V is defined as an Indian 

tribe or community that lacks a safe water supply and a sewage 

disposal system; Level IV is defined as an Indian tribe or 

community that lacks either a safe water supply system or a 

sewage disposal system. The lack of a solid waste disposal 

facility is identified as a Level III deficiency. Systems with 

Level II and Level I deficiencies comply with all laws, but need 

capital improvements or have deficiencies related to routine 

repair and replacement. 

Section 302(c) of the Act required the IHS to develop and begin 

implementing a 10-year plan to remedy these sanitation 

deficiencies in Indian country. The 10-year plan was included in 

the second Annual Report to Congress on Sanitation Facilities 

Deficiencies for Indian Homes and Communities dated March, 1990, 

and revised in the fourth annual report dated February 1992. 
25 

Priority for funding in the 10-year plan is determined in large 

part by the health effect and the potential for reducing health 

care costs by preventive health measures as stated in subsection 

302(a) (3) of the Act. Funding required to correct solid waste 

deficiencies are included in the 10-year plan, however,. based on 

health considerations, projects to provide water supply and 

sewage disposal facilities generally have higher priority for IHS 

Indian sanitation facilities construction funds than solid waste 

disposal facilities. 

Current Funding for Solid Waste Facilities 

During the past two fiscal years approximately $170 million 

(FY 1993 - $85 million and FY 1994 - $85 million) have been 

appropriated for the construction of sanitation facilities. We 

currently estimate that approximately $5 million of the 

$170 million will be utilized for solid waste management 

facilities. 

Estimated Costs for Solid Waste Facilities 

The IHS is also required to provide an annual report to Congress 

which includes a list of proposed sanitation fa c ilities 

construction projects, and an estimate of the cost to correct 

solid waste deficiencies eligible for funding under the 

sanitation facilities construction program. 

5 
26 

Our most recent estimate for these solid waste deficiencies is 

approximately $141 million . Approximately $59 mi"llion of the 

$141 million is to address solid waste deficiencies in the State 

of Alaska. The estimate includes solid waste collection and 

disposal facilities and closure of tribally owned existing sites. 

current cost estimates for correcting solid waste deficiencies 

have been included in approximately 500 proposed construction 

projects to serve approximately 125,000 Indian and Alaska Native 

homes located on over 100 reservations plus 175 communities in 

Oklahoma and Alaska . 

The actual cost to correct the deficiencies may differ 

substantially from our current estimate because: (1) e xperience 

with estimating costs for complying with new EPA solid waste 

regulations is limited, (2) most estimates are not ba~d on 

detailed engineering studies, and (3) the costs for the various 

options to correct solid waste disposal deficiencies may vary 

substantially. 

Project Priority 

Each Area prioritizes all their proposed sanita tion facilities 

construction projects by ass igning points for e ach of eight 

criteria. The priority lists a re used to determine relative 

priority of projects in the Area and are adjusted annually to 

6 
reflect current conditions and tribal desires. Project priority 

is determined, in large part, by health impatt and the potential 

for reducing health care costs by preventing disease. 

Some proposed projects provide more than one type of f~cility 

such as water, sewerage and solid waste facilities and therefore 

a separate priority list to address only solid waste deficiencies 

could not be easily developed from the current data base (Areas 

would be required to identify all projects to correct solid waste 

deficiencies as separate projects). 

A separate list with its own criteria and scoring procedure may 

be appropriate to more specifically address health and 

environmental impacts of solid waste deficiencies. 

Technical Assistance 

Pursuant to the Transfer Act of 1954, which transferred the 

responsibility for Indian health care from the Department of 

Interior to the Department of Health and Human Services, the IHS 

is also authorized to provide technical assistance and 

consultative environmental health services to Indian tribes. The 

IHS maintains a comprehensive environmental health program for 

American Indians and Alaska Natives utilizing this authority. 

The IHS may carry out the program directly with Area and field 

office environmental health professionals or a tribe may take 

7 
28 

responsibility for program implementation under the Indian 

Education and Self-Determination Act. 

Technical assistance relative to solid waste management may 

include: (1) surveys of solid waste disposa~ sites, (~) 

assistance with development of tribal codes and ordinances, (3) 

assistance with development andfor review of management plans, 

(4) assistance with community education campaigns, (5) training 

of solid waste program managers and other workers, (6) assistance 

with identify ing funding sources and (7) assistance with 

evaluating and identifying solutions for operational problems . 

Assistance is obtained through the IHS Area or field offices. 

The availability of this assistance is based on current workload 

and priorities established tor the total environmental health 

program. The IHS environmental health staff includes 

approximately 475 engineers, sanitarians, environmental health 

technicians, engineering aids, injury prevention specialists etc . 

However, the Federal Workforce Restructure Act makes the addition 

of Federal staff for these programs unlikely. 

Solid Waste Disposal Sites 

As part of its program of technical assistance IHS maintains a 

list of solid waste disposal sites located on Indian land which 

may warrant periodic inspection by IHS environmental health staff 

in order to adequately advise tribal officials of potential 

8 
29 

health effects. The list includes a tot3l of approximately 600 

sites, of which approximately 175 are in Alaska and approximately 

100 are on the Navajo Reservation. This listing is not a 

complete inventory of solid waste disposal sites but includes 

those active reservation sites associated with domestiq solid 

waste systems and may include additional locations identified by 

IHS where there is potential for adverse health effects 

associated with solid waste disposal. Proposed projects to 

correct sanitation deficiencies of tribally owned domestic solid 

waste disposal sites on this list and tribally owned previously 

used domestic solid waste disposal site are included in the 

Indian Health Service list of needed sanitation facilities 

construction projects. The current IHS information regarding 

solid waste sites will need to be reviewed to ensure its 

compliance with section 7(b) of S. 720. 

Comments and Concerns 

We have the following comments and concerns on S.720 as referred 

to the Committee on National Resources. 

1. We believe that closure of open dumps must be undertaken as 

part of a total solid waste management plan for the 

reservation. The first step in site closure requires 

development and implementation of an acceptable solid waste 

management system to prevent unauthorized dumping after 

9 

84-373 0 - 94 - 2 
30 

closure of the site. The legislation appears to address 

Indian Health Service responsibilities for site closure and 

maintenance as an issue separate from solid waste management 

planning. A demonstration project should not be approved 

until a plan and funding for implementation is in place. 

2. Cost estimates for closure of these sites can be 

accomplished with reasonable accuracy based upon application 

of Resource Conservation and Recovery Act (RCRA) criteria 

and EPA regulations. Accurately estimating future costs 

for postclosure maintenance is much more difficult. Closure 

can be accomplished with finite expenditure of funds; 

however, the need to expend funds for maintenance will 

continue indefinitely. Because the universe of sanitation 

deficiencies to be addressed with capital improvement funds 

is so significant, we believe that long-term postclosure 

maintenance funding commitments by the Federal Government 

should be considered carefully and, if authorized, any 

Federal share established should be limited and not to 

exceed 2 years. 

This concludes my opening sta tement . I will be happy to respond 

to any questions. 

10 
31 

Mr. RICHARDSON. The Chair recognizes the gentleman from Alaska; 

Mr. YOUNG. Mr. Hartz, I have got interest in the lands that were 

conveyed to Alaska Natives under ANCSA. Many of the lands they 

conveyed had high hazardous content, and that is something we 

can address, maybe, under the Superfund and other things, if we 

do so, provided we give them the authority. 

But the biggest problem I see now is the open dump sites. And 

I noticed in your testimony, you say approximately $59 million 

would be needed to clear the solid waste deficiency in the State of 

Alaska. How do you envision this working? 

I can use my hometown, Port Yukon for example. We have an 

open pit site, have had if actually we have two of them, by the way. That are very well run. Very efficient. 

But, if we close the site now, it is my understanding that they 

are going to ship the garbage to a central point in Nenana to be 

disposed of. 

But what happens in the interim period of time-this is not nice 

to say-to the dead dogs and the pampers and whatever else goes 

into a dump? What happens over that period of time? We have two 

ships a year that take wastes out of Ft. Yukon. How is that going to be done? And who is going to pay the bill? 

We don't have an economic base in Ft. Yukon to pay for this. 

I mean have you got a plan or an idea? 

Mr. HARTZ. Currently, Congressman Young, we are looking at 

the package that has come to us from the Senate, and we are continuing to review that to look at alternatives. 

The problems that are presented by the State of Alaska and the 

requirements that are being imposed by RCRA and the subsequent 

regulations are very, very onerous on the small rural communities, 

whether you are speaking to the small communities on the Navajo 

Reservation or those in Alaska or whether they are in North Dakota. It is very difficult for communities to deal with these problems, Indian or non-Indian, Alaska Native or non-Native. 

You know, we are having to look at a lot of alternatives, and we 

are going to be tapping into the expertise of EPA who was involved 

in promulgating these regulations. 

Mr. YOUNG. But are you going to be an advocate, though? See, 

what I am worried about, in this Congress-the chairman will 

agree with me-we do these great and grandiose things, but the 

EPA keeps telling my Ft. Yukson City Council they are going to 

go to jail if they don't close the pit. 

Someone has to come up with not only the money, Mr. Chairman, there has to be someone there to be the advocate for those 

people, to say this is how this program will work, or they are not 

going to do it. I mean there is no way. 

I am reading this testimony on the Red Lake, and it says right 

here they are only 80 miles away from a State-approved landfill 

and the estimated cost is $300,000 in transportation. And I agree 

with them. It probably costs that or more. And we have the same 

problem in Alaska. And there is no economic base at all on the Red 

Lake nor in our area to take and pick up that expense. Yet, we are 

being told by the Federal Government we have got to meet these 

Federal standards. 
32 

I agree with you. I think there is a higher priority, by the way. 

I think there is a higher priority in water, in sewerage, in health 

care than there is in these dumps. 

There may be another way of doing this. You know, we have had 

landfill dumps in every State I know of, or in cities huge dumps, 

all these years, and they have been run very appropriately. And I 

think the ideal, plan we can do, Is instead of removing it or closing 

it, would be a better management system, with a little assistance 

to these smaller villages so they can handle this problem, or Congress will have to come up with the money. 

But we need somebody to monitor this process. It is not going to 

be the BIA, by the way. I mean they will shove it off to you and 

then you may shove it off to EPA and the EPA will shove it off to 

the Corps of Engineers and they will shove it off to the State. 

In the mean time, I have got these small villages sitting there 

and they don't know where to go. And, by the way, they will be 

threatened, because they haven't met the Federal regulations. 

Mr. HARTZ. Well, we are pleased with the confidence that the 

Senate appears to have shown, and that you folks have shown in 

giving us this responsibility. I am not so immodest to assume that 

we can take on this without some difficulty. 

And furthermore, we have some ideas but they are to the point 

where I would like to look at them more technically before I would 

espouse a number of different thoughts on how to deal with it, sir. 

One of the concerns that I have is the interpretation that everything has to be closed. You know, there might be some alternatives 

to dealing with sites as they exist today as long as there is monitoring that does take place. If landfills fall within the exemptions 

of the 20 tons per day in a semiarid location, they are exempt from 

the requirements till October of 1995. 

Well, that has been extended now a couple of times. I am not 

here to advocate for an extension, but there are things we need to 

look at to deal with the special circumstances of the coastal communities in Alaska. 

Mr. YOUNG. I agree with you, Mr. Hartz. I just would suggest 

that you, as a leading agency in this, and we do think you have 

the ability to do it, has to come up with some alternatives. But discuss it with the villages that are affected. 

See, we have an arid area, for instance. We have no aquifer at 

all. We have managed that site fairly well. I think it could probably 

be managed a little better, with a little expertise and maybe a little 

extra money, we might be able to handle it a little better than we 

have in the past. 

But we cannot afford, and I have about 175 of these villages in 

Alaska that has no economic base at all. But they are receiving letters now, the Tribal Council is if it is a Tribal Council and if it is 

a City Council, they are receiving these letters from the EPA and 

the State and the DEC and everybody else and these villages and 

councils are very concerned. 

Like you say, maybe there is a better way of doing it other than 

having the Federal Government saying this is what you have to do 

or you are going to go to jail. This is the thing I object to. 
33 

Again, we will back you up to the best of our ability. I hope that 

we can appropriate money. I am not terribly optimistic sometimes 

because sometimes money get sent to other places. 

But please be aggressive in this. That is all I am asking. Be the 

aggressor. 

We have given you the charge, so come to us and ask for help. 

Come with some ideas. I don't blame you for not bringing them up 

today, but come with some alternate ideas so we can meet this 

challenge of safety and health and to the benefit of these villages. 

That is all I am asking. 

Thank you, Mr. Chairman. 

Mr. HARTZ. And we have the backing of the mission of the Indian 

Health Service that, you know, we will advocate for the improvement of health and the environment. And I thank you for your 

comments, sir. Mr. RICHARDSON. Let me say to the gentleman from Alaska I 

agree with him. I think we have to have resources to deal with this 

issue, not just policy, and I will work with the gentleman to include 

Alaska Natives. 

It just seems that we keep excluding people. I know you have a 

resources problem. But I think the gentleman is right. You have to 

show leadership, and we will help you do that. 

Let me ask you, Mr. Hartz, why is there such a discrepancy in 

the number of dump sites? You have testified that there are 600 

open dump sites on Indian lands. Yet testimony by the National 

Tribal Environmental Council, which will be testifying after you, 

says there are 1500 sites, 400 on Navajo alone. What is the discrepancy here? 

Mr. HARTZ. I am not here to challenge their numbers, but I can 

tell you how I believe that there .could be some differences. For one 

thing, the definition that one would use for what is a dump site has 

typically been the major problem. I know from past testimony of 

the Navajo Nation, depending on the definition that is used, it 

ranges anywhere from 130 to 1000 sites on the Navajo Nation 

alone. 

So, it really comes down to, Mr. Chairman, what criteria you are 

using, and we have used the criteria in our 600-plus sites of active 

sites that routinely and regularly are being utilized for the disposal 

of solid waste. And then in the Senate version that is before you, I guess I 

would have to say it seems to track a little bit closer to the definition that we would be using as they identify the size of the site 

being a half acre. There are a lot of individual sites that are very, 

very small that a private family might be using that could very 

well be part of that large inventory. 

One other comment I wanted to address, and maybe I was misunderstood in some of my earlier responses. I do not believe that 

the Alaska villages are exempt from this current legislation based 

on the actions of the Assistant Secretary of Interior that designated 

the Alaska villages as Federally recognized tribes. And, as a consequence of that, it was my understanding that 

they would qualify under this particular legislation. But I stand to 

be corrected on further review of you gentlemen. 
34 

Mr. RICHARDSON. The gentleman from Alaska has another hearing, and I will defer my question time to him if he wishes. Mr. YOUNG. No, no question. Just on this-there are two things. 

In the Senate bill S. 1686 they refer just to ANCSA lands, and it 

was put in specifically, primarily for toxic waste. 

Because we have like in the Bethei area toxic sites that have, of 

all things, asbestos. Some Native Corporations lands have been 

told they have asbestos in buildings and. It costs them $2 million 

to knock a building down. It is more than the land is worth, and 

we think that is very unfair. 

If it is an agency that transferred that land, then, in fact, the 

agency should take the responsibility of removal of whatever toxic 

wastes was left there by a Federal agency, especially if it is toxic. 

Natives shouldn't be held responsible. 

We can address the other issues of the qualifications under the 

substitute the chairman is going to be introducing. So, I don't think 

there is any dispute with your statement at all. 

I do apologize, Mr. Chairman. I have to go to Post Office and 

Civil Service Committee. 

Mr. RICHARDSON. I thank the gentleman. 

We have to make sure in the substitute amendment, we include 

Alaska lands because the Senate language, I am informed by the 

staff, does not include them. It leaves it rather unclear. So, this is 

something that we will do. 

Are you basically stating that, in your judgment, Akaska lands 

should be included? 

Mr. HARTZ. Not only in my judgment do I believe they should be 

included, but based on counsel-because I expected this question 

might come up, counsel has advised me that they are included. So, 

if not, we certainly concur in any amendment that would address 

that. 

Mr. RICHARDSON. Do you agree there is a trust responsibility to 

protect Indian tribes and their lands from environmental degradation? 

Mr. HARTZ. You have ventured into an area that is beyond my 

purview as an engineer regarding the law and trust as it applies 

to Indian land and as it relates to the environment. I defer to the 

Bureau on that. And if that is not satisfactory, I will have to provide it for the record, sir. 

Mr. RICHARDSON. The answer is overwhelmingly yes, but I know 

your area of expertise is in something else, so I won't press you. 

I don't need an answer from the Bureau on that. I just want everybody in the Federal Government to know this. The answer is 

yes. We have Federal trust responsibility for these lands and this 

Congress and this subcommittee will make sure that responsibility 

is carried out. 

You also talked about in your testimony the critical need for tribal waste management, the solid waste management plans. Do you 

think that we ought to include that in the substitute amendment, 

a comprehensive solid waste management component? 

Mr. HARTZ. I think, as I indicated in my opening comments, and 

you did as well, that that is an excellent idea. The reason is because I have seen closures occur in the past as a part of the sanitation facilities program that we currently carry out. Without a plan 
35 

that adequately addresses the alternative disposal, the waste is 

brought to the "old" landfill by the constituency. If no one knows 

where the waste goes after the first of October because that facility 

will no longer be available, then undoubtedly you are going to have 

waste being dumped at the gate of the fence of the old site. 

I absolutely concur, a hundred percent, with you on that. 

Mr. RICHARDSON. Now, you know we have made some progress 

in the last 10 years on addressing sanitation deficiencies in Indian 

country. The reports we have is that we are making progress. 

Would it make sense to develop a separate 10-year plan to address 

the solid waste needs in Indian country? 

Mr. HARTz. We have found that with the passage of the Indian 

Health Care Improvement Act and the amendments, specifically, of 

1988, where it called out not only a 10-year plan but it highlighted 

various levels of deficiency, it called for submission of a priority list 

to the Congress so that you were aware that there was a very formal process by which we were addressing the deficiencies. That has 

proven to be very, very beneficial in addressing water, sewer and 

solid waste. 

That would likely be as appropriate and applicable to the solid 

waste alone. There is always that concern as to how these authorities for appropriations would compete with the monies that we already are having appropriated, some of which is going to solid 

waste. 

Mr. RICHARDSON. Now, are there any barriers to the IHS utilizing any Federal, other Federal or non-Federal funds to carry out 

their responsibilities under this Act? 

Mr. HARTZ. I can't immediately come up with any barriers. We 

have been able to work very closely with EPA on its Clean Water 

Act set asides for Indian tribes. We have worked with HUD, the 

CDBG program. 

I can give you examples right now where there are funds going 

to the Zuni tribe from HUD that we are participating in. There are 

funds going to the Makah Tribe for waste-the Zuni is solid waste. 

The Makah Tribe for wastewater that involves HUD, IHS and 

EPA. 

I think that the only thing that I could think of, and this is very 

technical now, in the bill that in one place refers to the use of contract. We have the flexibility of using a lot of mechanisms for assistance through the Memorandum of Agreement, et cetera. That 

would be something that would provide us with flexibilities other 

than just using a contract. And that might just be an oversight, but 

that was one point that I do note. 

Mr. RICHARDSON. The Memorandum of Understanding that you 

are talking about with BIA, EPA, and HUD. Is there any money 

provided to tribes pursuant to this MOU? 

Mr. HARTZ. Okay. You are talking about kind of an umbrella 

MOU that deals with a lot of aspects of the environment? 

Mr. RICHARDSON. Right. 

Mr. HARTZ. Is that the one? Okay. 

That outlines the relationships of cooperation among the various 

Federal entities. There specifically is no money in that agreement. 

However, we look to projects, and, in fact, we will combine our 

monies under the current sanitation facilities appropriation with 
36 

money from a HUD project that might have a need for off-site 

water and sewer facilities for new homes. That will involve money. 

The Bureau might be providing money associated with, you know, 

some activities that they have going on. 

It really lays the groundwork for continuing communication and 

dialogue. 

Mr. RICHARDSON. All right. Well, Mr. Hartz, I am pleased with 

your testimony. I must say that you seem to grasp the need to deal 

with this issue. I would like to do a substitute very soon with Mr. 

Young, and I would hope we can get your cooperation in drafting 

that. We would want Administration support for it. 

I think we have a real opportunity to do some good and we 

should move. So, with that let me thank you all. 

Do any of your illustrious colleagues want to say anything for the 

record here? Do each of you very briefly want to say anything? 

Mr. CROW. No, thank you, Mr. Chairman. 

Dr. BARROR. I have nothing to say, sir. 

Mr. RICHARDSON. All right. 

Mr. HARTZ. Thank you for your time. 

Mr. RICHARDSON. Thank you, Mr. Hartz. 

PANEL CONSISTING OF SAMUEL L. WINDER, EXECUTIVE DIRECTOR, NATIONAL TRffiAL ENVIRONMENTAL COUNCIL, ALBUQUERQUE, NM; HON. BOBBY WHITEFEATHER, CHAIRMAN, 

RED LAKE BAND OF CHIPPEWA INDIANS, MINNESOTA; SADIE 

HOSKIE, DffiECTOR, NAVAJO NATION ENVIRONMENTAL 

PROTECTION AGENCY, WINDOW ROCK, AZ; TONY SMITH, ESQUIRE, ON BEHALF OF THE ALEUT NATIVES ON THE 

PRIBILOF ISLANDS, AK; AND G. CHAD BOWECHOP, ENVIRONMENTAL PLANNER AND MEMBER, ON BEHALF OF THE 

MAKAH TRIBAL COUNCIL, NEAH BAY, WA 

Mr. RICHARDSON. We move on to our second panel, Mr. Samuel 

L. Winder, executive director, National Tribal Environmental 

Council, from Albuquerque, New Mexico; the Hon. Bobby 

Whitefeather, chairman, Red Lake Band of Chippewa Indians in 

Minnesota-! had the good fortune of meeting Mr. Whitefeather 

last night; Ms. Sadie Hoskie, director of the Environmental Protection Agency of the Navajo Nation, Window Rock, Arizona; Mr. Tony 

Smith, Esquire, on behalf of the Aleut Natives on the Pribilof Islands of Alaska, who has worked with us for many years on these 

issues; Mr. Chad Bowechop, Environmental Planner, from the 

Makah Tribal Council, Neah Bay, Washington. 

Ladies and gentlemen, welcome to the subcommittee. 

We will start with Mr. Samuel Winder, executive director, Tribal 

Environmental Council, from Albuquerque, New Mexico. 

STATEMENT OF SAMUEL L. WINDER 

Mr. WINDER. Thank you, Chairman Richardson. Greetings from 

the State of New Mexico. 

I would like to thank the Subcommittee on Native American Affairs of the Committee on Natural Resources for conducting this 

hearing and inviting the National Tribal Environmental Council to 

testify. 
37 

I am the Director of NTEC. This is the first opportunity I have 

had to testify before a committee of Congress with regard to any 

legislation, and it is basically a good opportunity to raise some issues of national concern that affect every Indian tribe in the country. 

Each tribe has their own unique relationship with the Federal 

Government. Therefore we are very cautious with regard to any positions that we take on any legislation. 

However, after having the opportunity of polling our member 

tribes on this important measure, I was given the opportunity to 

pursue giving testimony to this subcommittee. 

Just some brief background on the National Tribal Environmental Council before I give my substantive comments. We are a 

tribal membership organization. Currently, there are 49 tribes from 

throughout the country that are members of NTEC. Our goal is to 

assist tribes in developing environmental regulatory programs. 

There are four villages from Alaska that are currently members 

of NTEC, and there are several tribes in the State of New Mexico 

that are members of NTEC. · To enhance the organization's ability to serve tribal interests, 

NTEC conducted a National Environmental Review of Indian country. That document is attached as an exhibit to our testimony. 

We developed a final report which basically addresses some of 

the concerns of Indian tribes from throughout the country, and one 

of those priorities is solid waste and water quality. 

I believe that you may have mentioned a number earlier, and we 

did make a mistake in our testimony. The amount of sites identified by tribes pursuant to our survey was 1603, and that number 

does not take into account the Navajo Nation, so the number may 

be even more significant. And this survey only took into account 

149 tribes. We sent out this survey document to every tribe in the 

country, but we received 149 responses back. 

As you will see in the document, the survey tool is very brief. It 

is about 8 or 9 pages. One of the tragedies is that some tribes don't 

even-they didn't even have a staff person to fill out the assessment. So, that is one of the issues of concern for tribes, not having 

one person on staff to really assess the environmental problems on 

their lands. 

With regard to S. 720, NTEC is supportive of this measure. We 

believe it is necessary in order to close a gap in the authority which 

the Congress has conferred on the Indian Health Service with regard to sanitation facilities. 

As Mr. Gary Hartz mentioned earlier, the IHS had made some 

significant progress in the sanitation and water arena, but with regard to solid waste there are certainly some major problems, and 

we believe that this measure is needed to fill that gap. 

With regard to solid waste management plans, we believe that 

there should be some language included in this measure that will 

address the development of solid waste management plans. One of 

the basic issues with regard to SW&Ps is assessing how many open 

dumps there are on your reservations if you go through the development of that process. 

One of the questions you raised earlier with regard to a discrepancy between our numbers and the Indian Health Service num-
38 

hers, that goes back to the criteria. Certainly those tribes that responded, they sought open dump, dump sites on their reservations 

and they went ahead and indicated that in the survey, which they 

went ahead and filled out. We commend the Red Lake Band of Chippewa for suggesting an 

amendment with regard to demonstration projects. We believe that 

there are tribes that have made some significant progress but they 

need funding to move forward in closing the open dumps. 

However, with regard to the demonstration projects, we suggest 

that there be language included that will ensure that the success 

of these projects are spread to other tribes. 

Finally, one of the major issues is funding. How will the Indian 

Health Service implement the mandate set forth in any measure? 

There need to be direct funding allocation set aside for any measure developed. 

Finally, I would like to thank the chairman for his amendment, 

his amendment to the Solid Waste Disposal Act. Tribes currently 

are not treated as States for purposes of the Resource Conservation 

and Recovery Act, however we are subject to liability. We applaud 

you for moving forward on that. That will allow tribes to receive 

adequate funding to address the mandates set forth in RCRA. 

We thank the subcommittee for conducting a hearing on S. 720. 

We recognize that S. 720 will not address all the clean up of open 

dumps in Indian country, but we believe it will address the gap discussed above. We recommend the bill be passed with the suggested 

amendments. 

Thank you. 

[Prepared statement of Mr. Winder follows:] 
39 

Testimony of the 

National Tribal Environmental Council 

Before the 

Subcommittee on Native American Affairs 

of the Committee on Natural Resources 

Regarding 

S. 720, the Indian Lands Open Dump 

Cleanup Act of 1994 

Environmcrntal 

Council July 26, 1994 

INTRODUCTION 

Mr. Chairman and members of the Subcommittee on Native American 

Affairs of the Committee on Natural Resources, my name is Samuel Winder, 

Executive Director of the National Tribal Environmental Council (NTEC) . I 

appreciate the opportunity to provide comments on S. 720, the Indian 

Lands Open Dump Cleanup Act. 

The National Tribal Environmental Council 

NTEC was formed three years ago as a membership organization 

dedicated to assisting tribes in the protection and preservation of Indian 

environments. NTEC's mission is to enhance each tribe's ability to protect, 

pceserve and promote the wise management of air, land and water for the 

benefit of current and future generations. Currently membership consists 

of 49 federally recognized tribes located in fifteen states active in 

developing tribal environmental programs. 

To enhance the organization's ability to serve tribal interests, NTEC 

based it programmatic initiatives on a diagnosis of the current and 

anticipated environmental circumstances and needs of tribes . To determine 

these tribal needs and to ensure that NTEC embodies a comprehensive 

National Tribal Environmental Council Page 1 
40 

·response to those needs, NTEC launched an ambitious National Environmental 

Review (NER) in February, 1993. On May 17, 1994, a National Tribal 

Environmental Review Final Report (Final Report) was generated which 

analyzes the responses received from 149 tribes who participated in the 

review (Exhibit 1 ). 

The NER findings suggest that Indian Country is subject to a broad 

range of environmental problems including surface and ground water 

contamination, illegal dumping, hazardous waste disposal, military threats, 

air pollution, mining wastes, habitat destruction and human health risks. 

Across the nation, solid waste and landfill issues appeared to be a leading 

concern among tribes. 

An issue which exacerbates the problems in Indian Country is the lack 

of environmental regulatory programs. For example, the NER findings 

indicate that only 53% of the responding tribes have environmental 

regulatory programs. Only 38% of the responding tribes currently exercise 

regulatory power in the solid waste arena. 

As presented in testimony by the EPA before the Senate Indian Affairs 

Committee, the EPA recently awarded a grant to the National Tribal 

Environmental Council for the development of a tribal peer match program. 

The purpose of the peer match program is to identify and match environmental 

experts in tribal environmental programs nationwide to assist tribes that 

need specific assistance in addressing their problems. 

Background 

As the hearing record of S. 720 shows, there are innumerable open 

dump sites that do not comply with federal regulations. Section 2 of S. 720 

states that "there are over 600 open dumps on Indian lands." We believe 

that this figure is much greater. The Senate Committee Report accompanying 

S. 720 reports that it is not known with any precision exactly how many 

open dumps sites are located on Indian lands, the total acreage involved or 

the overall severity of the threat posed to public health and the environment. 

The findings of NER discussed above indicate that there are 1 503 open 

dumps in Indian Country. The number of open dumps in Indian Country is 

National Tribal Environmental Council Page 2 
41 

certainly higher since our numbers only take into account 149 tribes. The 

NER findings also indicate that 30% of tribes listed landfills as contributing 

to water pollution. 

As the Subcommittee is aware, one of the major problems tribes face 

is the lack of federal funding. Despite the ability to secure necessary funds, 

tribes, who are not treated as states for purposes of the Resource 

Conservation and Recovery Act (RCRA), are subject to liability in light of 

Blue Legs v. EPA, 867 F. 2d 1094 (8th Cir. 1989). 

We commend Chairman Richardson for his leadership in introducing 

H.R. 1267 legislation that would help address this concern. "Treatment 

as states" status to Indian tribes for purposes of RCRA would authorize 

Indian tribes to assume primary enforcement responsibility for programs 

and projects, and to receive direct funding allocations. 

Last Congress, the Senate Committee on Indian Affairs spent time 

and effort on S. 1 68 7, the Indian Tribal Government Waste Management 

Act. S. 1687 attempted to provide a comprehensive framework for dealing 

with all of the problems associated with the handling of solid waste on 

Indian lands. We understand that one of the goals of S. 1687 was to 

address as fair division of authority and responsibility between the three 

federal agencies. Although S. 1687 was favorably reported to the Senate 

by the Senate Indian Affairs Committee, it was not considered further 

because of objections raised by the Committee on Environment and Public 

Works, the EPA and the BIA. The Senate Environment and Public Works 

Committee was concerned about inappropriately amending the Solid Waste 

Disposal Act. The EPA testified that the conferred authority contained in 

S. 1687 y.Jas not consistent with EPA's regulatory authority. The BIA was 

reluctant to accept new duties which were imposed. 

S. 720. the Indian Lands Open Dump Clean-Up Act 

As we understand, S. 720 is limited to the problems of closure and 

postclosure maintenance of open dumps on Indian lands. S. 720 does not 

amend or alter existing Federal environmental laws, including the Solid 

Waste Disposal Act. S. 720 does not impose any new responsibility or 

National Tribal Environmental Council Page 3 
42 

authority on the BIA with regard to the closure and postclosure maintenance 

of open dumps on Indian lands. 

NTEC supports S. 720 which will provide IHS with the authority to 

respond to request from Indian tribal governments for assistance in 

conducting inventories of open dumps sites located on Indian lands and 

assessing the relative risks such sites pose to human health and the 

environment. NTEC commends the Senate for passing such an important 

measure. The major concern is whether there will be adequate funding to 

address the mandates set forth in the measure. 

S. 720 is necessary in order to close a gap in the authority which the 

Congress has conferred on the IHS with regard to sanitation facilities . The 

IHS has general authority to act to abate threats to public health; it does 

not operate under any specific authority with regard to closure and 

postclosure maintenance of open dumps. S. 720 will provide authority and 

establish an orderly procedure to bring about the proper closure and 

postclosure maintenance of open dumps on Indian lands. 

We believe that this gap must be filled. We also agree that the IHS 

has a core of qualified personnel with the requisite experience to address 

these issues. However, we believe it is important that the Subcommittee 

inform the BIA through report language that it is not relieved of its primary 

responsibility for the protection of lands held in trust be the Federal 

Government for the benefit of Indian tribe or individual Indians. In addition, 

other federal agencies have responsibilities in this arena . • 

There is currently no language in the bill that requires that the IHS 

provi~e financial or technical assistance to develop solid waste management 

plans. We suggest that there be a planning component added that will 

require the IHS to assist tribes. 

' Three years ago, BIA, EPA, HUD, and IHS signed a Memorandum of Understanding 

(MOU) recognizing that each has responsibilities and interests pertaining to the protection 

of the environment and human health as it relates to pollution control on Indian lands. The 

purpose of the MOU is to identify areas of mutual interest and responsibility of the four 

agencies and to encourage the coordination of the agencies' respective activities to promote 

the most efficient and integrated utilization of resources. 

National Tribal Environmental Council Page 4 
43 

Section 5(b) authorizes the Director to establish a small demonstration 

project to test the cost efficiency of proceeding to implement the Act 

directly or through Self-Determination agreements and to identify any 

unusual cost factors associated with closure and postclosure maintenance 

of open dumps on Indian lands. The section states that no more that three 

Indian tribal governments will be eligible to participate in the demonstration 

project and no demonstration project can exceed three years in duration. 

The four tribes identified in the Senate report are: the Makah Tribe of 

Washington, the Red Lake Band of Chippewa in Minnesota, the Oglala 

Sioux Tribe of the Pine Ridge Reservation in South Dakota, and the Navajo 

Nation in Utah, New Mexico, and Arizona. These tribes have all compiled 

substantial information and achieved high degrees of planning on solid 

waste issues, including open dumps. However, there are other tribes 

throughout the nation who may be in a similar position. 

We commend the Red Lake Band of Chippewa for suggesting this 

amendment. The Red Lake Band of Chippewa has been at the forefront of 

developing plans that are responsible to the unique cultural, political, and 

physical characteristics of its Reservation and country. 

We agree that the demonstration projects could serve as important 

models for addressing the magnitude of problems in the future. We suggest 

that there be language included that will ensure that the success of these 

projects are spread to other tribes. 

Finally, we again reiterate that the good intentions of this bill will not 

be implemented without language for a specific appropriation. We suggest 

that a specific amount be authorized. 

CONCLUSION 

We thank the Subcommittee for conducting a hearing on S. 720. 

Although S. 720 will not address the clean-up of all the open dumps in 

Indian Country, we believe it will address the gap discussed above. We 

recommend that the bill be passed with the suggested amendments. 

National Tribal Environmental Council Page 5 
44 

Mr. RICHARDSON. Thank you very much, Sam. We have appreciated all your work on Indian issues over the years. You are a 

former staff member of the Senate Select Committee on Indian Mfairs and worked for our good friend, John McCain, and we are delighted to keep working with you. I, too, would urge you to stay in 

close contact with the staff as we look at the House version of this 

bill. As you mentioned, there are perhaps some improvements that 

can be made. Certainly we have to clarify that Alaska issue, definitely. I think they have to be included in the legislation. 

So, Chairman Whitefeather, please proceed. Welcome again. I 

had the good fortune of seeing you last night, although briefly, on 

the steps of the Capitol. 

STATEMENT OF BON. BOBBY WHITEFEATHER 

Mr. WHITEFEATHER. Thank you, Mr. Chairman. Mr. Chairman, 

and distinguished members of the subcommittee, on behalf of the 

Red Lake Band of Chippewa Indians I would like to extend our appreciation for allowing us to testify on Senate Measure 720, the Indian Lands Open Dump Cleanup Act. 

Mr. Chairman, my name is Bobby Whitefeather. I am the Chairman of the Red Lake Band of Chippewa Indians and have been involved in tribal government for the last 8 years. 

The Red Lake Tribe would like to go on record as strongly supporting Senate Measure 720, and on behalf of the tribe I would like 

to thank the subcommittee for the effort to move the measure forward. Red Lake is particularly interested in supporting the demonstration project that is identified in the legislation. My remarks will be 

primarily focused on a demonstration idea, although I would also 

like to make some other remarks with regard to some of the provisions in the bill. 

As was stated before, Red Lake was at the forefront in initiating 

the idea of a demonstration project, and I think the tribes that 

have volunteered to come forward and do the demonstration 

projects have proved that they have the expertise and the mechanisms in place to start post-closure of open dumps. 

One of the things that I would like to bring out to the subcommittee is that one of the real fears of Red Lake is with this requirement by the Environmental Protection Agency that all open 

dumps be closed, with possible sanctions, fines, what have you, 

that the lack of a tax base of Indian tribes, lack of financial resources, that there is quite a possibility that this type of regulatory 

scheme will prove effect the tribes with regard to their existence, 

and what I am talking about is possible fiscal termination of some 

tribes that can't afford to abide by the regulations that are being 

imposed on Indian tribes. 

Our tribe also requests that there be Federal funding assistance 

to assist us in cleaning up this very dangerous issue of solid waste. 

And I think also solid waste is just the tip of the iceberg on some 

of the potential problems that are on reservations. There could be 

possible existence of toxic wastes, that type of thing, that is out on 

Indian lands that we may not know about. 

On Red Lake we have three major solid waste landfills. We have 

already closed two where we do not allow any more dumping. And 
45 

we have also developed the tribal solid waste management plan 

that we are currently continuing to refine. 

Within the scope of the management plan, we have placed monitoring wells at the existing open dumps. And this was with the assistance of some funding from Environmental Protection Agency. 

However, that is just the beginning of some of the work we are trying to accomplish in addressing our solid waste issue. 

As I stated before, the estimated cost for the closure of the unapproved landfills that we have our estimate is $435. And with that 

kind of cost, the Red Lake Band is not that financially fortunate 

to expend that type money, because, as you well know, throughout 

Indian country we are in the same position where we do still have 

high unemployment, lack of housing, and all the other problems 

that a lot of Indian tribes face. 

We have also used some recycling as a beginning to address the 

issue. As I have stated before, we have identified what it is going 

to cost the Red Lake Tribe to take care of the solid waste issue. 

Our nearest solid waste incinerator is 80 miles. The nearest approved landfill is 135 miles. 

I must stress again to the committee that Red Lake does support 

the demonstration project of S. 720, and we are ready for action. 

We have enacted a solid waste management code in anticipation of 

some of the things that are going to be coming up that Indian 

tribes are going to be required to abide by according to EPA standards. We would like to thank the committee for its support, and Red 

Lake is ready to work with the other demonstration tribes as a 

pilot project to kind of lead the way for other tribes in addressing 

this very serious matter. Thank you, Mr. Chairman. 

Mr. RICHARDSON. The Chair thanks you, Mr. Chairman. 

[Prepared statement of Mr. Whitefeather follows:] 
46 

REDLAKE BAND 

of CHIPPEWA INDIANS 

TIUBAL COUNCIL 

Orgacized April 18 , 11118 OWft•eol COII~haU001 A B:r·L.••. Juuaryl, l858) 

OFPICEB8: B068Y WIUTE:P&Ir. TKO, Cha{I'!DIIll 

.tlJDY ROY, S.C,_.ry J.u(ES (0U3) STRONG, TNIII\&N.I' 

DJ8'TRICT REPRESENfATIVEB: 

ROMAN P. ~ATELY, JR. 

FAIILAH COOK 

Red Lake, MN 56671 Phone 218·679-3341 • Fax 218-679·3378 LARRY IJUDU:Y 

l'lt£91'0N GRAVEll 

l.AWRENCC BI:DEAU 

ALI.CN CNOLUIH, .JR. 

TOM J. STlLLDAY, Jll. 

DMSION: CUWORD C. HAJU)y 

STATEMENT OF 

ADVISORY COliNCIL: 

1 HEAEDITAAY CHlEf"!! 

CHll:f' COUNCQ. Of' 1-

IU)'-<I• lY·,.....,._nind Na .. .,..., .. ,.... Wa,..-•.• ,. Ahnah·m•,.J·pohirf 

N••·•:r·l.lls·-o-tl 

•h wah-q <.~~~J r•llhl.l 

TilE HONORABLE BOBBY WIDTEFEATIIER, CHA.mMAN 

RED LAKE BAND OF CHIPPEWA INDIANS 

Regarding S. 720 -- the "Indian Lands Open Dump Oean-Up Act of 1994" 

Before the House Subcommittee on Native American Affairs 

July 26, 1994 · 

Mr. Chairman, and distinguished members of this Subcommittee, thank 

you for this invitation to comment on behalf of the Red Lake Band of 

Chippewa Indians on S. 720, the "Indian Lands Open Dump Oean-Up Act of 

1994." 

We thank you and the members of the Subcommittee for your continuing 

interest in this critical issue. 

Red Lake strongly supports S. 720 and urges continued commitment on 

the part of this Subcommittee to assist us in our clean-up efforts. We on the 

Red Lake Reservation live with these dumps day after day. They surround us 

and threaten to poison our Earth. Oean-up is obviously in our own best 

interest and that of the Reservation we hold dear. 

The dumps themselves are not the only threat to our Reservation. Also 

threatening our Reservation are federal laws and regulations coming out of the 

Environmental Protection Agency (EPA) that will cost our tribal government 

great sums of money because they impose clean-up costs on Tribes. These socalled "unfunded federal mandates" could bankrupt Tribes like Red Lake. 

Red lal<e Enterprises: Red Lake Sawmill, Red Lake Fishing Industry, 

Red l ake Bingo, Red l ake Builders, Chippewa Trading Posi·Aed Lake & Ponemah 
47 

Unlike state and local governments, tribal governments have no tax base to 

speak of. We have systematically high unemployment rates. Our unique 

relationship with the United States means that tribal governments like Red 

Lake must have the active funding support of federal agencies in order to carry 

out our responsibilities to clean-up these sites. Our claim for federal funding 

is very reasonable, considering the fact that much of this dangerous waste 

accumulated on our Reservation under the watch of our trustee, the United 

States government. 

Not so many decades ago the federal government's policy was to 

terminate Indian Tribes. Today, the federal government's practice of imposing 

on Tribes legal requirements, without the necessary funding, runs the risk of 

financially ruining tribal governments. Fiscal termination is no better than 

political termination for our people. 

Red Lake strongly supports S. 720 as passed by the Senate and urges this 

Subcommittee to adopt a similar measure and secure its passage as soon as 

possible this year. S. 720 would help implement the federal government's trust 

responsibility to Tribes by enabling Tribes to begin the process of cleaning up 

these cancers from our lands. 

Red Lake especially supports the demonstration project provisions added 

by the Senate Committee to S. 720 at the request of the Red Lake Band. Red 

Lake has the administrative management capacity to carry out such a 

demonstration and to make it work as a model for other Tribes. I will spell out 

in more detail our demonstration proposal at the end of my testimony, but first 

I wish to outline some of the special considerations involved with the Red Lake 

Reservation. 

A Red Lake Reservation. 

The Red Lake Indian Reservation is relatively large with a rich natural 

resource base. We have over 800,000 acres of tribal trust land and water. Of 

this, we have 429,000 acres of forest lands, 250,000 acres of lakes, and 126,000 

acres of wetlands. We have over 55 miles of rivers and streams on our 

-PAGE 2-
48 

Reservation. Our Reservation has currently invested more than $1 million in 

waterfowl management. 

Most of the acres which make up our so-called closed Reservation have 

never been broken into allotments nor lost to non-Indians. The remainder of 

the acres are in scattered lands that stretch north of the main Reservation to 

the Canadian border. The largest of these scattered lands is a tract known as 

the Northwest Angle, which is located along the international border with 

Canada. 

Public Law 83-280 does not govern our Reservation. This means the 

Red Lake Band and the United States government have full civil and criminal 

enforcement responsibilities for the Red Lake Reservation. The State of 

Minnesota has no such responsibility or authority over our lands. 

Approximately 5,500 tribal members live on the Reservation; some 2,200 

members now live off the Reservation. Human activity on the Reservation is 

concentrated in and around the four communities of Red Lake, Redby, 

Ponemah and Little Rock. 

Lower Red Lake, located entirely within the Reservation boundary, is 

one of the freshest inland lakes in the United States. Many tribal members, 

especially those in the Ponemah community, survive on a traditional subsistence 

economy of fishing. Protecting the water quality of our lakes and streams is of 

vital importance to the survival of traditional ways, and to the economic 

livelihood of our Tribe's membership. 

B. Cu"ent Landfill Conditions on the Red Lake ReservatioTL 

The Red Lake reservation contains three major municipal solid waste 

landfills. These landfills were first established over ten years ago and are of 

the old-generation type known as open bum dumps. The Red Lake Tribal 

Council began to assess the status of these dumps and to begin development 

of a tribal solid waste management plan in 1990. Our goal was to identify and 

begin to address the concerns raised by our solid waste disposal system. The 

- PAGE3-
49 

Red Lake Tribe's efforts have been at the forefront of tribal government 

actions to carry out good solid waste management plans. 

One result of our efforts has been the construction of sixteen 

groundwater monitoring wells which continuously monitor water quality. This 

infrastructure has been in place now for quite some time. The recurring data 

it produces indicates the presence of volatile organic compounds. Fortunately 

the concentration levels we have discovered have not yet begun to exceed the 

maximum contaminant levels. 

Our greatest concern with the dumps as they currently exist is the threat 

of contamination they present for groundwater and storm water runoff. This 

contamination endangers the quality of our drinking water supplies and the fish 

and wildlife affected by our nearby lakes and streams. Our dumps also 

endanger our air and attract flies, vermin and cause other health problems to 

humans and the general ecosystem surrounding these dumps. 

C. The Red Lake Tribal Council Has Already Begun to Close Reservation Dumps. 

Red Lake's goal is to shut down, on a permanent basis, the three dumps 

currently operating on the Reservation as soon as possible. The Tribe has 

barred two of the dumps from accepting any further waste but has been forced 

to maintain operations at the remaining dump for lack of an alternative 

disposal program that is both economically and programmatically feasible. 

In preparation for the permanent closure of all three dumps, the Red 

Lake Band has developed a detailed Closure/Post-Oosure Plan. The Plan has 

selected a cover cap design that reduces percolation of water through the 

wastes, is stable, withstands waste consolidation, promotes uncontaminated 

runoff, and does not erode. The Plan also specified the need for the 

installation of vent caps and vapor monitoring wells to handle the production 

of methane gas. The estimated cost of this closure activity is $435,000.00. 

-PAGE 4-
50 

nm RED LAKE BANI> oF CHIPPEWA INDIANS 

HONORABI..E BOBBYWHrrEFEA"iHER. CHAI~ . SUBCOMMrrrEE'ON NATivE AMERICAJ•i 

,NDIAN LANDs OPEN DUMP CLEAN-UP 

D. S. 720 Authority and Accompanying Funding Is Critically Needed. 

A top priority for our Tribe is the continued protection of our water 

quality and the health of our Tribal members. The Red Lake Band, however, 

lacks the necessary funds to carry out critically needed dump closure activities. 

S. 720 would provide specific authority that would permit these closure 

activities to be taken at once either directly by the Indian Health Service (lliS) 

or by the Red Lake Band under Self-Determination Act contracts or grants 

with IHS. 

Red Lake has approached both the Indian Health Service, a federal 

agency mandated to provide sanitation facilities and other public health 

infrastructure systems, and the Bureau of Indian Affairs repeatedly for funding 

assistance in closing its Reservation dumps. But because of lack of funding, 

IHS has been unable to provide even the most basic of services on our 

reservation. The BIA has been somewhat more responsive, providing the Red 

Lake Band with limited fmancial support. In fiscal year 1992, BIA provided 

$60,000 to make a modest beginning at our Phase 1 closure activities for 

cleanup and waste consolidation. In fiscal year 1993, BIA provided another 

$40,000 for dump clean-up activities, as well as solid waste planning, 

construction and program activities. 

But the basic problem is this. We have cost effective plans to close our 

dumps but no funds to carry out those plans. At the same time, the Tribe must 

deal with a federal mandate, under the Solid Waste Disposal Act and 

regulations promulgated thereunder, to have cleaned and closed these dumps 

by April 9, 1994 and to operate any new municipal solid waste land fills on our 

Reservation under strict and costly requirements. Red Lake, like most if not 

all Tribes, has been unable to comply with the April 9th deadline. 

After our Tribe acts in compliance with federal requirements to close its 

dumps, the Red Lake Band faces the continuing challenge of instituting 

measures that will reduce its solid waste stream and provide proper disposal of 

the remaining solid wastes. Red Lake is beginning to develop our tribal 

environmental infrastructure but we are doing so after years of being ignored 

- PAGE 5-
51 

and isolated as federal funds have gone to states and localities in the form of 

technical assistance and infrastructure grants. Only recently have Tribes been 

treated as states in various environmental bills and we are only beginning to 

gain access to the resources of the U.S. Environmental Protection Agency. 

E. The Biggest Clwllenge Comes After Red Lake Closes Its Dumps. 

We encourage the quick passage of S. 720. Our action, however, must 

not stop there. Additional federal legislation should be passed immediately 

following enactment of S. 720 that will provide authority and funding to other 

Tribes like Red Lake whose Reservations are located in remote rural areas in 

the northern United States. 

Due to our region's heavy precipitation patterns, harsh winter weather, 

and geological formations, we are required by definition to meet the most strict 

of the U.S. EPA municipal solid waste landfill requirements. Given our 

sovereign status, we have as a Tribe few if any feasible alternatives to a tribally 

operated landfill. If we do not operate an on-Reservation landfill in 

compliance with federal regulations, we will need to ship our solid waste off the 

Reservation. The nearest solid waste incinerator is 80 miles away. The nearest 

state approved landfill is 135 miles away. The costs of using an off-Reservation 

site are prohibitive. We have received cost estimates ranging between $250,000 

to $300,000 for transportation and tipping fees alone. In addition, to comply 

with regulatory requirements, we would need to construct at least two transfer 

stations on Reservation (estimated one"time cost: $230,000), purchase necessary 

transportation vehicles (estimated one-time cost: $250,000), and assume an 

annual operation and maintenance cost of $120,000. These costs could only go 

up, and an off-Reservation system raises additional implications of future cost 

liability for closure and clean-up activities at sites we do not control. 

By far the most preferable direction for the future is to provide adequate 

federal funding for Tribes like Red Lake to take care of our own solid waste 

stream, in ways that are appropriate to each Tribe's scale of operation, cultural 

values, type of waste, and geographical characteristics. We at Red Lake are 

committed to reducing the solid waste we generate and to disposing what we 

-PAGE6-
52 

generate in a safe and environmentally-sound manner that does not threaten 

future generations. For example, Red Lake has enacted a comprehensive solid 

waste code as part of our tribal law, and has instituted a Reservation-wide 

recycling program. 

F. Authorization of a Demonstration Program. 

The demand by Tribes across the United States for federal 

appropriations to carry out dump closures will sharply increase as the 

comprehensive inventory authorized under S. 720 is completed and a priority 

list is established to determine the order of closure of such dumps. 

There are, however, dumps which are currently ready for closure on 

several Reservations, including the Red Lake Indian Reservation. The severity 

of the threat to Red Lake's community health and the environment created by 

these dumps has already been assessed. Red Lake has cost-effective closure 

plans already drawn and cost estimates in place. Everything is ready for action 

-- action that does not need to wait for years to go by as a nation-wide 

inventory and assessment process is administered by IHS. 

Red Lake strongly supports a demonstration project that provides for 

early closure by a few, selected tribal governments of the dumps on their 

Reservations. Such a demonstration would serve as an important model for 

taking the massive action later required for virtually all Reservations. 

The Red Lake Band has been at the forefront of Tribes in developing 

Reservation dump closure plans that are responsive to the unique cultural, 

political, and physical characteristics of its Indian Reservation and community. 

Red Lake would be a model demonstration Tribe for these purposes. 

Red Lake ftrst proposed the idea to the Senate Committee, and now fully 

supports the S. 720 provision providing authority for a demonstration project 

that will fund, on a competitive pilot project basis, the closure of a few dumps 

on a few Reservations which already have cost-effective closure plans and that 

will also fund the development of replacement disposal systems on those 

-PAGE7-
53 

Resetvations which have a solid waste plan for cost effective solid waste 

disposal. It is our sincere hope that demonstration projects could begin as 

early as F.Y. 1995. 

Demonstration authority in S. 720 could do two things. Initially, it could 

permit Tribes like Red Lake, who are poised to move quickly, to pave the way 

for other Tribes. The demonstration experience at Red Lake and other pilot 

Resetvations could be evaluated in order to guide larger scale efforts in the 

future with Resetvations across the United States. It could show other Tribes 

exactly what infrastructure and plans are necessary prerequisites for cleanup 

and development of cost-effective replacement systems. 

Secondly, and perhaps most importantly to a Tribe like Red Lake, a pilot 

project could provide a real opportunity to show that Tribes can administer 

these activities themselves under Public Law 93-638 Self-Determination 

contracting authority with lHS. In this way Congress could help deter the 

bureaucratic tendency to retain power and funds within the control of the 

federal bureaucracy on new initiatives like dump clean-up and instead 

encourage lHS to contract with each Tribe wanting to control this effort 

themselves with lHS funding support. 

A new lHS bureaucracy with solid waste engineers and experts is not 

necessary for the success of this project. Red Lake already has its own, 

Resetvation-based, tribal engineering and environmental staff who have 

received training in solid waste management, landfill design, and landfill closure 

and post-closure care. Additional technical expertise could be purchased 

locally within Resetvation areas by Red Lake or any other Tribe. We think a 

pilot project that included Red Lake would help chart an effective, triballycontrolled path for this effort. 

Red Lake applauds the inclusion in S. 720 of the authority to establish 

demonstration projects. However, we commend to the Subcommittee's 

- PAGES-
54 

attention the following language we initially provided to the Senate Committee 

and urge you to consider adopting its more express requirements for the 

demonstration project •• 

SEC. 8. DEMONSTRATIONPROGRAM. 

Within 180 days of enactment of this Act, the Director 

shall select and fund no fewer than six Indian tribes, from 

among competitive applications, to participate on a 

demonstration basis in a two-year tribally-controlled effort to 

close dumps on their reservations and develop replacement 

solid waste disposal systems. A participating tribe shall have 

already developed a cost-effective dump closure plan and an 

appropriate solid waste plan for a replacement disposal system. 

The demonstration experience of participating tribes shall guide 

the Director in carrying out other duties under this Act. 

Red Lake continues to believe that six Tribes, rather than the three 

allowed for in the Senate bill, would be a more appropriate number of 

demonstration projects to authorize. There is a high demand among diverse 

Indian Tribes for immediate action on this issue and there are numerous other 

Tribes anxious to participate in a demonstration project to close and clean up 

their open dumps. 

Red Lake also is convinced that to be effective the demonstration project 

should address a Tribe's need to develop replacement solid waste disposal 

systems. Oosing up old dumps fJXes old problems that would otherwise 

threaten the future, but at the same time, Tribes need the support to develop 

alternative ways of reducing and dealing with future solid waste demands. 

Red Lake likewise has concluded that a prerequisite for selection as a 

demonstration Tribe should be that the Tribe has already developed a costeffective dump closure plan and an appropriate solid waste plan for a 

replacement disposal system. Unless Tribes with plans in place are chosen, the 

demonstration effort would focus on planning and design rather than on 

carrying out immediate action that can then serve as the basis of study and 

planning by other Tribes. 

-PAGE 9-
55 

G. Self-Determination Contracting Autlwrity Under Public Law 93-638. 

Red Lake strongly supports language in S. 720 that provides express 

authority to IHS to carry out its duties under S. 720 through contracts with 

Indian Tribes under Public Law 93-638. We believe Red Lake can move more 

quickly and effectively under contracting authority than can the federal 

administrative structure within the IHS, and the challenge posed by those open 

dumps requires the fastest possible response. 

Red Lake also requests that Congress consider extending in the future 

this same Self-Determination Act contracting authority to U.S. EPA funds. 

President Clinton has also indicated that this is a goal he supports. We would 

hope this Subcommittee moves quickly to implement this new direction. 

We also suggest that the Committee Report language indicate that it is 

the intention of Congress that the IHS shall use Public Law 93-638 contracting 

authority, whenever a Tribe so requests, on all duties arising under S. 720. 

H. ConclusioTL 

Red Lake needs quick enactment of S. 720 so that its work can begin 

immediately. The risk factors are too great, especially when considering the 

subsistence economies, cultural factors, and political sensitivities that could be 

negatively impacted as a result of an open dump releasing contaminate on our 

Reservation. 

Please let us know how the Red Lake Band of Chippewa Indians might 

assist the Subcommittee in refining and securing passage of S. 720 during this 

session of Congress. Thank you for this opportunity to be heard. 

RLENYTST.01 

0152/07285 

-PAGE 10-
56 

Mr. RICHARDSON. The Chair recognizes Sadie Hoskie, Director of 

EPA Navajo Nation, Window Rock, Arizona. 

STATEMENT OF SADIE HOSKIE 

Ms. HOSKIE. Thank you, Mr. Chairman. I appreciate the opportunity to testify before the subcommittee today. I am here representing the President of the Navajo Nation, Peterson Zah, who 

sends his regards and regrets that he can't be here today. 

The Navajo Nation also wishes to thank you, Mr. Chairman, for 

the work that you have done on behalf of not only the Navajo Nation but other Indian tribes nationally in the environmental field, 

especially in the solid waste area and underground storage tanks. 

The Navajo Nation has previously testified before this subcommittee regarding those areas. And today, specifically on S. 720 

we appreciate the opportunity to express our support for the legislation, and also to share with you some of the efforts of the Navajo 

Nation in the solid waste area and what are some of the things 

that we have done up to now. 

We have been talking about doing an inventory, which we have 

done. We have narrowed the range of solid waste sites. Originally, 

we were thinking that we had anywhere from 130 to over 1000 

sites. Mr. Hartz earlier alluded to some of the problems associated 

with even doing an inventory, and that is agreeing to the definition 

of a site, what constitutes a site. We have sat down with IHS and 

BIA at the local level in Window Rock and we all agreed to what 

we are going to use as a site. 

With that the Navajo Nation EPA of which I am the Director, we 

also have a solid waste management program within my department. I am here with the Director of the Solid Waste Program, Mr. 

Marvin Smith. His program led the effort in doing the inventory, and this took us quite some time, as you can gather. The Navajo 

Nation covers a pretty wide land area, and with the remote, scattered location of homes you almost have an open dump site in 

every major community, and then in some cases almost with every 

home site. 

So, we have about 400 sites. We are also assessing-have assessed along with the inventory what the contents are in these 

dump sites, and in some cases we need to go a little more in detail 

on what is in the sites. 

We have also entered into a Memorandum of Understanding 

with IHS and BIA and I have brought a copy of that for the subcommittee today. It was signed by the President of the Navajo Nation, the IHS Area Director and the BIA Area Director on June 14, 

1994. And the MOU basically states that we will work jointly on 

solving the solid waste problem on the Navajo Nation. That the 

first item would be to use the list, the inventory list that the Navajo Nation has developed and has as a database. 

Secondly, we will devise alternative solid waste management systems for placement, for replacement in the communities where we 

have open dump sites. 

Thirdly, we will close the listed sites where we have placed an 

alternative for the community to use. Then we will address closure 

of these sites. Following closure we will cover and remediate such 

sites as is necessary to comply with Federal laws and regulations. 
57 

We did this primarily because we felt that the Federal agencies 

were addressing just those sites that they felt were theirs, within 

their administratively withdrawn areas, and ignoring 90 percent of 

the other sites that are out there that communities, Navajo communities are using. 

And in some cases Navajo communities began to rely on these 

sites that were created by either BIA or IHS, and we felt that the 

focus was on closing these sites to meet Federal mandates and Federal deadlines and not really concentrating on providing the appropriate disposal facility for a community to use. 

And we turned that around to where we are talking about building the facilities first and knowing that we have to comply with 

certain mandates, but laying out a plan, a rational plan on how we 

are going to achieve that. And I think that has served the communities a whole lot better than just saying, ''Well, we are going to 

have to do this by October 1995 and you just can't use the site any 

more." 

We also want to express our appreciation for the possibility of 

our being a demonstration project site. We believe that we are a 

strong candidate for that since we have completed an inventory, we 

have a plan, we have sites that are ready for closure right now, 

and it is really a new area. 

We don't know what the costs would be associated with that, and 

I think as a demonstration model we can certainly work out those 

questions a whole lot easier and perhaps replicate that in other 

Navajo communities as well as other tribes. 

We really have been working with other tribes sharing information that we have. We have shared our solid waste code and regulations that the Navajo Nation Council approved and shared that 

with other tribes. 

So, thank you, Mr. Chairman. 

Mr. RICHARDSON. Thank you, Ms. Hoskie. 

[Prepared statement of Ms. Hoskie follows:] 
THE 

NAVAJO 

NATION 

58 

P. 0. DRAWER 308 o WINDOW ROCK, ARIZONA 86515 • (602) 871-6352- 55 

PETERSON ZAH 

PAESIOENT 

Testimony of the Navajo Nation 

Before the 

Subcommittee on Native American Affairs 

of the 

House Natural Resources Committee 

Regarding 

MARSHALL PWMMER 

VICE PRESIDENT 

S. 720, the Indian Lands Open Dump Clean-Up Act of 1994 

July 26, 1994 

Introduction 

Mr. Chairman and members of the Subcommittee, my name is Sadie Hoskie, 

Director of the Navajo Nation Environmental Protection Agency. On behalf of 

President Peterson Zah, I appreciate the opportunity to provide the Navajo Nation's 

comments on S. 720, the Indian Lands Open Dump Clean-Up Act. The Navajo Nation 

previously testified on S. 720 on October 14, 1993 before the Senate Committee on 

Indian Affairs (SCIA). The Navajo Nation also expressed its concerns regarding solid 

waste problems on our lands in a hearing held by this Subcommittee in November of 

1993. 

The Navajo Nation appreciates the commitment by this Subcommittee in 

addressing s·olid waste solutions on Indian lands. We hope that this Subcommittee will 

extend their commitment by ensuring that S. 720 is passed before Congress adjourns. 

The Navajo Nation 

The Navajo Nation is the largest and most populous Indian tribe in America with 

over 219,198 enrolled members. The Navajo Nation encompasses almost one-third 

of all Indian lands in the lower-48 states, with jurisdiction over 17.5 million square 

acres within the states of New Mexico, Arizona and Utah (as large as the state of 

West Virginia). 

Within the context of our traditional values, the Navajo Nation is committed to 

protect, preserve and enhance public health, welfare and environment of the Navajo 

People. The Navajo Nation, through its Navajo Nation Environmental Protection 

Agency (Navajo Nation EPA). administers several programs in waste management 

including solid waste, hazardous waste, and underground storage tanks. The Solid 
59 

Waste Management Program ISWMP) of the Navajo Nation, has taken a number of 

steps to ensure that solid waste facilities existing on the Navajo reservation comply 

with 40 CFR Part 258 of the Resource Conservation and Recovery Act (RCRA). 

However, without adequate resources, physical infrastructure, and authorized 

funding mechanisms, the Navajo Nation cannot fully implement these and other 

environmental programs to meet federal mandates. The solid waste problems that 

plague Indian country require adequate resources for their success. The 110 chapters 

(Navajo local units of government) are limited by the lack of resources for actual solid 

waste facility construction, caretaker salary, and operation and maintenance. 

Scope of the Problem 

The Navajo Nation recognizes the imminent health hazards and environmental 

impact created from unregulated solid waste disposal and other forms of inadequate 

waste disposal. These problems threaten our environment and diminish the quality of 

air, land and water. This cannot be left unresolved. 

Like most Indian reservations, local communities throughout the Navajo Nation 

dispose of their waste at these sites because no regulated facilities are in place. 

Under the current federal statutory criteria. not a single CC!mplying solid waste disposal 

landfill exists within the Navajo Nation. An initial inventory, conducted by the Navajo 

Nation, identifies that nearly 400 open dump sites exist. These open dumps sites are 

not only in violation of existing federal laws and regulations, but pose a tremendous 

threat to the health and welfare of Navajo people as well as the environment. The 

Navajo Nation is in the process of trying to remedy this situation, but suffers from a 

lack of resources to ensure that adequate disposal facilities are in place for people to 

use before all open dumps are closed and covered in accordance with federal 

regulations. 

Many of these dump sites were built by federal government agencies to serve 

their facilities and often were not properly managed or maintained. The Bureau of 

Indian Affairs (BIA) built dump sites to accommodate the solid waste generated by 

their administrative operations and schools. These dump sites were also utilized by 

the Indian Health Service (IHS), Navajo communities and chapters. 

When it comes to solid waste management, a major cost that the Navajo Nation 

has yet to address are those associated with the operation and maintenance of 

transfer stations or landfills. The local chapters, which are responsible for maintaining 

these transfer stations, are expected to absorb the operation and maintenance costs 

once a transfer station is constructed, which they are finacially unable to do. At this 

time, the Navajo Nation is considering a user fee approach to meet the operation and 

maintenance costs, and we are seeking alternative solutions that will not impose an 

undue burden on the local communities, while still promoting proper disposal methods. 

2 
60 

The Navajo Nation's Efforts to Address the Solid Waste Problem 

The Navajo Nation has entered into a tri-party Memorandum of Understanding 

(MOU) with IHS and BIA. These entities agreed to develop a plan for the inventory of 

existing sites, the establishment of alternative solid waste disposal facilities, and the 

phasing in of close and cover operations. With the Navajo Nation in the final stages 

of fully completing its own inventory, the entities anticipate moving toward the 

establishment of alternative solid waste management systems, which must be 

implemented prior to the closing of currently utilized solid waste sites. If alternative 

methods for solid waste disposal are not installed, the Navajo Nation faces the 

possibility of an increased number of illegal dump sites. Given this, the Navajo Nation 

is concentrating its energy and limited resources on the development and construction 

of transfer stations and other alternative waste management systems so that proper 

close and cover operations can begin. 

In the long-term, the Navajo Nation is considering the construction of three 

regional landfills . Because of the new groundwater monitoring requirements for very 

small landfill facilities, the Navajo Nation will have to reassess solid waste 

management alternatives. However, it takes funding and time to establish a regulatory 

program, acquire land to site the regional landfill, coordinate design and engineering, 

establish an operation and maintenance entity, and obtain financing and insurance. 

Despite all our efforts, we need further federal assistance to help us address our 

tremendous task. 

The Navajo Nation Comments on S. 720. the Indian lands Open Duma Clean-Up Act 

The Navajo Nation supports the concept of S. 720 to provide technical and 

federal support to Indian tribes to clean up open dumps on Indian lands. The Navajo 

Nation offers the following comments on the specific provisions of the bill. 

Sec. 3. Definitions 

The Navajo Nation supports the definition of "Indian land" within S. 720 which 

is commensurate with "Indian country" as defined at 18 U.S.C. § 1151. The Navajo 

Nation hopes that Congress will consistently use the Indian country definition in other 

environmental statutes dealing with the authority of Indian tribes. 

Sec . 4. Authority of the Director of the Indian Health Service 

Section 4(a) authorizes the Director to conduct an inventory at the ·request of 

an Indian tribe. The Navajo Nation is in the process of finalizing our own inventory; 

however, we understand that many Indian tribes do not have established solid waste 

3 
61 

management programs or resources to conduct a similar inventory. Therefore, we 

support the intent of the bill to assist those Indian tribes who have yet to conduct an 

inventory. 

Section 4(b) authorizes technical and financial assistance to Indian tribes upon 

completion of an inventory for closure and post-closure maintenance. As mentioned 

before, the Navajo Nation is finalizing its own inventory and is ready to begin closure 

and post closure activities. Should S. 720 be enacted, the Navajo Nation can begin 

to move toward closure procedures pursuant to this section. 

Sec. 5(b). Demonstration Projects 

During the Senate consideration of S. 720, the SCI A recommended the Navajo 

Nation, the Makah Tribe, and the Red Lake Band of Chippewa to participate as 

demonstration sites to identify the unique cost factors associated with closure and 

post-closure maintenance of open dumps on Indian lands. We appreciate this 

recommendation and strongly believe that our participation will enhance our current 

efforts in addressing our solid waste planning needs. The Navajo Nation urges this 

Subcommittee to approve similar language that will direct IHS to designate the same 

three tribes as participants under this section. 

The Navajo Nation is an ideal candidate because we have achieved significant 

progress in our inventory assessments. We are ready to begin close and cover 

procedures. Our work with IHS, BIA, and local county governments. through 

cooperative agreements, indicates a strong commitment to the development of a 

feasible solid waste management plan that involves all responsible agencies. This 

commitment is further indicated by our willingness to seek other resources that might 

be available to solve our solid waste problems . The additional funding would help the 

Navajo Nation close and cover the major dump sites, thus easing the burden of closing 

and covering of all remaining sites . By participating as a demonstration site, the 

Navajo Nation anticipates that our effort will be an effective model for other Indian 

communities to effectively plan for the closure of open dump sites overall. 

Sec. 6. Authorization of Appropriations 

The Senate report language for S. 720 identifies an estimated appropriation of 

$2 million in FY95, increasing to an estimated $18 million in FY99 to implement the 

provisions of this Act. While this funding will certainly go far to assist tribes with open 

dump closure, the Navajo Nation still faces the large responsibility of operation and 

maintenance costs once alternative facilities have been constructed. 

Although S. 720 does not include any funding mechanisms for operation and 

maintenance costs, we hope that future legislative efforts will consider this anticipated 

need. We also hope that the demonstration process will identify solutions and/or 

4 

84-373 0 - 94 - 3 
62 

resources to help the Navajo Nation meet the costs of maintaining future solid waste 

facilities. 

Conclusion 

The Navajo Nation appreciates the opportunity to comment on S. 720 and 

Congress' consideration of the Navajo Nation as a participant in the demonstration 

project. A demonstration model is only the beginning, and does not begin to address 

the larger issues of closing and covering all open dump sites existing on the Navajo 

reservation and maintaining new facilities. However, we need to emphasize time is 

running out for Congress to move this bill forward; therefore, the Navajo Nation urges 

this Subcommittee to move S. 720 quickly and pass the legislation so that Indian 

tribes may have this incentive to advance their solid waste planning. The Navajo 

Nation is committed to providing adequate solid waste services for the Navajo people, 

but cannot without the proper resources. We have a responsibility for the welfare and 

protection of our lands and our people- no responsibility could be more important. 

5 
63 

Mr. RICHARDSON. Mr. Tony Smith, welcome. Once again, thank 

you for your work over the years with our subcommittee on a variety of issues. 

STATEMENT OF TONY SMITH, ESQ. 

Mr. SMITH. Thank you very much, Mr. Chairman, and I would 

like to congratulate you and the members of your subcommittee 

who have done a great job over the years for the Native people of 

the United States and Alaska. 

As a lawyer and a politician, sometimes people always will look 

at us on the negative side of the equation, and it is nice to be able 

to work in a way where instead of having to keep coming up with 

reasons for not doing things you can help people in fact better their 

lives and show them the way to do things. 

I have done that, Mr. Chairman, and that is one of the reasons 

why I am here today. I hope, in part, I was a catalyst for getting 

the Alaska Native Village Corporations back into the bill. 

We have got a problem on the Pribilof Island, Mr. Chairman, because the government ran those two islands, which are 800 miles 

out in the Bering Sea, from the Aleutian Chain, ran those islands 

as a Federal reservation for fur seals, birds and the Aleuts. 

In 1983, the government phased out the fur seal operations and 

transferred the lands, through the Fur Seal Act Amendments of 

1983 to the Aleut natives. Unfortunately, the government operated 

the islands and created a number of dump sites, landfills. 

There are two open dumps. There are two boneyards for vehicles 

on St. Paul and St. George, and there are 60 other dump sites on 

the island that do not meet standards. 

We presently have an interagency task force that includes the 

Department of Commerce, it includes BIA, Indian Health Service, 

the State of Alaska, the Corps of Engineers, and EPA. And one of 

the problems we have is that unless this bill is amended to include 

under the jurisdiction those entities that were transferred lands 

under the Fur Seal Act Amendments we have gaps in authority, and we would like to have the opportunity to work with the staff 

to make sure that those gaps in authority don't create a problem 

for the effort of everyone, the Natives on the islands, and the State 

and Federal Government to clean up these sites. I would like to also point out, Mr. Chairman, that we have another gap in authority that has to do with Indian preference. If this 

bill is not applicable to my clients, the Aleuts on the Pribilofs, 

under the present NOAA Council's interpretation of applicable law, we see the anomaly of people being brought out into the middle of 

the Bering Sea from outside of Alaska to do the cleanup work while 

the Aleut Natives stand by and watch the government's money 

spent on the standard competitive bidding system that the Corps 

of Engineers applies in Superfund sites and all major sites around 

the country. 

That isn't, I believe, the intent-wasn't the intent of Congress 

with the Fur Seal Act Amendments or the Alaska Native Claims 

Settlement Act, nor is it the intent of Congress with this bill, and 

we need to clarify and correct that problem in the statute, and we 

would like to work with the staff on that matter, too. 
64 

Lastly, in terms of resources, because of the interagency effort we 

do have some money that will be included in the Department of 

Commerce NOAA budget for a portion of the closure and cleanup, 

and we need to be part of this bill so that we can have a demonstration project in the Indian Health Service and the BIA can do 

their part to solve the problem when we are in a position to completely solve the problem. 

If my clients aren't included in S. 720, we will be in that anomalous position where you have got some money over here that if you 

could only combine it with some money from a different agency or 

department you would solve the problem, but the problem remains 

unsolved. 

Appreciate your attention. Appreciate your concern with this important problem, Mr. Chairman. It is a pleasure being here. 

Mr. RICHARDSON. Mr. Smith, thank you very much. 

[Prepared statement of Mr. Smith follows:] 
65 

Testimony of Tony Smith 

Attorney For the Aleut Natives on The Pribilof Islands 

Before the Subcommittee on Native American Affairs 

s. 720 an Act "To Clean Up Open Dumps on Indian Lands" 

The House of Representatives 

Committee on Natural Resources 

July 26, 1994 

My name is Tony Smith and I am an attorney in Anchorage, 

Alaska. I appear on behalf of the Aleut Natives on the 

Pribilof Islands in Alaska. The Pribilofs are often called 

the Galapagos of the North and are known for their abundant 

wildlife, marine mammals (particularly the North Pacific Fur 

Seal), birds and flora. The Pribilof Islands are inhabited by 

approximately 750 Aleut Natives and the population of both 

islands is approximately 99% Alaska Natives. The Aleut 

Natives are one of the indigenous groups in Alaska that 

inhabit the Aleutian Islands and the Pribilof Islands. st. 

Paul and St. George Islands comprise the largest indigenous 

Aleut communities in the world. 

For purposes of this hea~ing I represent the Aleut 

community of St. Paul Island, the Aleut community of st. 

George Island, the City of St. Paul Island, the City of St. 

George Island, the Tanadgusix Corporation and the St. George 

Tanaq Corporation. These are all the Aleut entities which 

received title to lands previously part of the United States 

[ 1 96G3-Q001/0A942070.066) 7/27/94 

84-373 0 - 94 - 4 
66 

Government Reservation on the Pribilofs as a resuit o f the Fur 

Seal Act Amendments of 1963, 16 u.s.c. § 1151 ~ ~· 

Background 

Historically the Aleut Natives lived on the Aleutian 

Islands that comprise the Aleutian Chain in Alaska. The 

Pribilof Islands were uninhabited islands and were one of the 

only breeding grounds for the North Pacific Fur Seal and a 

major bird and wildlife rookery area. The Aleuts would travel 

from their villages along the Aleutians to the Pribilofs i n 

order to harvest wildlife, birds and the North Pacific Fur 

seal. 

When the Russians discovered Alaska, they moved a group 

of Aleut Natives to the Pribilof Islands on a permanent basis 

to harvest the North Pacific Fur Seal . The North Pacifi c Fur 

Seal's pelt has been a very valuable commodity in the wor ld 

fur markets for generations . 

At the time of the Treaty of Cession in 1667, the United 

states Government contracted with private companies to take 

over the operation of the Pribilof Island Fur Seal harvest . 

The United States Governme nt continued to keep the Aleut 

Natives on st. Paul and st. George Islands to carry out the 

harvest. In 1911, the Interim Convention for the Protection 

of the North Pacific Fur Seals was ratified in order to stop 

the over harvesting of the North Pacific Fur Seal. Under the 

[ !9653-000 IIDA942070 .055] -2- 7/27/94 
67 

Convention, the Pribilofs were operated by the United States 

Government as a reservation for the benefit of the North 

Pacific Fur Seal, other wil dlife and the Aleut people. The 

United States government maintained the Aleuts on the island 

as a captive labor force. 

In the following decades the United States Government 

operated the Pribilof Islands as a United States Government 

plantation. The Aleuts were kept in virtual slavery in order 

to assist the United States Government in carrying out its 

operations. This history has been documented in a book called 

"Slaves Of The Harvest & A Century of Servitude" by Dorothy 

Jone s . It wasn't until 1966, when Congress held hearings and 

was astounded by the actions of the United States Government, 

that the condi tion of the Aleuts was improved. In 1966, the 

Aleuts on the Pribilofs were finally granted basic r i ghts 

guaranteed to other American citizens by the Constitution, and 

to American Natives by Treaties and The Indian Reorganization 

Act. The Government, however, continued to carry out the Fur 

Seal harvest program and the Aleuts continued to be the 

captive labor force for its operation. 

In the 1980's pressure from various groups resulted in 

the United States Government phasing out the North Pacific Fur 

Seal harvest and conveying the land on st. George and st. Paul 

Islands to the Aleut Natives. The Government's conveyance of 

property, and the Government's effort to create an economy not 

( 19653-000 liD A 942070 .OSS) -3- 7n7!94 
68 

dependent on sealing, was implemented through the Fur Seal Act 

Amendments of 1983, 16 u.s.c. § 1115 et ~· 

Pursuant to the Fur Seal Act Amendments, the Government 

and the Natives entered into a "Transfer of Property 

Agreement" and there was the establishment of the S.t. Paul and 

St. George Island Trusts. While the Trusts were successful, 

the original 10 year term has expired this year. The 

"Transfer of Property Agreement" has only been implemented in 

certain instances. 

For purposes of S. 720, the important fact is that the 

United states Government, in carrying out its activities on 

both islands, created open dumps on these lands which affected 

the health and safety of the residents and the use of Indian 

lands on the islands. At the time of the phase out the Aleuts 

asked the federal government to bring all the facilities and 

dump sites into compliance with applicable laws. More than 60 

dump sites exist on the two islands. There are two open 

landfills and two vehicle dump yards that require immediate 

closure and remediation. At the time these dumps were 

established and used by the National Marine Fishery Service 

they did not meet standards presently applicable. In certain 

instances the open dumps threatened the health, safety and 

welfare on the islands. 

(19653-000I/DA942070.055] -4- 7/27/94 
69 

My clients ask that S. 720 be amended in three respects. 

One we believe that the lands and entities which were the 

subject matter of the Fur Seal Act Amendments of 1983, 16 

u.s.c. § 115 et .§mL_, be included as the term "Indian Land" is 

defined in section 3(3) of the Act; and be included as an 

"Indian Tribal Government" defined in section 3(4) of the Act. 

These two amendments would allow the Aleut Natives of st. 

Paul and st. George Island to be treated equally with other 

native people who face the costs and environmental threats to 

their health and safety because of the actions of the United 

States Government in Indian country. 

While the Pribilofs are a unique situation, they are 

analogous to reservations in the Lower 48. Both islands were 

reservations, were operated for the benefit of the United 

states Government, that operation included the creation and 

use of open dump sites, and the Aleut people on the islands 

are now being required to pay for cleaning up and closing 

these dump sites pursuant to the more stringent laws 

applicable to today's situation. 

My clients additionally ask that this Subcommittee amend 

S. 720 to clarify the legislative authority for the National 

Oceanic and Atmospheric Administration (NOAA) to carry out 

cleanup activities on the Pribilofs. NOAA has raised 

questions about its authority to contract for cleanup of 

(19653-0001 /0A942070.055) -5- 1121194 
70 

debris, dump sites, contaminates, and hazardous facilities and 

conditions which were left on the Pribilofs by NOAA. In 

addition, NOAA requires competitive bidding pursuant to 

general laws and has taken the position that they cannot allow 

noncompetitive or reimbursable contracts by the Aleut people 

who live on the island. We thus find a situation where the 

Aleut Natives watch people brought in from other communities 

carry out the cleanup work which the Aleut residents are 

capable of doing. Through the Fur Seal Act Amendments, 

Congress intended that the Aleuts be the beneficiaries of 

economic opportunities on the islands, but that intent needs 

to be clarified in this situation. 

My clients believe that the amendments we request are 

consistent with the intent of s. 720 and will ensure that the 

Aleut Natives on the Pribilofs receive the same treatment as 

Indian Tribal Governments and Reservations in Indian country. 

Thank you very much for your consideration and we will 

submit to the Committee's staff proposed statutory language 

and hope you will favorably consider the situation on the 

Pribilofs. 

[196SJ.0001/DA942070.0SS] -6- 7/27/94 
71 

Mr. RICHARDSON. Mr. Bowechop? 

STATEMENT OF G. CHAD BOWECHOP 

Mr. BOWECHOP. Thank you. 

I would like to read some of the prepared text. 

Mr. Chairman and distinguished committee members I would 

like to thank you for the opportunity to be here today and provide 

testimony on S. 720 on behalf of the Makah Tribal Council. My 

name is Chad Bowechop. I am a Makah tribal member and have 

resided on the Makah Indian Reservation most of my life. The Makah Tribal Council has identified the closure of the tribal 

open dump site as the number one environmental priority. In addressing this issue the Makah Tribe recognizes the problem as twofold. First, identifying funding and technical assistance to close our 

existing open dump; and, second, development and implementation 

of solutions to handle the present and future waste stream. 

Approximately 2 years ago the Makah Tribal Council was advised that continued operation of the open dump on the Makah Indian Reservation would not be permitted after October of 1993 

without complying with the requirements of Subtitle D of the Resource Recovery and Conservation Act. This date was then extended to April of 1994. 

The Makah Tribal Council has taken a series of actions to deal 

with this problem, including contacting the Indian Health Service, 

the Bureau of Indian Affairs, and the Environmental Protection 

Agency. 

We first contacted the Indian Health Service requesting financial 

and technical assistance to address our solid waste issue. Our request was denied. Although acknowledged by the Indian Health 

Service that a solid waste problem did exist, it did not meet their 

funding priority criteria. The Indian Health Service funding criteria addresses safe drinking water and sewerage treatment 

projects ahead of solid waste. Having experienced no success in identifying a funding source 

from Indian Health to address our tribe's open dump closure issue, 

we contacted the BIA to assist in funding our open dump closure 

issue. At the same time we approached EPA for funding and they 

have provided a portion of the funds necessary to conduct an engineering study to fully develop our closure plan. 

The EPA Solid Waste Coordinator in Region X suggested we 

apply to the Solid Waste Network for technical assistance. The 

Solid Waste Network is a cooperative entity between four Federal 

agencies-the Indian Health, the Environmental Protection Agency, the Bureau of Indian Affairs, and Housing and Urban Development. 

The premise of this cooperative effort of the Solid Waste Network 

is to assist tribes in developing a tribally specific solid waste management plan by incorporating the various agencies' services and 

technical expertise. 

The Solid Waste Network is coordinated by EPA and as employed has allowed the Makah Tribe to develop a model work plan 

for design specifications for closure of our dump site along with development of a near complete integrated solid waste management 

plan. 
72 

At this point in time the Makah Tribe is in the process of negotiating a contract with a Seattle-based engineering firm to address 

an engineering survey, a geotechnical investigation and a waste 

consolidation design through funds secured by the BIA and the 

EPA. 

The total cost for a complete study will require the tribe to identify approximately $200,000 in additional funding, depending on 

the outcome of toxic waste and geotechnical studies. Once the engineering study is complete, the closure plan for an open dump can 

be finalized. 

One interesting fact is that many Federal entities have used this 

open dump, including Indian Health, U.S. Fish and Wildlife, the 

FAA, the U.S. Coast Guard, the U.S. Air Force, the Bureau of Indian Affairs. Only the BIA, after our Tribal Council aggressively 

sought assistance, has offered any help in closing this facility. 

A preliminary engineering study has placed the cost of closure of 

our open dump at a minimum of $2 million and possibly as much 

as $4 million. We simply don't have the funds to close our open 

dump. 

The principal economic activities on our reservation have been 

fishing and forestry for the past 50 years. In the past 4 years, our 

fishing income has dropped by 75 percent, our forestry income by 

50 percent. Now, we are faced with landfill closures of several million dollars which we simply cannot afford. 

Even more significant, dealing with a solid waste stream in the 

future may cost substantially more than present disposal methods. 

We have explored nearly every known solid waste disposal method 

to deal with our solid waste stream. 

We are developing an integrated solid waste disposal plan which 

will include as many of the following components as possible: 

source reduction, material reutilization, recycling, and incineration 

and landfill. However, our geographic isolation is extreme. The 

nearest permitted landfill is 75 miles east of our reservation in 

Port Angeles, Washington, and is due to close within 5 years. Tipping fees are $62 per ton and could easily increase to $80 within 

2 or 3 years. 

Once the permitted landfill in Port Angeles closes, the nearest 

permitted landfill to take our waste will be in eastern Washington, 

approximately 300 miles from our reservation. Our total disposal 

cost will increase from approximately $100,000 today to nearly 

$200,000 next year. 

Once the Port Angeles permitted landfill closes within 5 years 

the costs will likely go over $300,000 or $58 per household. We sincerely hope our integrated solid waste management plan will reduce our waste stream substantially, reduce the costs, since neither 

our tribal government nor individual members can afford to pay 

disposal costs of this magnitude. We fear illegal dumping will occur 

on a large scale if these costs reach the level indicated by our studies. 

Assistance from Indian Health for costs incurred by the tribe and 

tribal members as necessary to meet the Federal Government's 

trust responsibility. Indian communities nationwide in isolated locations will be facing similar cost increases at a time when eco-
73 

nomic conditions for many tribes is the least favorable in many 

years. 

The Makah Tribal Council recognizes the need for the Indian 

Health Service to be provided the authority and resources to respond to requests from tribal governments for assistance in conducting inventories and assessments of open dump sites as well as 

the procedural developments of closure and post-closure maintenance plans. 

Additional funding is critical to allow tribal governments the 

ability to adhere to RCRA subtitle D requirements and to respond 

to the findings of the Blue Legs v. EPA. 

In view of RCRA subtitleD requirements and the tremendous financial burden the requirements place on tribes, the Makah Tribal 

Council has concerns in regards for our tribe's inability to obtain 

treatment as State status. Treatment of State status of RCRA programs would allow tribes primary enforcement responsibilities of 

solid waste programs and projects, thereby allowing tribes to receive direct funding allocations. 

It is our observation unless tribes are able to address congressional environmental mandates through tribal environmental capacity building efforts, long-term solutions will not be realized and 

Federal trust responsibility will only be partially served. 

The Makah Tribal Council further recognizes the critical need 

this bill addresses in view of the presently implemented RCRA 

landfill closure schedule. We would suggest increased funding levels in the Congressional Budget Office cost estimates in 1995 and 

1996, and acceleration of the closure appropriation schedule. 

We would also suggest language for a specific appropriation and 

a specific amount to be authorized and inserted in this bill. 

The Makah Tribal Council would like to thank the subcommittee 

for holding this hearing on S. 720. The Makah Tribal Council also 

recognizes S. 720 as an initial critical step towards solving tribal 

environmental waste issues and supports passage of the bill. 

Thank you. 

Mr. RICHARDSON. Thank you very much. 

[Prepared statement of Mr. Bowechop follows:] 
74 

TESTIMONY OF THE MAKAH TRIBAIJ. COUNCIL BEFORE THE 

U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON NATURAL 

RESOURCES, SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS. 

TESTIMONY GIVEN BY G. CHAD BOWECHOP, 

ENVIRONMENTAL PLANNER 

1NIJlODUCI10N 

Mr. Chairman and distinguished committee members. I would like to th11nk 

you for the opportunity to be here today to provide testimony on the S.720 bill on behatr 

or the Makah Tribal Council. My name Is Chad Bowechop and I am a Makul• Tribal 

Member and ha•·e resided on the Makah Indian Resel"\·atlon most of my life. The 

Makah Tribal Council has ldentiOed the closure of the Tribal open dump site as the 

number one environmental priority. In addressing this b•ue, the M .. koh Tribe 

recognizes the problem as a two fold process. Flrst, Identifying funding and technical 

AssistAnce to dose our existing op~n dump •nd second, dcvclopm~nt and lntplcmentattou 

of solutions tu handle the present and future WilSie stream. 

BACKGROUND 

Approximately two }'ears ago, the Makah Tribal Council wu; .. ,h'ls<><l I hoot 

continued operation of the open dump on the Makah Indian R~servatlon ,.ould not be 

permitted alter Octob~r of 11193 without compl}1ng \\1lh the requirement< or SuLtitlc D 

of the Resource Recovery and Conservation Act (RCRA). This dult was then e~t~nded 
75 

to April or 1994. Thr Makah Tribal Council has taken a series of adlons to deal with 

this problem Including contacting the Indian Health Sen lee, the Bureau of Indian 

Arralrs and the Envlronn1ental l'rotecllon Agrncy. We First contacted the Indian llenlllo 

Sen-Ice requesting financial and technical asslstDnce to address OUI' solid WHsle Issue. 

Our request »as denied. Although acknowledged by the Indian Health Sen·ice that a 

solid waste problem did exist, It did not meet their funding priori!) crlt~lia. The IllS 

funding criteria address safe drinking water and sewer treatment projects ahead of solid 

wa•te Issues. 

llavlng experienced no success In ldentlrylng a funding source from IllS to 

address our Tribe's open dump closure Issue, we contacted the RIA to a.slst In funding 

our open dump closure Issue. At the same time we approached EPA fo•· funding and 

they hnl'C provided a portion of the funds necessary to conduct an Englne<'ring Study to 

fully denlop our closure plan. The EPA Solid Waste Coordinator iu Rocginn X suggested 

we apply to the Solid Waste Network for technical assistance. The Solid \'Vaste Neh•·ork 

is R coopet·allve errort between four federal agencies: Indian Health S"n ice, 

Envlmnmenlal Protection Agency, Bu•·eau of Indian Arralrs und llou>lug and Urban 

Development. The premise of this coope•·atlve errort of the Solid Waste N<h"" k 1> to 

assist tribes In developing a tribally sp<'Clftr solid wast .. management plan by 

incorporating the various agency services and technical e>:JlCI'IIMo. The Sulid Waste 

Nelwork Is coordinated by El'A and has allowed the Mokah Tribe to develop Ill\' Model 

Work l'lan for design plan~ and §pcdOcation for closure of onr du111p sl:e along with 

dn·elopment of a near complete Integrated &oJid wash.: nuu•ag"-mcul vlau. 
76 

AI this point In time, the Makah Tribe Is In the process or negollallng a 

ronll·ert with a Seallle based engineering nrm to llddrcss an eroalnu·riug SUI~ ), .. 

g~otedmlcal lnvesllgallon and a w11str consolidation design thr<>ugh ftuods sN r~d frono 

tht• 81.'\ omd EPA. The total rnst for o romplcte study will requll'e lit< Trlt.~ lu ldwtll'y 

epproxlmotely $2.00,000 In additional funding dcp~ndlilg ''" the outcome of loxk waste 

And geotechnical studies. 

Onre the cnglnerrlnat study Is completed, the closure plan roo uuo uvcu dutn(l can 

be nnallzrd. One lnlt>re.<llng fact Is that many federal entitles han U><d Ibis open 

dump Including: IllS, U.S. Fish and Wildlife Se,...lce, F.A.A., U.S. Coast Guard, U.S. Air 

Force, llnd Bureau of Indian Aflairs. Only the BIA, after our Tribal Council 

aggressively sought assl•tance, hu offered any help In closing this facility. A 

prdlmlnary• engineering study hRS plared the cost of closure \If oui ""''" dump at u 

minimum of $2 million and possibly as much ns $4 million. We simply do n<>t h"' ~ 

fund! to closing thr. oprn dump. The a.wlndpal u :onomlc nc1h itl rs OJt vw a ~c l\ allou 

h• ~ been fishing •nd fortstry· for the past 50 )ears. In the past 4 ;cat~ our n~hlug 

Income has dropped hy 75% and forestry lnromr b)' SO% In the J>nsl t\\·o y<ors. Nuw ,. .• 

an• rllrrd wtlh landnll dosurt- costs of SC\'tral million doJiari \1\·hi( h " ·..:- t·annol fund (.-om 

trlbal resources .. 

E,·en mort slgntncant, denting with solid waste sh·tam In llo~ futtot-.: "'"} wsl 

substantially more thom present disposal methods. Wt· ha,•c explored llcarly '"''''J 

known solid waste disposal method to deal with our solid was.te sino""'· We &o ·c 

developing an Integrated solid WilSie disposal plan which "Ill lnclllllc us '"""Y of lht· 

rollowing C'nmponents as pos:slhlr-: source r~duclion, material reutlll.t.;,f11HI, rt:t:ydlug, 
77 

Incineration and landfill. Hown•er, our geographic lsolallon Is tUr~me. The neare•l 

permlttt•d landfill Is 75 miles cast of our re•ervatlon iu Port Angd.s •md Is due to clos.: 

within 5 yean. Tipping fees are $62 per ton and could easily Increase to $80 ,.;thin two 

or three years. Once the permitted landfill in Port Angeles dosts, the ucarcsl permitted 

lnndfill to take our wastr will be In Eastern Washington, approxlmatdy 300 miles from 

our reservutlon. Our total disposal costs will Increase l'rom about $100,000 today to 

ubuul $190,000 next year. Once tht Port Angeles permitted landfill dos~$ ,.11hln 5 

years, this cost will likely go to over $300,000 or $58 per month per bvusehold. We 

sincerely hope our lntcgrsled solid waste management plan will reduce uur waste strenm 

•ubstanllally und redurr these rc.sts, since ntither our Ttlb;d Go,·crmncnt nnr lndh·ldunl 

members cun afford to pay disposal costs or this magnitude. We rea•· lllc·gal dumping 

will occur on a large scolc It these costs reach the le•ds lndlc•il~d IIJ , .,,. studies. 

Assistance from IUS for costs Incurred by Tribes and Tribal Members I~ nercssary to 

meet the Federal Goverr.ment's Trust R~sponslbllity . liidhm tomtuunltlc;; nallomo·Jdc In 

Isolated locations will b~ facing similar cost Increases at a time when ~<onomlt 

conditions for many Tribes Is the least favorable In many years. 

The Mal:ah Tribal Coundl r<~ognizcs the need fur the India;; fl<·nlth ScrYice to 

be pro,·lded tht' JUJihorJt}' auLI l'c\:ourcrs to respond to rtqm:s:l.s. ta -o;oo Tt·lbtd gu"·enuncnls 

for assistance In conducting Inventories and asscssm~nts of o~n dumf> situ us well as 

I he prol"eduntl develupmcnt of closure and pOSI closure mahlteuanL(: plmas. ,\ddltl~ouUI 

funding Is critical to nllow Tribal governmenli th~ ability tu r.di•Lrc ~o u.~ RCRA 

Subt!llc "D" requirements and respond w the fi•aJio~: • .-.f the HJ,tm LF.GS "· I:I'A 867 

1'. 2d 10114 (lllh Clr. 1!18!1) caoe. 
78 

In view of RCR.\ Subtitle D requirements ~nd the t.·emeuJvu• naa~ocl:.l burden 

tht requlrrments plare c.n trlb~s , the ~lakah Tribal C,·huh:iJ ha.i co. .... ·,. i•b in ~.ud:; lo 

our Tribe's Inability to cbtnln treatment as statt (TAS) slOt•••- TAS •tah•• of RCJV, 

programS, WIIUid BIIIIW tribes' primary enforcrmrnl re<pull&ibilitics f;,.· >Oil<l W>o•k 

programs and projects, tl.~rehy, nllo,.1ng tribes tu rcc•ln dtrut fomJh•g 1\llocatlons. II 

Is uUI" ub><:n·allon thut unless tribes arc able to uddr•ss con~:re~;lor ... l cnvtronnu·ul:ol 

mandates thmugh Trlhal en•·lronmcntal capadty buthlhlj; effort~, lon~; l<'l'lil ~olullons 

"ill not be rwllud and fcdcn;.l trust .-esponslblllly "111 only be pa11t.lll} <.-o ·•·<d. Tht 

1\tukah Tribal Council l\1rthtr remgnlzes the rrlllcal need tills bill :oddr.·••"· In •1~ ... of 

the presenlly Implemented RCRA landnll closure schHinle, we wm1ld sugg•·st lnne .. sed 

funding levels In the Cou~nsslouul Budget Office Co;! Estimate In 19'>5 & 1996 and 

ucccle.-utlun of the dosucc appropriutlon schedule. w. would i>lsc. su~gbl languag<· ror 

11 •pcclftc ~tppropriatlon and a •p.rlnc amount to b~ authorlud anJ llo>rrted h, this hill. 

CONCLUSION 

The Msokal; Triloal Council "·uuld like to thank the oubco""''lllec ror holding 

this hcurlng on S.720. The 1\,fakub Trlhol Council ul~a rc ugnlze~ S. 720 as " Initial , 

but critical step towards solving trlhol cnvlrunmclllal >nlld Wb s h· ls.m·; and support the 

pasoage of the bill >Oilh suggested amendmento. 
79 

Mr. RICHARDSON. Mr. Winder, you mentioned in your testimony 

that only 38 percent of the tribes responding to your survey exercise regulatory authority over solid waste. How many tribes have 

developed their own comprehensive solid waste management plans 

for their reservations? 

Mr. WINDER. Unfortunately, that is a number that I have no idea 

as to how many tribes have developed comprehensive solid waste 

management plans, so it would just be a guess. 

Mr. RICHARDSON. What would be your guess? 

Mr. WINDER. My guess would probably be, and it is really a 

guesstimate, there can't be more than 30 or so tribes throughout 

the country that have developed--

Mr. RICHARDSON. That have a plan? 

Mr. WINDER. That have plans in place. 

Mr. RICHARDSON. Now, Chairman Whitefeather, how many of the 

dumps located on your reservation were Federally constructed or 

have had waste from Federal agencies disposed in them? 

Mr. WHITEFEATHER. Our understanding is that the current landfills-well, what we call landfills are open dump sites-were sited 

by the Indian Health Service back 30 or 40 years ago. That is our 

understanding. 

Mr. RICHARDSON. What is the estimated total cost to close the 

three municipal landfills that are located on your reservation? 

Mr. WHITEFEATHER. Our initial estimate is in the area of 

$435,000, Mr. Chairman. 

Mr. RICHARDSON. And what is your timetable for their closure? 

Mr. WHITEFEATHER. I believe the lady next to me here said that 

October 1995 is the newly extended deadline for the closure of unapproved landfills. 

Mr. RICHARDSON. Regarding the post-closure maintenance for 

these facilities, there would have to be some fund for that, right? 

Mr. WHITEFEATHER. Well, yes. That is one of the things that we 

are hoping for, to obtain some funding for whether it be through 

Indian Health Service with the help of this subcommittee or 

through some funding from the Environmental Protection Agency 

to do the post-closure. 

Mr. RICHARDSON. Ms. Hoskie, you do support the initiative of a 

10-year plan to address solid waste management plans of tribes? 

Do you support that we put that in the new bill? 

Ms. HOSKIE. The 10-year plan? 

Mr. RICHARDSON. Yes. To set up a 10-year plan for tribes to develop solid waste management plans. 

Ms. HOSKIE. Yes, I do. 

Mr. RICHARDSON. You have one, don't you? 

Ms. HOSKIE. Yes. 

Mr. RICHARDSON. Does the Navajo Nation? 

Ms. HOSKIE. Yes. We have our own solid waste management 

plan. 

Mr. RICHARDSON. Would you tell us a little bit about it? How 

would you do it? Is there a timetable? Are there any unique circumstances that you would like to share with everyone since you 

have been doing it? What are the bigger problems? 

Ms. HOSKIE. Sure. Our plan focuses on the placement of transfer 

stations, which are temporary storage facilities that are con-
80 

structed in each of the 110 local governing units called chapters on 

the Navajo Nation. 

To date, we have constructed 22 of these transfer stations and 

have located them strategically where multi-chapters or a consortium of chapters can use them. But the idea long term is to have 

one at each chapter, and certainly one where there is a major population center like in Shiprock, New Mexico, Crown Point, New Mexico, and so on. 

The other plan that we have is to build two or three regional 

landfills that comply with RCRA subtitle D. Currently the 22 

transfer stations that I mentioned are hauling, are transporting the 

solid waste off the reservation to certified landfills. 

We are also placing bins in the remote chapters that are not easily accessible, like Navajo Mountain up near Page, some of the 

other smaller chapters can also get by with bins that are placed by 

private contractors and then they are picked up on a weekly or a 

monthly basis. That seems to be working as an interim measure. So, in those locations we are planning to close the open dumps. 

The long-term goal is to develop a landfill, like I said, two or three 

landfills. The design and feasibility studies for those are very costly, and we are probably about one year away from developing the 

first landfill in Tuba City. 

Mr. RICHARDSON. When you talk about the situation in Alaska, 

do we know what kind of waste was disposed at these facilities? Is 

it mainly hazardous waste or what kind is it? 

Mr. YOUNG. Mr. Chairman, on the Pribilofs we have been able 

to do an assessment and it is not mostly hazardous. It is the same 

kind of waste that you would find on any other reservation as a 

result of the government operating those two islands. Hazardous waste presents an entirely different situation where 

you get into Superfund and all the rest of those things. 

Mr. RICHARDSON. Now, the same question I asked Chairman 

Whitefeather. How many of the landfills were Federally constructed? 

Mr. SMITH. They all were, Mr. Chairman. They were all part of 

the operation of the Pribilofs for sealing. 

Mr. RICHARDSON. Is it Federal waste? 

Mr. SMITH. It is Federal waste. It was put there by the Federal 

Government. In 1983 when the government decided to phase out 

sealing, they transferred the lands to the tribal entities and the 

other entities on the island, and to the Aleut people, and with that 

went the burden of these open dump sites and others that violate 

the present rules. 

Mr. RICHARDSON. Now, in dealing with the Alaska issue, their inclusion, if we just say ANCSA lands, is that sufficient or is there 

a more inclusive term? 

Mr. SMITH. We need to also haveS. 720 applicable to the entities 

under the Fur Seal Amendments of 1983 because it was a separate 

situation, and the ANCSA language, while helpful, doesn't get 

there. You still have gaps in authority. 

Mr. RICHARDSON. Well, I think you need to work with us, and 

Mr. Young to make sure we have an all-inclusive term, and we will 

defer to you on that. I just want to make sure that there is no loophole where they are not included. 
81 

Mr. Bowechop, you talked about the Solid Waste Network-this 

is the IHS, BIA, HUD-that is being tried out in some regions of 

the country. Is it only done in the Northwest or is it a national 

plan? 

Mr. BOWECHOP. To my knowledge, I believe it is regions VIII, IX 

and X, although I am not clear on that. I know in Region X we 

have done well with it. 

Mr. RICHARDSON. Have they helped you? 

Mr. BowECHOP. They have helped us to a large degree. Without 

the cooperative efforts from the network, we wouldn't be as far 

along in our effort towards developing a solid waste management 

plan. 

Mr. RICHARDSON. So they have been helpful then? 

Mr. BOWECHOP. Absolutely, yes. 

Mr. RICHARDSON. Have they given you any financial assistance? 

Mr. BOWECHOP. Yes. The Environmental Protection Agency and 

the BIA have both funded us. 

Mr. RICHARDSON. Now, regarding the legislation on the demonstration projects, would you be able to benefit from that? Would 

the Makah Indian Tribe be eligible under the criteria that we have 

set forth? 

Mr. BOWECHOP. Yes. We would benefit greatly from it, although 

we do have concerns that in view of the RCRA regulations that the 

timetable should be accelerated. 

Mr. RICHARDSON. Well, you should also follow and work with us 

on the Superfund legislation. I have language in the Superfund bill 

in committee that is inclusive of tribes under these Superfund programs. We need to expand that language as we move the bill to the 

floor, if we do this year. 

The staff is working on that. Counsel over here is working on a 

comprehensive Indian amendment, and what we want to do is 

make sure, again, that these programs are inclusive, that tribes are 

eligible, that they can participate, they can receive some of the resources and technical expertise from EPA. 

I want to thank you, all of you. We have the Prime Minister of 

Israel and the King of Jordan on the House floor shortly and all 

members are required to attend. 

So this has been a very useful hearing. I want to thank all of 

you. Again, as we make the necessary charges to this bill, we need 

to work with you, so please stay in touch with us and Mr. Young. 

We look forward to seeing you again soon. 

This hearing is adjourned. 

[Whereupon, at 10:42 a.m., the subcommittee was adjourned.] 

APPENDIX 

JULY 26, 1994 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

COMMENTS OF THE 

CITY OF ST. GEORGE, ALASKA 

ON S. 720, BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

JULy 26, 1994 

The City of St. George, Alaska, the mtmicipal government on St. George Island, 

one of the Pribiloflslands, in the central Bering Sea. We are pleased to submit for the 

record our comments on S. 720 and, through our Washington Counsel William W. 

Gamer, hereby offer to assist you in enactment of amendments which will address one 

of the most serious environmental cleanup issues facing Native Americans and the 

wildlife resources of a Federal reservation .. 

From a Native American health and a wildlife conservation perspective, 

environmental contamination of the Pribilof Islands is a serious national concern. St. 

George is the smaller of the two islands geographically, having as well a smaller 

resident population of roughly 150, all Aleuts Natives. The bird cliffs on the Pribilof 

Islands of St. George and St. Paul are world class, and are managed by the U. S. Fish 

and Wildlife Service as a unit of the Alaska Maritime National Wildife Refuge. 

Similarly spectacular in the size of their concentrations, the Northern fur seal rookeries 

on these two islands are reserved from the public domain for management by NOAA 

We don't know of any location where Native Americans and wildlife are more 

threatened by Government caused environmental contamination than on the Pribilof 

Islands. 

The National Oceanic and Atmospheric Administration (NOAA), Department 

of Commerce, has undertaken a limited, multiyear cleanup of the Pribilof Islands, after 

phaseout of 120 years of Federally sponsored commercial fur sealing. The commercial 

fur sealing program began to wind down in 1983, pursuant to the Fur Seal Act 

Amendments of 1983 (FSAA), leaving every manner of debris, sanitary landfills, 

dumpsites, contaminants, and hazardous facilities and conditions one can imagine 

would be produced by a company town conducting animal processing and management 

operations. 

Land on St. George Island where NOAA recently found (25) sites contaminated 

Comments of City of St. George, Alaska, on S. 720, H. Subcomrn. on Native 

American Affairs, July 26, 1994 I 

(83) 
84 

by solid wastes, contaminants, and debris, have been conveyed to the Island-based 

Native, Tribal, and mtmicipal corporationsm mostly pursuant to the Transfer of 

Property Agreement (TOPA), incorporated into the Fur Seal Act. None was conveyed 

with any assurance by NOAA it would clean up its 120 years of mess, and the 

liabilities NOAA conveye_d to these corporations are now presenting costly bills. 

We are in a different position than St. PauL NOAA is now stirring itself and is 

funded to undertake considerable cleanup work on the Pribilof Islands in FY 1995, but 

is leaving St. George behind and has no present plan for significant expenditures on St. 

George Island. Secondly, the public health hazard from present and former landfills or 

dumps on St. George is serious and needs to be taken care of immediately. 

Passage of S. 720 presents the Congress with an opportunity to extend the 

public policies of the bill to a limited class of lands in Alaska, although some funding 

of cleanup of solid waste landfills and dumpsites on former federal lands is being 

provided to an agency other than IHS. The environmental and human implications for 

Native Americans of dumpsites and sanitary landfills are as or more serious than for 

any Reservation. Over 120 years of U.S profiteering in the fur trades, these were 

Federal "factory towns" using impressed labor of Native Americans [so 

undemocratically that the Aleut Natives of the Pribilof Islands won in the Court of 

Claims the only award ever levied against the Government under the "fair and 

honorable dealings" clause of the Indian Claims Commission Act). Consequently, the 

Federal contribution to and responsibility for these wastes and debris on the Pribilof 

Islands is possibly greater than for many dumpsites on lower '48 Indian Reservations, 

and the nature of the environmental contamination is more characteristic of industrial 

than human use. 

There is also presented by S. 720 an opportunity to direct and facilitate a more 

complete environmental restoration of the Pribilofs than NOAA thus far has been 

willing to assume responsibility for. The ability of the entities on St. George to 

underwrite coordination with NOAA, EPA, and the Alaska Department of 

Environmental Conservation, much less to share the costs of cleanup thrust on us by 

NOAA, are virtually nonexistent. Second, there are a variety of authorities afforded 

other agencies to deal with these types of problems at facilities now or formerly under 

their jurisdiction, and there is every public policy justification that NOAA should be 

granted these authorities. Third, cost reimbursement and preference contracting 

procedures are called for. We would be most appreciative of an opportunity to discuss 

2 
85 

with you possible amendments to S. 720 which clarify or extend to NOAA authorities 

afforded to other agencies which are intended to permit Federal agencies to reach 

contamination and hazards they pass to conveyancees of Federal facilities. 

Thank you for this opportunity to present our views on S. 720. 

3 
86 

TESTIMONY OF DARWIN ST.CLAIR 

CHAIRMAN, SHOSHONE BUSINESS COUNCIL 

ON BEHALF OF THE SHOSHONE INDIAN TRIBE 

WIND RIVER INDIAN RESERVATION 

BEFORE 

The SubeommlttH on Native American Affal111, 

of the Committee on Natural Reaources, 

United Stales House of Representatives 

Hearing on S. 720 

"Indian Linda Open Dump Cleanup Act of 1994' 

Tuesday, July 26, 1994 

Chainnan Rictlardson, members of the Subcommittee on Native American Affairs, 

my name is Darwin StClair. IIWTI Chairman of the Shoshone Business Council. On 

behalf of the Shoshone Indian Tribe of the Wind River Indian Reservation, IIWTI pleesed 

to submit testimony on S. 720, the "Indian Lands Open Dump Cleanup Act of 1994.' 

This bill is critical to restoring the integrity of the reservation environment and 

safeguarding the health and safety of reservation residents. 

As you well know, the issue of open dumps on Indian lands has be«t a grave 

concern throughout Indian country for many yeers. That concern has become even 

more pronounced since 1989 when the United States Court of Appeals for the Eighth 

Circuit, in Blue leQs v. Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), affirmed 

a decision that Indian tribes may be held liable under the Resource Conservation and 

Recovery Act ('RCRA") for cleaning up open dumps on their reservations. This decision 

was reached despite the fact that tribes have never been eligible to assume primary 

responsibility for RCRA enforcement on their reservations or to benefit from the bUiions 

of federal doll11111 spent to support state environmental progriWTIS, including RCRA 

progrlmS, ewer the last two decades. In the fallout of the Blue Leas decision, tribal 

governments now face enormous potential clean-up costs for hundreds of sites on 

reservations that might be considered open dumps under RCRA. 

In 1990, one study estimated that there were 650 solid waste sites nationwide on 

Indian reservations. This number included 1 08tribally-owned sites of which only two are 

in compliance with EPA guidelines. The study also indicated that the cte.~-up of the 1 06 

non-compllanl sites would 0051 about $68 million. Select Committee on Indian Affaits' 

Workshop on Solid Waste Disposal on Indian Lands. • 1 02d Cong., 2d Sess. 7 (Select 

Corrvn. Print 1991 ). Four years later, it is frustrating to realize that little has be«t done 

to improve this situation. Tribal gcwernments still lack the financial &Wld technical 

resources to tackle the problem independently, and Congress still has not given any of 

the relevant federal agencies charged with carrying out the trust duty to Indian tribes-
87 

BIA, EPA. and IHS-dear directives ana the money necessary to ensure immediate 

remediation of this situation. As a result, the Shoshone Indian Tribe strongly supports 

the intent and purposes of S. 720. 

This bill would call for an identification of open dumps on Indian lands and 

assessment of the hazards of open dumps. As originally introduced in 1993, S. 720 

would have required the Director of IHS to inventory and identify S!!! open dumps on 

Indian lands. However, § (4){a) of S. 720 now calls for an inventOIY of only those open 

dumps on each reservation whiCh are subject to tribal authority, and each tribe must 

trigger the inventory through a request. Tribal governments have repeatedly voiced their 

desire for federal assistance to address the solid waste crisis, yet again, the biU would 

ask them to jump through another hoop to obtain such help. Requiring each tribe to 

submit such a request for an inventory seems unnecessary when virtually every 

reservation will have some open dumps. This requirement surely will result in further 

delays because, while tribal requests would presumably be made to the Director of IHS, 

the bill falls to describe explicitly when, how, and to whom such requests would be 

made. Moreover, when a request is made, the bill fails to set a time limit on the 

completion of an inventory for a particular reservation. The bil also does not include any 

requirement regarding promulgation of regulations by the IHS governing this 

requirement. We therefore would urge this Subcommittee to give further thought to how 

the legislation would be implemented through the tribal request process. 

Once an inventory is complete, § 4(a)(2) of the bill would require the Director to 

determine the severity of the public health threat posed by each dump. Such 

determination, however, would be based upon existing Information available to the 

Director and tribe. Additional soli testing and water monitoring would be required only 

when the Director, in consultation with the tribal goverrvnant, determined that additional 

testing was necessary By limiting the use of common technological advances such as 

soil testing and water monitoring, it is highly questionable whether the Director could 

even make a reasonable determination that a dump did or did not pose a threat to 

human health. Accordingly, we ask that this limitation be removed. 

The bill also would provide badly needed financial and technical assistance to 

tribal governments for the closure of open dumps in compliance with applicable federal 

laws or tribal standards. While recognizing tribal sovereign powers to regulate the 

reservation environment, including waste disposal, the bill would require that, If dumps 

are closed under tribal law, such standards must be more stringent than the federal 

standards. We recommend that this language be amended to reflect that tribes also 

may close dumps under tribal laws at least as stringent as the federal standards. Rather 

than holding Indian tribes to a higher regulatory expectation than that imposed on states, 

Congress instead should focus on providing tribes with a level environmental playing 

field. That position also would be consistent with current federal Indian policy supporting 

tribal self-determination. 

2 
88 

Again, where the 1993 version would have required the closure of ail open dumps 

identified on the national inventory by the Director of IHS, § 4 of S. 720 now provides 

that the Director provide financial and technical asslstance to tribal governments. Tribes 

would be directly responsible for dosing such dumps and providing postclosure 

maintenance. Such assistance, however, would be subject to priorities set for each 

reservation by the Director of IHS based on the severity of the threat to public health 

posed by 'each open dump' and the availability of funds needed for closure and 

postclosure maintenance. Because tribes would be responsible for requesting an 

inventory and for closing and maintaining closed dumps, it seems only fair and 

consistent with the government-to-government relationship thai tribes also be responsible 

or at least share the responsibitity with the Director, for setting these reservation 

priorities. 

Section 5(b) of the bill would authorize demonstration projects involving three 

Indian tribes. The purpose of these projects would be to determine if unique cost factors 

exist in the cleanup and maintenance of open dumps on Indian lands and the need for 

advance closure planning. Demonstration projects clearly may serve useful purposes; 

however, the stated purposes of determining cost and closure planning needs sean 

broad and unfocused. This is particulsty so when the demonstration projects may be 

funded for only three years, yet post-closure maintenance may last ten times that period. 

The biD should be amended to clarify the purpose of the demonstration projects and to 

extend the duration of funding for the projects to cover more of the post-closure 

maintenance period. 

The definition of 'open dump' used in S. 720 is troubling. Although § 3(6) of S. 

720 uses the definition of 'solid waste' codified in RCRA, the bill employs a different 

definition of "open dump.· S. 720 defines 'open dump' as 'any facility or site where solid 

waste is being or has been routinely and regularly disposed of that has not been closed 

Q!: covered Q!: that does not meet the criteria for a new municipal solid waste landfiU unit 

prornulgaterl pursuant to the Solid Waste Disposal Act. • (Emphasis added). As a result. 

the bill nevertheless would classify an active solid waste facility or site that has not yet 

been closed, but which complies with the municipal solid waste landfill criteria as an 

'open dump. • Adoption of the RCRA definition of 'open dump• would remedy this flaw. 

The RCRA defines 'open dump' merely as 'any facility or site where solid waste is 

disposed of which is not a sanitary lllndlill which meets the criteria promulgated under 

section 6944 of this title and which is not a facility for disposal of hazardous waste.• 42 

U.S.C. § 6903(14). 

Finally, we have several concerns about the funding of the activities contemplated 

by S. 720. Section 6 of the bill now contains only a general authorization of •such sums 

as may be necessary to carry out this Act. • Since 1990, we know that at least $68 

mil~on is needed to address tribal solid waste disposal problems. Because no national 

inventory has ever been conducted, we cannot be sure that this figure is adequate or 

even in the ball park. Many in Indian country suspect this figure will fall far below the 

3 
89 

actual mark. However, it seems dear that Congress must take strong steps to address 

this crisis, including a firm commitment to authorize a set amount of funds for these 

purposes. 

Because the bill would place all responsibility for implementation in the hands of 

the Director of IHS, we also are concerned about the interplay between S. 720 and the 

Indian Health Care Improvement Act. Section 6 would limit funding of activities 

performed by the Director of IH5 to appropriations under 5. 720 and require that the 

Director coordinate these activities with other activities related to solid waste and 

sanitation funded under other authorizations. Presumably, this language refers to 

funding for tribal projects--drinking water and sanitation programs--under the Indian 

Health Care Improvement Act. However, we ask that this Subcommittee review the 

Indian Health Care Improvement Act to ensure that the Act includes solid waste issues. 

In addition, we ask this Subcommittee to analyze the Indian Health Care Improvement 

Act to ensure that it is capable of effective coordination with 5. 720, particularly in the 

area of funding, without jeopardizing the implementation of other tribal water and -

programs. 

Finally, the bill simply must be amended to provide for a moratorium against tribal 

liability under the citizens' suit provision of RCRA. Tribes have been looking down the 

barrel of the citizens' suit gun for years, despite the fact thet they never received any 

funding under RCRA for solid waste management and planning. Because of the federal 

government's neglect of solid waste issues on Indian lands, we are overrun with 

unauthorized dumps and even federally-constructed facilities that do not comply with the 

new RCRA landfill standards. Worse, we stiU have no safe and legal place to put our 

trash. It simply is not fair, especially when the BIA has found resources to dose its 

dump. We propose that, once a particular site has been identified by the Director, the 

tribe be immune from citizens' suit liability. Then these silas can be deaned up in due 

course under the provisions of 5 . 720. 

In conclusion, a crisis exists in Indian country with respect to solid waste. While 

we have made a number of recommendations on specific provisions, we strongly 

support the enactment of this bill because it should make great strides in addrassing this 

problem. Accordingly, the Shoshone Indian Tribe commends this Subcommittee for its 

continued work on this important piece of legislation. Should you need additional 

information from the Tribe, please do not hesitate to cal on me. Thank you. 

4 
UVINQOYut• 

c:.AT.IIliNI a.t.U:. ITITSOM 

SV5A.Jf M. WIWAMS• 

.:::::::~ P':!:.vt 

90 

GoVEit, STETSON & WlLLU.NS, P.C. A'I''I'O·JI·Y· AT LAW 

8&01 RIO Ga•JtDa Bous.av••o. N.W. 

AL•vouaaoua. Naw MRJUco 87to4·3R1t3 

T&L&JI'IIotQ (eOS) ....... . 

PAX caoa) ed·eo•• 

WAI.INOTOII' CWP1C8 

&&ae CUNIII&CT1CVT AYDNa • .._.~ suna aoo 

WA$81.-GTQN. D.C. 8000e 

teL&PaOIII.C~a) .. ' ·•••• PAX(aot)4a8• ... 4 

July 28. 1994 

'The Hononble 1111 Rldwdson. O.airmu 

Subcommittee oa N•iw: American Affain 

Committee oa Natural Reloun:cs 

AlTN: Sleoea Hedey 

U.S. HOUle ol ~Wives 

WuhinJioa, D.C. 20S 1.5-6201 

Dear Mr. O.airmUI: 

O.r1ea A_l,.ll"-'•• .JIUINII S. CASAUS 

L-1. ...;;,.,., •• .,... 

CAIIOI. AJOI aUAIRA 

"-" ......... " .. ,.. AHWI: S. DUIIAN 

CAaNINa.t.ltaLA 

J0 AMJI AltAGON 

AI ,ou may reall, our finn rcprcaenll tile Campo Band ol Mission lndi8no, wbose 

raetW1ioa illocaled in easaem S... Dlqo County, c.lifomia. Plale accept this k:aer a formal 

cocnment ..cl ICilimoay oa S. 720, the lndiaa l..andl Open Dump Oeanup 1\/:;t ol 1994, to be 

included in the record ol tile Subcommittee oa N~ American Affain hc:arin& on July 26, 1994. 

While we wholcbeartedly suppon lqislation that will improve tile environmental quality of Indian 

Country ud rault in the dean up of open dumps within lndiUI jurisdictions, we also believe t~ 

S. 720 approprilllely could be used as a vehicle to darify the status ollndian trilea u •• der Subtitle 

D of the Resoun:e Coruervation and Recovery Ac1 of 1976, as amended ("RCRA"). 

Under RCRA, the United Slales Environmental Protection AJency ("EPA") has 

promulpled rqulations f« the manaaement and opetatic!n of Municipal Solid Waste Landfdls 

("MSWU's").' Under this rqulatory ldleme, state solid waste facility permittina proarams. 

eoataininJ llalldank -' least u strinpt as tbe federal piddines, may reeeiw: EPA approval and 

the state enron:cmcnt aaency may rece!Ye primoc:y ror enron:emen1 of the 11U1dards.1 WhUe 

RCRA Uld tile MSWLF rqulations do not specifiCally authorize uibal proaram approval, the 

"Draft Slalc/l'ribal Implementation Rule" recenlly issued by EPA recopizes the authoriry and 

jurisdiction of tribes and establishes a framework for tnbal pro&ram approval under the MSWLF 

40 C. F. R. Pan 258. 

40 C.F.R. f 258.1; ~ lll!l Dnft State Trilallmplementation Rule, to be codified 

at 40 C.F.R. Pan 239. 
The Honorable Bill Richardson, Olainnaa 

July 28, 1994 

P~~~C2 

91 

rqulatlona. While both RCRA ud tbc MSWU: replatioal typically refer to "SWc Plans"' or 

"approwd IIWa,"'- believe lhM c.oaar- did aot illtc11d to limit pcrmittlna Proaram approval 

to utes. In f.a, S. 720 indicala IbM the bill's spoason - that tribes b-tbc authority to promulptc standards for the -aacmcnt ofiOiid wutc that 8J"C diltinc:t llld sepante from 

state requiremcats. H~. uadcr lbc pcnl dcfiaitions found In RCRA, lribcs 8R: 

diltlnpished from states. llld for IOIIIC pwposcs. JJIOil nocably fundinl for IOiid wute 

mauaacmcat plannina. trila 8J"C trc8led • mllllicipalitica.' We do not bdic¥c that these 

definitions can be used to limit tribal program approval. but do bdic:Ye that the lbsc:nc:e of 

specifiC slatutory authoriution may result in unn-.ylitiption. 

Curreotly two tribca 8J"C in the 11aa1 sup oflbc MSWLF permlttlna pf"OII"UII approval 

process: lbc OleJame RMr Siola TriJe IDd tbc Campo Bad of MlS1ioo lndius. The Campo 

prop-am has been tborouply ~by the EPA. praeated at a public bearina.llld praently 

is subject to a public c:omment period. AI lalsl 011C c:omment has raised a question rdatina to 

the appropriatcnc:a of EPA approvll of a llilal MSWLF pcrmillinl proaram md 81JUCI that, 

under RCRA. only stales have the riabt to dcvdop pcrmittlna proarams llld that those propams. 

of neceuity, will include jurisdiction ower Indian lands. The Campo Band lw been In the proceas 

of clc:wlopina CICODOIIIic resources that include the <:OIISirUCtioo ud operation of a commercial 

IOiid wute maaaaement fxility for the past ciabt ,an. Oae componcat of the frocility is to be 

a -italy landflll that fully complies with tbc feclcrll MSWLF requlrancats. The Buld has 

clc:wloped a .,.aero ofiOiid wutc IJliUICIIICIItlaws that DOl only have been found to comply with 

the fedcnl requirements, but also have been found fully equiYalent to corrapoadina California 

prc:wisioos by the appropriale California apc:iea. To allow the lbseDce of lpCICi& laupa&c 

aulborizina EPA approval of tribal pcrmittina Pf"OII"UIIS to Interfere with tribal dcvdopmeat ud 

muqement of environmental quality within Indian Country is unfair. 

This issue is not new. A ooneapondina 81JUment wu raised by the State of Wuhinaton 

under Subtitle C of RCRA.' In Wubincton Dcpamnent of Ecology. the Ninth Orcuit Coun 

of Appeals addn:acd the issue of state and feclcrll jurisdiction over Indian rcse1V81ions under 

RCRA. Tbc State of Washinaton submitted u application to the EPA for primacy under the 

hazardous wutc provisions of RCRA. indudina plus to replete the activities of all penons on 

Indian lands within the awe. The EPA disapproved tbc application with reapectto Indian lands, 

but approved the plm for the rat of lbc state. The state appealed the decision. The c:oun bdd 

42 U.S.C. t 6943-6947; 40 C.F.R. t 258.1. 

40 C.F.R. t 258.1. 

42 C.F.R. I 6903(13). 

State of Wubinctoo I>coartment o( Ecolocy y. Upitec! Sta!ea Eay!ronmental 

Proteq!op Aamcy, 7S2 F.2d 149S (9th Cir. 198S) (hereinafter "Washinaton Department of 

Ecology"). 
92 

The Honorable Bill Richardson, O.ainnan 

July 28, 1994 

Page 3 

that the EPA property refused to approve the program as it applied to Indian lands noting that, 

under well·setded principles of Indian law, "[sJiates arc generally precluded from exercising 

jurisdiction over Indians in Indian Country unless Congress has clearly expressed an intention to 

pennil it."1 Additionally, the court found that EPA's retention of environmental authority over 

Indian lands is consistent with the United States' trust responsibility to tnbcs.' In declining to 

subordinate tnbcs to stale authority under RCRA, the court further Slated that: 

(TJhe lnbal interest in managing the reservation environment and 

the federal policy of encouraging tnbcs to assume or at least share 

in management responsibility are controlling. We cannot say that 

RCRA clearly evinces a Congressional purpose to revise federal 

Indian policy or diminish the independence of Indian tnbcs .... 

We therefore conclude that EPA correctly interpreted RCRA in 

rejecting Washington's application to regulate all hazardous waste· 

related activities on Indian lands.' 

The question therefore becomes whether, absent specific authority, the EPA has the power 

ddegate authority for development of programs to tnbcs. Again, Washington Deoartmepl of 

~ provided guidance: 

10 

EPA has carried out the (federal( policy of sdf·determination in 

administering the various environmental statutes. For example, 

EPA promulgated regulations under RFRA (the Federal 

Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. I 7474(c)J 

authorizing lnbcs to develop their own programs for certification 

of pesticide applicators, at a time when the statute provided only 

that "slates" could submit certirK:ation plans. Similarly, EPA 

delegated to Indian tribes the authority to classify their reservations 

under the "Prevention of Significant Deterioration• standards of the 

Ocan Air Act, even though the Act did not specifically authorize 

such delegation .... Congress subsequently amended both statues 

expressly to permit tribal participation as set forth in the 

regulations. We cannot foreclose the possibility of similar 

developments under RCRA 10 

J.!l. at 1469·1470. 

1!!. at 1470. 

J.!l. at 1472 (citations omitted). 

!!!- at 1471 (citations omitted). 
The Honorable Bill Richardson, Chainnan 

July 28, 1994 

Page 4 

93 

Citing an earlier opinion, the court stated that, despite statutory language delegating primacy to 

states, the Oean Air Act "pennitted EPA to allow tnbes to set their own air quality goals on their 

reservations• and declined to subordinate "tribes to state authority."" 

To prevent litigation or issues similar to those raised in Wasbjn&ton Deoartment or 

Wl2&x and in consideration or the above nOied congressional actions amending FIFRA and the 

Ocan Air Act after EPA's promulgation or regulations allowing tnbal primacy, Subtitle D or 

RCRA now should be amended to authorize treatment or tribes as states. 

Because S. 720 contemplates development or tnbal standards ror operations or solid waste 

facilities that are at least as stringent as those promulgated by the EPA under RCRA." and 

because the bill establishes programs not available to non-Indian municipalities, this legislation 

is an appropriate vehicle to authorize treatment or tnbes as states the Resource Conservation and 

Recovery Act or 1979. We therefore recommend that S. 720 be amended to include a provision 

authorizing the EPA to treat Indian tnbes as states under Subtitle D or RCRA. As always. we 

appreciate your work on this issue. Please feel free to call if we can provide anything further. 

Sincerely, 

GOVER. STETSON & WJLUAMS, P.C. 

;:J..,, 

KG:ja 

II !J!. at 1412. 

12 S. 720, Section 3(1). 

0 

84-373 (100) 


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9 78016 1835