UNDERGROUND STORAGE TANKS AND OPEN 

DUMPS ON INDIAN RESERVATIONS 

OVERSIGHT HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

NATIVE AMERICili\' M-,FAIRS 

OF THE 

COlVIlVIITTEE ON 

NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 

ON 

ABANDONED AND LEAKING UNDERGROUND STORAGE TANKS AND 

OPEN DUMP SITES ON INDIAN RESERVATIONS 

83-781 

HEARING HELD IN WASHINGTON, DC 

OCTOBER 14, 1993 

Serial No. 103-50 

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, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-046077-8 
COMMI'ITEE 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, Calif01.;nia 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. IDNCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM F ARR, 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 

RICHARD MELTZER, General Counsel 

DANIEL VAL KlsH, Republican Staff Director 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

BILL RICHARDSON, New Mexico, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming, Ranking 

SAM GEJDENSON, Connecticut 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 

MARtE HOWARD, Professional Staff Member 

STEVEN J.W. HEELEY, Counsel 

JUNE LoRENW, Professional Staff Member 

BARBARA ROBLES, Clerk 

RICHARD HOUGHTON, Republican Counsel on Native American Affairs 

(II) 
CONTENTS 

Page 

Hearing held: October 14, 1993 .............................................................................. 1 

Background on underground storage tanks and open dumps . ... . .. ...... .... ... .. ...... .. 3 

Member statements: 

Hon. Eni F.H. Faleomavaega .......................................................................... 1 

Hon. Craig Thomas .................................................................... .... .................. 6 

Witness statements: 

Panel consisting of: 

David W. Ziegele, director, Office of Underground Storage Tanks, 

U.S. Environmental Protection Agency, accompanied by Bruce R. 

Weddle, director, Municipal and Industrial Solid Waste Division, 

Office of Solid Waste ... ....... ...... ... .. .... .............. .............. .......... .............. 7 

Patrick Hayes, director, Office of Trust Responsibilities, Bureau of 

Indian Affairs, Department of the Interior, accompanied by George 

Farris, chief, Division of Environmental Services ............................... 29 

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

of Environmental Health and Engineering, Indian Health Service, 

accompanied by Captain Rick Barrar, deputy chief, Sanitation Facilities Construction, and Commander Tom Crowe, chief, Environmental Health Services ......................................................................... 37 

Panel consisting of: 

Kevin Gover, Esq., on behalf of Hon. Jacob Viarrial, Governor, Pueblo 

of Pojoaque, Santa Fe, New Mexico ..................................................... 66 

Hon. Frank M. Paisano, Tribal Councilman, Pueblo of Sandia, 

Bernalillo, New Mexico, accompanied by Stephanie Poston, tribal 

planner.................................................................................................... 75 

David Coss, director, Environmental Protection Division, New Mexico 

Environment Department, accompanied by James Bearzi, chief, 

Underground Storage Tank Bureau..................................................... 88 

Sadie Hoskie, director, Environmental Protection Administration, 

Navajo Nation, Window Rock, Arizona ................................................ 100 

Franklin Ducheneaux, Esq., on behalf of the Leech Lake Tribal Council, Cass Lake, Minnesota ............... ...................................................... 114 

APPENDIX 

OCTOBER 14, 1993 

Additional material submitted for the hearing record from: 

Confederated Salish and Kootenai Tribes of the Flathead Nation: 

Prepared statement ................................................................................... 121 

(ill) 

ABANDONED AND LEAKING UNDERGROUND 

STORAGE TANKS AND OPEN DUMP SITES 

ON INDIAN RESERVATIONS 

THURSDAY, OCTOBER 14, 1993 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON NATURAL RESOURCES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:00 a.m. in Room 

2325, Rayburn House Office Building, Hon. Eni F.H. Faleomavaega 

[member of the subcommittee] presiding. 

Mr. FALEOMAVAEGA [presiding]. The committee will come to 

order. 

Chairman Richardson will be coming in a while. He is having a 

meeting right now with the leadership of the House. 

STATEMENT OF HON. ENI F.H. FALEOMAVAEGA 

Mr. FALEOMAVAEGA. Today, we will be hearing testimony on two 

pervasive environmental problems in Indian country, abandoned 

and leaking underground storage tanks and open dump sites. 

There are over 650 open dump sites on Indian lands. All but two 

of these sites do not comply with current Federal standards. In 

April 1994, when the new EPA regulations governing Federal landfills go into effect, only one of these sites will be in compliance with 

the new regulations. It is estimated that it will cost over $130 million to effectively close these sites or bring them into compliance. 

Over the 5·year period of 1985 through 1990, EPA has expended 

just over $2 million on Indian lands under RCRA. These funds 

must address the hazardous and solid waste problems of over 500 

Indian tribes and approximately 53 million acres of land. 

We can't allow the Federal Government to continue to stand idly 

by while Indian tribes' precious resources are being contaminated. 

Indian tribes are facing a wide variety of environmental problems 

ranging from leaking underground storage tanks to pesticides 

leaching into groundwater supplies from contaminated uranium 

mill tailings to open dumps on the reservations. We are specifically 

looking into the two most disturbing environmental problems facing Indian tribes today, although these and other issues warrant 

hearings as well. 

We will hear testimony from tribal witnesses about the environmental hazards caused by leaking underground storage tanks and 

their frustration in seeking Federal assistance in their attempts to 

clean up these facilities. They will testify about the failure of the 

(1) 
2 

BIA, the IHS, and the EPA to accept responsibility to assist the 

tribes in the cleanup of these facilities. Although the Bureau of Indian Affairs is the principal land manager of Indian lands and the 

Secretary of the Interior must approve all leases of Indian lands, 

the Bureau of Indian Affairs does little to afford protection to Indian lands. 

The Environmental Protection Agency is charged with regulating 

all underground storage tanks and provides assistance to the 

States to address problems related to underground storage tanks. 

However, EPA provides no assistance to Indian tribes to address 

the problems of leaking underground storage tanks. The Indian 

Health Service is responsible for related health care of Indians and 

provides technical assistance to tribes as needed. 

Today, we will hear from each of the three Federal agencies 

about their current efforts to address these issues, where they feel 

they need assistance, and how well the three agencies communicate 

and coordinate their activities. 

The scope of the problems with abandoned underground storage 

tanks as well as open dump sites needs to be determined. Tribes 

and the Federal Government do not appear to have reliable data 

as to how many underground storage tanks exist or how many 

open dumps are located on Indian lands. We do not know what 

other associated problems exist such as groundwater contamination 

from leaking underground storage tanks or leachate from open 

dumps. 

Numbers need to be developed on dump sites on Indian lands including those officially operated sites, those sites which are neighborhood dumping areas, and those sites where individuals illegally 

dump their trash. 

We will also hear from the State of New Mexico which has entered into a unique agreement with the Pueblo of Pojoaque to address the cleanup of underground storage tanks. I am greatly encouraged by the spirit of cooperation between the State of New 

Mexico and tribes to address a common problem. I look forward to 

hearing from the State representative and the tribes about how 

that situation is working out. 

In the interim, Chairman Richardson has introduced H.R. 1267, 

which is currently before the House Energy and Commerce Committee and, if enacted, will provide that Indian tribes be treated as 

States under the Resource Conservation and Recovery Act. Enactment of this legislation along with a clear understanding of who is 

responsible for these problems will go a long way to ensuring that 

underground storage tanks and open dump sites on Indian lands 

are cleaned up. 

[Background on this hearing follows:] 
3 

BACKGROUND FOR THE OCI'OBER 14TH OVERSIGHT HEARING 

ON ABANDONED AND LEAKING UNDERGROUND STORAGE TANKS 

AND OPEN DUMPS ON INDIAN LANDS 

The hearing will focus on two major problems for Indian tribes under the RCRA; 

abandoned and leaking underground storage tanks and open dumps sites on Indian 

reservations. 

Over the many years that Staws have received assistance from the Environmental 

Protection Agency (EPA), states have developed comprehensive environmental protection 

programs and have developed the regulatory capacity to directly administer federallydelegated programs under the Safe Drinking Water Act, the Oean Water Act, the Oean Air 

Act, and the Resource Conservation and Recovery Act (RCRA). Over this same period of 

time, Indian tribes were not eligible to receive assistance from the EPA to develop 

environmental protection programs on their reservations and to build tnbal environmental 

regulatory capacities. Over the last several years Congress has amended the Safe Drinking 

Water Act, the Oean Air Act, and the Oean Water Act to treat Indian tribes as states. This 

process allows Indian tnbes to receive program funds from the EPA to operate federally 

delegated environmental programs under the Safe Drinking Water Act, the Oean Air Act 

and the Qean Water Act. It allows Indian tnbes to assume primary planning, 

implementation, and enforcement responsibilities under these environmental statutes. 

Congress has yet to amend the Resource Conservation and Recovery Act to allow Indian 

tnbes to be treated as states. Under the provisions of RCRA, Indian tnbes are treated as 

municipalities. Therefore, Indian tnbes are precluded from receiving any program funds 

under RCRA and are unable to usc other sources of funding from EPA to carry out 

activities which woUld fall under the provisions of RCRA There has been very little 

assistance to Indian tnbes to address problems related to RCRA It has been reported that 

for the period of 1985 through 1990 EPA has expended the following amounts on Indian 

lands under RCRA: 

1985 -

1986 -

1987 -

1988 -

1989 

1990 -

$ 175,400 

$ 51,500 

$ 69,500 

s 162,500 

$ 519,000 

$1,125,500 

Total RCRA Expenditures 1985 - 1990 ....... $2,003,400 

Because of the lack of Federal assistance to Indian tnbes to address problems under 

RCRA, there are increasing numbers of serious environmental problems on Indian 

reservations. Without Federal assistance, most Indian tnbes do not have the necessary 

1 
4 

resources in place to combat these growing environmental concerns. 

IJability Questions 

Indian tnbes have looked to the Federal government to assist them in the 

development of tnbal environmental protection programs. The Federal agencies which have 

the most significant role in tribal 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 tnbes. The Bureau of Indian 

Affairs is the principle agency involved in the management of Indian lands. The Secretary 

of the Interior must approve any lease agreement involving Indian trust lands. In addition, 

Bureau of Indian Affairs is also responsible for certain business permits and licenses as well 

as conducting Environmental Impact Statements or Environmental Assessments under 

NEP A The Indian Health Services is respollSlble 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 respollSlbility to regulate 

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

Indian tnbes 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. 

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 Le&r v. Bureau of JndUlll 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 

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

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

intended to waive the Indian tnbe'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 rn:s on 

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

on the authority vested in the BlA and the lHS through the Snyder Act 2S 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 tnbal 

landfills. 

Solid Waste Dlsoosal 

Since the decision in Blue J...e&r, the Federal government has done very little to 

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

rn:s view their responsibilities as requiring them to provide financial assistance to Indian 

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

2 
5 

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

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

resources to address these serious environmental problems. 

There are over 650 open dumps located on Indian reservations. It bas been 

estimated that it will 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 when the new regulations governing Federal landfills go into effect only one 

landfill located on Indian lands will be in compliance. These regulations will become 

effective on April 9, 1994. 

Leaking Underground Storace Tanks 

There are many Indian tnbes who are now faced with the prospect of identifying and 

cleaning up abandoned or leaking underground storage tanks on their lands. Because Indian 

tnbes are treated as municipalities under the RCRA, they are not elig~ole for funds to clean 

up these leaking underground storage tanks. Because States do not have jurisdiction over 

Indian reservations, States will not provide financial assistance for the clean up of these 

tanks from the State trust funds. These trust funds are initially capitalized through Federal 

and State contnbutions. The State then assesses fees to gas stations and others to provide 

continuing revenues for these trust funds. Neither the BIA nor the IHS provide any 

financial assistance to Indian tnbes to clean up leaking underground storage tanks. Several 

Indian tnbes have reported that the EPA has taken the position that the Indian tnbc, as the 

owner of the land, is responstble for the leaking underground storage tanks on the 

reservation. This interpretation does not properly consider the roles of the Federal 

government as trustee over Indian lands. In fact, the Secretary of the Interior through the 

Bureau of the Indian Affairs, is directly respoiiSlole for the approval of any lease of Indian 

land. As part of the standard BIA lease agreement, there are provisions requiring surety 

and performance bonds as well as other types of security to ensure that the lands are 

returned to their original condition. Fmally, the BIA is the responsible agency for 

developing environmental assessments and environmental impact statements for Indian 

lands. Yet in most instances the BIA has failed to enforce these provisions and therefore 

tnbal lands are not protected from leaking underground storage tanks. 

3 
6 

Mr. F ALEOMA v AEGA. At this time I would like to enter into the 

record the prepared statement of the subcommittee's ranking minority member, Hon. Craig Thomas of Wyoming. 

[Prepared statement of Mr. Thomas follows:] 

PREPARED STATEMENT OF HoN. CRAIG THOMAS OF WYOMING 

Thank you Mr. Chainnan. 

I think that it is important that we have taken up this issue at this time. Open 

dumps and leaking storage facilities on Indian lands are not only simply an eyesore, 

but a source of possible contagion and toxic or other dangerous substances. They 

threaten the land, the water, and the people which surround them. 

The Chainnan will recall that we saw such a site when we visited the Wind River 

Indian Reservation in my home state of Wyoming in April of this year. An 

unmonitored open pit, it contained the smoldering remains of garbage, appliances, 

and even animal carcasses. While I believe that we need to explore ways to remedy this problem, I am also 

concerned about the imposition on the tribes of unfunded federal mandates. For ex- ample, the EPA has promulgated regulations requiring tribes to undergo expensive 

clean-up operations, but provides no mechanism by which the tribes can finance 

those operations. Of course, this is nothing new-the federal government is continually imposing similar unfunded mandates on cities and states all over the country. 

However, these mandates are particularly onerous on the tribes, which are significantly poorer than, and have few of the revenue raising capabilities of, most municipalities or county or state governments. 

I look forward to the testimony today, and hope that we will move towards addressing this problem in the near future. 

Thank you Mr. Chainnan. 

Mr. FALEOMAVAEGA. I would ask all witnesses to summarize 

their statements. The statements, of course, will be made part of 

the record, and it will be open for 2 weeks. At this time I ask unanimous consent that the background be made part of the record. 

We have as our first panel this morning, our lead witnesses, Mr. 

David Ziegele, director of the Office of Underground Storage Tanks, 

the U.S. Environmental Protection Agency, who is accompanied by 

Mr. Bruce Weddle; Mr. Patrick Hayes from the Bureau of Indian 

Affairs, the Department of the Interior, who is accompanied by Mr. 

George Farris; and Mr. Gary Hartz, director, Division of Environmental Health, Office of Environmental Health and Engineering, 

Indian Health Service, accompanied by Captain Rick Barrar, the 

Deputy Chief of Sanitation Facilities Construction, and Commander Tom Crowe, chief, Environmental Health Services. 

We have a number of witnesses this morning. So, could we have 

you gentlemen please come before the panel at this time? 

Mr. Ziegele, I think you have the opener this morning. Welcome 

to the committee. 

I welcome all of you gentlemen before the subcommittee this 

morning. Without objection, your statements will be made a part 

of the record, and we would like to give this opportunity now to Mr. 

Ziegele for his testimony. 
7 

PANEL CONSISTING OF DAVID W. ZIEGELE, DIRECTOR, OFFICE OF UNDERGROUND STORAGE TANKS, U.S. ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY BRUCE R. 

WEDDLE, DIRECTOR, MUNICIPAL AND INDUSTRIAL SOLID 

WASTE DIVISION, OFFICE OF SOLID WASTE; PATRICK 

HAYES, DIRECTOR, OFFICE OF TRUST RESPONSIBILITIES, 

BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY GEORGE FARRIS, CHIEF, DIVISION 

OF ENVIRONMENTAL SERVICES; AND, GARY J. HARTZ, DIRECTOR, DIVISION OF ENVIRONMENTAL HEALTH, OFFICE 

OF ENVIRONMENTAL HEALTH AND ENGINEERING, INDIAN 

HEALTH SERVICE, ACCOMPANIED BY CAPT. RICK BARRAR, 

DEPUTY CHIEF, SANITATION FACILITIES CONSTRUCTION, 

AND COMMANDER TOM CROWE, CHIEF, ENVIRONMENTAL 

HEALTH SERVICES 

STATEMENT OF DAVID W. ZIEGELE 

Mr. ZIEGELE. Thank you, sir. Good morning. 

I am David Ziegele, director of the Office of Underground Storage 

Tanks of the U.S. EPA With me is Bruce R. Weddle, acting director of the Office of Solid Waste at EPA 

I will first discuss the underground storage tank program on Indian reservations and will then focus on open dumps on Indian reservations. 

Of the 5 million underground tanks nationwide, approximately 

1.4 million are regulated under the Resource Conservation andRecovery Act, or RCRA. Of these, approximately 5,000 tanks are on 

Indian lands, and there are another approximately 2,000 underground tanks on Indian lands that are inactive or closed. Because 

ofthis huge universe of regulated tanks, EPA and, in fact, the Congress chose to have the program implemented mainly by the States 

and local agencies, except for Indian lands, where EPA is the implementing agency. 

The Leaking Underground Storage Tank Trust Fund, or LUST 

Trust Fund, provides the major source of funds for the part of the 

program addressing leaking tanks, both for EPA and State programs. RCRA defines Indian tribes as municipalities and not 

States, and therefore tribes are not eligible to receive LUST Trust 

Fund monies directly. 

RCRA also places responsibility for paying for cleanups on the 

person responsible for the leak, and the LUST Trust Fund can only 

be used for cleanups under very limited circumstances. 

Also, it is worth pointing out that grantees under the LUST 

Trust Fund, including tribes if they were eligible, could not use the 

LUST Trust Fund to clean up leaks where that grantee is the 

owner or operator. 

EPA regions have the lead in carrying out the program on Indian 

lands, and we give them flexibility in how they carry that out. My 

written testimony includes several examples of the approaches regions have used to carry out the program on Indian lands. 

There is tremendous variation among tribal nations in the approach that they would like EPA to take in working with them on 

underground tanks, and this presents one of several challenges we 

face in carrying out the program. Some tribes prefer to try to run 
8 

their own program. Others prefer to rely on EPA or reach an agreement with a State for program implementation or cleanup of particular sites. 

Another challenge is that abandoned tanks continue to pose potential environmental threats both on Indian lands as well as other 

parts of the country. Significant costs are involved in cleaning up 

sites and also upgrading or replacing tanks, which all owners have 

to do by 1998. 

Also, regarding helping tribes set up their own regulatory programs, frequently the small number of tanks on a given reservation 

makes it difficult to have a financially self-sustaining program. 

Turning to open dumps on Indian reservations, on October 9, 

1991, EPA issued criteria to assure that all municipal solid waste 

placed in landfills was disposed of in an environmentally safe manner. These criteria include location restrictions, operating requirements, design provisions to prevent groundwater contamination, 

groundwater monitoring and corrective action requirements, and 

closure, post-closure, and financial assurance requirements. 

For the closure requirements, proper closure of municipal solid 

waste landfills is necessary to prevent future public health and environmental problems. The criteria require that the site owner or 

operator install a final cover system designed to minimize infiltration and erosion. The cost to put a final cover on a landfill will vary 

from site to site, but for a landfill that would be typical of many 

open dumps on Indian lands, the cost would be approximately 

$50,000. 

The criteria do not apply to landfills that stopped receiving waste 

before October 9, 1991. Landfills that received waste after October 

9, 1991, but stopped receiving waste before the effective date are 

only required to comrly with the final cover requirements. The effective date for triba landfills is based on the volume of waste received and it ranges from October 1993, this month of this year, 

for the largest landfills to October 1995 for the smallest landfills 

located in dry areas of the country. 

RCRA requires States to develop and implement permit programs to ensure that municipal solid waste landfills comply with 

the revised Federal landfill criteria. While the statute does not address implementation on Indian lands, EPA's policy is to view the 

tribes as the key implementers of the program on tribal lands. 

EPA's role is limited to developing regulations and to approving 

adequate municipal solid waste landfill permit programs. 

EPA does not permit or inspect municipal solid waste landfills. 

In fact, the statute precludes EPA enforcement of landfill criteria 

except in those cases where EPA has formally deemed the State or 

tribal program to be inadequate. 

During the last few years, EPA has worked with tribes on a variety of projects related to waste management, all designed to meet 

tribal needs and RCRA program objectives. The written testimony 

describes several of these efforts. 

In conclusion, EPA is committed to protecting human health and 

the environment on tribal lands. We will continue to work with 

tribes by providing technical assistance, training, and, in the case 

of underground tanks, direct implementation activities on Indian 

lands. 
9 

For landfills, our goal is to enable tribes to make informed decisions concerning the kinds and level of environmental protection 

programs necessary for their circumstances. For underground 

tanks, we are committed to supporting tribally administered programs that can be operated with their own authorities and funding, 

working with tribal consortia and serving as a facilitator for development of tribal-State agreements as appropriate. 

This concludes my testimony. Mr. Weddle and I would be happy 

to answer any questions you or other members of the committee 

have. Thank you. 

Mr. FALEOMAVAEGA. Thank you, Mr. Ziegele. 

(Prepared statement of Mr. Ziegele follows:] 
10 

STATEMENT OF 

DAVID W. ZIEGELE 

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

OCTOBER 14, 1993 

Good morning, Mr. Chairman and members of the Subcommittee. I am 

David Ziegele, Director of the Office of Underground Storage Tanks of the U.S. 

Environmental Protection Agency (EPM. With me is Bruce R. Weddle, Director of 

EPA's Municipal and Industrial Solid Waste Division of the Office of Solid Waste. 

will first be discussing the underground storage tank program on Indian 

reservations and will then focus on open dumps on Indian reservations. 

LEAKING UNDERGROUND STORAGE TANKS 

Background 

As the result of increasing evidence of environmental and public health 

problems caused by leaking underground storage tanks, Congress enacted Subtitle 

I of the Resource Conservation and Recovery Act in 1984. This legislation gives 

EPA authority to regulate certain petroleum and hazardous substance tanks, but 

excludes a variety of tanks, such as heating oil tanks. Of the more than 5 million 

underground storage tanks lUSTs) nationwide, approximately 1.4 million fall within 

the EPA's regulated universe. Of those, approximately 4875 are found on Indian 
11 

- 2 -

reservations. In addition, approximately 1800 tanks on Indian reservations have 

been closed or have become inactive in the past five years. 

Given the extremely large size of the regulated universe, EPA realized that it 

could not effectively implement the program directly. The Agency decided that it 

would rely upon and help build state capacity to implement the UST program, 

except for tanks on Indian reservations which remain under EPA jurisdiction. When 

it enacted the legislation, Congress established a series of requirements that 

owners and operators had to fulfill. Tl ese included registering tanks, taking steps 

to prevent and detect releases, reporting and cleaning up releases, upgrading 

existing tanks, closing tanks properly, and obtaining financial assurance to ensure 

that owners and operators are able to pay the costs of corrective action and 

compensate third parties for injuries or damages resulting from the release of 

petroleum from USTs. I will focus today primarily on those requirements related to 

leaking underground storage tanks, with an emphasis on how the requirements are 

being implemented on Indian lands. 

All states and territories have ongoing underground storage tank programs. 

In recent years, the state workload has increased, as the number of confirmed 

releases from leaking tanks as risen dramatically and now amounts to over 

226,000 sites. States identify approximately 50,000 new releases each year. 

Responsible parties are taking the lead in cleaning up the sites in approximately 95 

percent of the cases. Of the 226,000 releases, remediation activity has begun at 

approximately 175,000 sites. Of those, remediation has been completed at 
12 

- 3 -

approximately 80,000 sites. In comparison, we know of approximately 530 

leaking sites on Indian reservations. Cleanups have been initiated at approximately 

385 sites of which about 130 have been cleaned up. 

leaking Underground Storage Tank Trust Fund 

In recognition of the need to provide a stronger funding base for the cleanup 

portion of the program. Congress created the Leaking Underground Storage Tank 

(LUST) Trust Fund in 1986. The LUST Trust Fund provides money for EPA to help 

administer the program. More importantly, it provides funds for states to 

implement the· cleanup program, take enforcement actions for leaking tanks, and, 

in the face of an imminent threat to public health or the environment, take the lead 

for cleanups when a responsible party cannot be found or is incapable of 

remediating the site. The vast majority, approximately 85 percent. of the LUST 

funds are awarded to states under formal cooperative agreements. As you know, 

Indian tribes are defined as municipalities--not states--by the Resource 

Conservation and Recovery Act !RCRA) and thus are not eligible to receive LUST 

Trust Fund monies directly. 

It also is important to note that persons responsible for leaks are not eligible 

grantees under the LUST Trust Fund. Further, where the Trust Fund is used, EPA 

or the state is obliged to pursue recovery of costs from the liable tank owner or 

operator if the responsible party is deemed financially capable of paying for the 

cleanup. While states receive the vast majority of LUST funds. they cannot use 
13 

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the funds to pay for cleanups where they are the responsible party. For example, 

if there was a leak at a state department of transportation facility, the state would 

have to use its own funds, rather than the LUST Trust Fund, to clean up that site. 

In the authorizing legislation, Congress established that the responsibility for 

cleaning up a site rests with the owner or operator of the UST. This requirement 

can cause confusion and problems that are relevant to leaking underground storage 

tanks on Indian reservations. A landowner, for example, who leases the property 

on which an underground storage tank is located also may be a potentially 

responsible party if a teak occurs. This is due in part to the fact that tanks may be 

' considered to be fixtures of real property. Thus, the property owner also may be 

considered to be the tank owner. In practice, the determination of tank ownership, 

and thus the potential liability, is very case-specific and can depend on a variety of 

factors. 

Cleanups can be expensive. If only soil has been polluted by a leak, the cost 

ranges from $10,000 to $125,000. If groundwater has been polluted, however, 

the range is much higher--$100,000 to $1 million. Realizing that tank owners and 

operators would find it difficult to meet the financial responsibility requirements 

and to pay for cleaning up leaks, many states have established state financial 

assurance funds. 

Forty-three states have legislation for state financial assurance funds, 

although funds vary in their nature, scope and coverage. Since states do not have 

jurisdiction over tanks on Indian reservations, many state funds do not pay for 
14 

- 5 -

cleanups on Indian reservations. In a few minutes, I will discuss jurisdictional 

issues related to state fund coverage of tanks on Indian lands. Some states, 

however, are making progress in extending coverage to tanks on Indian 

reservations. EPA is actively working with some states to expand coverage to 

tribes, in part because EPA does not have the authority to create a federal fund for 

tanks on Indian lands. 

Role of EPA Regions 

The vast majority, approximately 98 percent, of tanks on Indian lands are 

found in five EPA regions--5, 6, 8, 9, and 10. These regions generally encompass 

the upper-Midwest, Southwest, Rocky Mountain and Western portions of the 

country. EPA implements the UST program on Indian reservations out of the 

regional offices. EPA devotes the equivalent of 6 full-time staff to carry out the 

Indian portion of the program. In addition, Congress has been appropriating 

$600,000 of extramural funds annually, which EPA divides among the five regions. 

The regions spend these funds for a variety of activities, including providing 

technical support and· hiring contractors to enhance implementation of the UST 

program on Indian reservations. In FY 1994, we anticipate that five additional 

work years from contractors will supplement the efforts of EPA staff. Further, in 

recent years, the regions also have supported the program with about $125,000 of 

additional regional funds annually. 
15 

- 6 -

As we do with state programs, we have given the regions flexibility in how 

they implement the Indian program, and they have adopted approaches that are 

best suited to each region and particular tribal needs. A brief review of these 

approaches will illustrate how tht~ regions have developed programs that are 

tailored to the particular UST problems encountered on Indian lands in each region. 

Region 10 (Seattle), for example, has developed a strong working relationship with 

the Indian Health Service (IHSl. Through an interagency agreement with IHS, 

Region 10 utilizes a field representative, called a "circuit rider," to go to the 

reservations, provide technical assistance and outreach to tribes on leaking 

underground storage tanks, identify abandoned tanks, and help tank owners and 

operators come into compliance with EPA's regulations. The circuit rider began 

half time in January, 1990 and is now full time. 

Region 5 (Chicago) and Region 9 (San Francisco) are working more directly 

with individual tribes. Region 5 has entered into an interagency agreement with 

the Bureau of Indian Affairs to provide funds to the Minnesota Chippewa to 

develop an underground storage tank program focusing on leaking tanks. Region 5 

also has funded the University of Wisconsin Stevens-Point to provide technical 

assistance to tribes in Wisconsin. 

Region 9 has worked closely with and provided financial support to the 

Navajo Nation to establish an UST program. The Navajo Nation has more USTs 

than any other tribal nation in the country. This effort has funded one person full 

time in the Navajo Nation EPA since 1991. Region 9 also has used a circuit rider 
16 

- 7 -

since FY 1992. In addition, the region is using regional resources to secure 

technical expertise in reviewing site assessments and corrective action plans on 

Indian reservations. 

Region 8 (Denver) does a considerable amount of the UST work on 

reservations with its own staff. It also arranges for tribal members to receive 

training on UST issues. In addition, when the tribes and the states can reach 

mutual agreement to work together, Region 8 provides support to the state UST 

programs to work with tribes on site-specific corrective action problems. 

Region 6 (Dallas) has within its boundaries some 68 federally-recognized 

Indian tribes. The extent and diversity of the tribal presence in the region has led 

region 6 actively to encourage and assist in the development of tribal consortia. 

The region started to lay the groundwork for an Indian operated UST program with 

19 pueblos in New Mexico. Through the consortium and EPA, owners and 

operators have registered tanks and received technical assistance on removals, 

closures, and corrective actions. 

As I mentioned earlier, Mr. Chairman, Indian tribes often do not have easy 

access to state financial assurance funds, since the states do not have jurisdiction 

over the tanks on the reservations. The inability to participate in state funds has 

presented problems in terms of tribes coming into compliance with the financial 

responsibility regulations and for obtaining financial assistance for conducting 

cleanups. Several state funds, however, will cover tanks on Indian reservations if 

the tanks are in substantial compliance with state regulations. Verifying 
17 

- 8 -

compliance may involve the tribe allowing state inspectors access to the tanks, 

which in some cases raises significant jurisdictional issues between the tribal 

governments and states. Some states are beginning to develop agreements with 

specific tribal governments to attempt to deal with these problems. 

Major Challenges 

While changes in state financial assurance funds will help somewhat, there 

are still major challenges facing the UST program on Indian lands. First, while 

there are not a particularly large number of tanks, the tanks are distributed over 

millions of acres on many different reservations. While EPA's resources may 

compare favorably to those of some small state programs, the states are more 

compact, and state staff find it much easier than do EPA regions to keep in close 

contact with tank owners and operators. For example, a state inspector may have 

two sites across the street from each other. An EPA employee, in contrast, may 

need to travel four hours or more between two sites on the same Indian 

reservation. 

Second, there is tremendous variation among the tribal nations in the way in 

which they want to deal with underground storage tanks. The Navajo Nation is 

interested in running its own program. Others want to rely on EPA, and some 

have reached an agreement with states for program implementation. This diversity 

is a constant challenge to EPA as the Agency wants to use those approaches that 

are most beneficial to the tribal nations. 
18 

- 9 -

The third issue is abandoned tanks. While it is impossible to provide an 

exact number, it is likely that hundreds of abandoned tanks exist on Indian 

reservations. Some percentage of these probably have leaked, and will require that 

corrective actions be taken once the release is discovered. In many of these 

cases, the responsible parties are not obvious. Even when responsible parties can 

be identified, they may not be financially able to complete the cleanup. 

Fourth, there are significant costs involved in cleaning up sites and 

upgrading or replacing tanks, requirements which all tank owners must meet by 

1998 to keep their tanks in operation. Even when state funds might be available 

to help with cleanups, most do not provide funds for tank upgrades or 

replacements. Thus, there are significant financial issues for all tank owners and 

operators including those on Indian reservations. 

Finally, there also are significant costs involved in running an UST program. 

The small number of tanks on most reservations precludes a self-sustaining 

program. Sources of financial support need to be found for those tribal 

governments that have the desire and capability to administer their own UST 

program. 

These appear to us to be the most significant challenges facing the 

implementation of the UST program on Indian reservations nationally. Others may 

have additions to this list, and certainly there are other challenges of more localized 

significance. While we are making progress in carrying out the UST program on 

Indian lands, we are also well aware of the work that remains to be done. 
19 

- 10 -

OPEN D.UMPS ON INDIAN RESERVATIONS 

Municipal Solid Waste Landfill Criteria 

On October 9, 1991, EPA issued criteria governing the disposal of municipal 

solid waste (MSWl in landfills. These criteria, which appear in 40 CFR Part 258, 

assure that all MSW is disposed of in an environmentally safe manner. The criteria 

include restrictions that ensure landfills are not located in environmentally sensitive 

areas (such as wetlands) nor sited in a location that could compromise the integrity 

of the landfill unit (such as seismic and fault areas). Operating requirements are 

included to ensure that landfills are managed in a manner that is protective of 

landfill workers and residents living adjacent to landfills. These requirements 

include monitoring to detect the buildup of landfill gas and the placement of daily 

cover material to control disease vectors, fires, odors, blowing litter, and 

scavenging. The criteria include design provisions that prevent ground-water 

contamination by providing a barrier against the migration of leachate from the 

landfill unit. Ground-water monitoring and corrective action requirements are 

included to detect any releases from the landfill unit and to ensure that such 

releases will be cleaned up. The criteria's closure and post-closure care 

requirements are important provisions that prevent infiltration of precipitation into 

the landfill and ensure that any releases that occur after closure are detected and 

remedied appropriately. Finally, the criteria include financial assurance 

requirements to ensure that sufficient money will be available to pay for proper 

closure, post-closure care, and corrective action (if needed). 
20 

- 11 -

Implementation Dates 

The MSW landfill criteria do not apply to landfills that stopped receiving 

waste before October 9, 1991. Landfills that received waste after October 9, 

1991, but stopped receiving waste before the rule's effective date are only 

required to comply with the final cover requirements of the landfill criteria. The 

effective date for tribal landfills that receive more than 100 tons per day (TPD) is 

October 9, 1993. The effective date for tribes with landfills receiving 100 TPD or 

less is April 9, 1994. If a tribe owns and operates a very small landfill (i.e., less 

than 20 TPD) that is located in an area with less than 25 inches of rain per year, 

its effective date is October 9, 1995. 

If a tribe does not wish to upgrade its current landfill to meet the Part 258 

requirements, the tribe must cease receipt of waste by the applicable effective 

date. Of equal importance is that the tribe must complete cover installation at the 

landfill by October 9, 1994, or for the very small landfills, by October 9, 1996. 

These rules are the same for non-tribal landfills as well. 

Closure Requirements 

Proper closure of MSW landfills is necessary to prevent future public health 

or environmental problems. Under the requirements of the Part 258 landfill criteria, 

the site owner/operator must install a final cover system that is designed to 

minimize infiltration and erosion. The final cover must consist of at least two 

portions: ( 1) an infiltration layer composed of a minimum of 18 inches of earthen 
21 

- 12 -

material that has a permeability less than or equal to the permeability of any 

bottom liner system or natural subsoils. (However, it must have a minimal 

permeability of no greater than 1 x 10·5 em/sec.) and (2) an erosion layer, 

consisting of a minimum of six inches of earthen material capable of sustaining 

native plant growth, to prevent the disintegration of the infiltration layer. 

The Agency understands that many of the landfills on Indian lands do not 

include liners; rather, the waste was placed directly on the existing subsoils. 

Therefore, the Agency suspects that a typical open dump on Indian lands will 

require the minimum 18 inches of earthen material compacted to a permeability of 

no greater than 1 x 10·5 em/sec and an overlying erosion layer to sustain 

vegetative growth. 

Cost Of Final Cover 

The cost to install a final cover will vary considerably from site to site. Site 

size, location, design and cover material availability will affect site closure costs. 

The Agency's Subtitle D Landfill Cost Model estimates that the cost of closure of a 

10 TPD MSWLF unit (serving a population of approximately 5,000) requiring the 

minimum cover design of 18 inches of 1 x 1 o-s em/sec earthen material overlain by 

six inches of soil to support vegetative growth is approximately $235,000. This 

assumes a coverage area of approximately 4 acres. These costs include the design 

and installation of a soil/vegetative cover, which is what would be expected at 

many of the tribal open dumps. 
22 

- 13 -

The cost of applying final cover on a one-acre landfill, which may be typical 

of many open dumps on Indian lands, will be approximately $50,000. 

Cost To Open A New Landfill 

Rather than close its landfill, a tribe may decide to operate its own landfill in 

compliance with the Part 258 requirements. For smaller landfills, the disposal cost 

per ton could be prohibitive. For example, for a lined landfill of less than 10 tons 

per day, the disposal cost would be greater than $100 per ton. The major cost 

components include the installation of a composite liner and cover system and 

ground-water monitoring for a 20-year active life and a 40-year post-closure care 

period. By contrast, where tribes are able to take advantage of a regional landfill, 

the disposal costs per ton will decrease significantly. For example, the same 

design landfill accepting 25 tons per day, would cost approximately $70 per ton, 

and a 75 ton per day landfill would cost about $45 per ton. 

Where a tribe's landfill is located in an arid area, the cost would be less due 

to the savings associated with design changes. In this case, for a landfill of less 

than 10 tons per day, the cost per ton would be approximately $70 per ton, 

assuming an in-situ soil liner. By contrast, a regional facility, which also may be 

able to take advantage of a minimal liner and cover design due to dry local 

conditions, would be much more economical. For example, the cost per ton at a 

25 ton per day landfill will decrease to approximately $45, and the cost of a 75 

ton per day site would be approximately $30 per ton. 
23 

- 14 -

In developing the original Part 258 MSW landfill requirements, the Agency 

recognized the cost impact that the landfill criteria could have on smaller landfills 

located in dry locations. As a result, the Agency included in the original Part 258 

MSW landfill criteria an exemption from ground-water monitoring for very small 

landfills located in arid areas. Recently, however, the U.S. Court of Appeals 

removed that exemption, thereby requiring all landfills, regardless of size or 

location, to comply with the ground-water monitoring requirements. In response to 

the Court's decision, the Agency is investigating alternative ground-water 

moni.toring requirements that could ultimately decrease costs for these small 

landfills. In recognition of the burden this decision places on small landfills and 

because this investigation will take some time, the Agency decided to extend the 

effective date for these sites for two years (until October 9, 1995). 

Clearly, these numbers show that regional solutions are the most costeffective approach to waste management in rural areas, including tribal lands. The 

Agency believes that regionalization of solid waste management employing larger, 

better located, designed, and operated landfills,. is preferable to continued use of 

small, poorly planned facilities that may pose health and environmental threats to 

their communities. 

Implementation Responsibilities 

The Resource Conservation and Recovery Act (RCRA) of 1976 as 

amended by the 1984 Hazardous and Solid Waste Amendments (HSWAl requires 
24 

- 15 -

States to develop and implement permit programs to ensure that municipal solid 

waste landfills !MSWLFsl comply with the revised Federal Landfill Criteria. The 

statute, as written by Congress, expressly delineates States as the implementors 

of the Federal Criteria. While the statute does not address implementation on 

Indian lands, EPA's policy is to view the tribes as the key implementors of the 

program on tribal lands. 

EPA's role is limited to developing regulations and to approving adequate 

MSWLF permit programs. EPA does not permit or inspect MSW landfills. Further, 

the statute precludes EPA enforcement of the Landfill Criteria except in those 

cases where EPA has formally deemed the State/tribal program to be inadequate. 

As a result, the Criteria were designed to be self-implementing. However, a 

citizen may sue in Federal court under the RCRA statute to ensure compliance with 

the Federal Criteria. Therefore, enforcement by States/tribes and citizen suits are 

the main mechanisms for ensuring compliance with the Federal Criteria. 

Though RCRA mandated that States seek approval of their permit programs, 

it was silent on Indian tribes. EPA believes there is sufficient authority to approve 

tribal permit programs. Many tribes do not have landfills or environmental codes 

and thus will not desire to seek approval. However, several tribes have submitted 

draft applications for permit program approval. EPA believes that up to 21 tribes 

may seek approval of their MSWLF permit programs in the near future. As tribes 

continue to develop infrastructure to support their environmental programs, 

including the promulgation of environmental codes, this number could grow. As 
25 

- 16 -

with States, EPA will review tribal application submittals and approve programs 

that ensure compliance with the Federal Criteria. 

Implementation Assistance To Tribes 

In the last few years, EPA staff in Headquarters and 

throughout the Regions have worked with the tribes on a variety of projects related 

to waste management--all designed to meet tribal needs and RCRA program 

objectives. I would like to describe several of them to you. 

o In 1991, we supported the Eastern Band of Cherokee Indians in planning 

and implementing the first National Tribal Conference on Environmental 

Management. The conference, supported as well by BIA, IHS and HUD, 

attracted over 400 participants with 90 tribes represented. Planning for a 

second conference, scheduled for May 1994, is underway. 

o In 1992, EPA's Office of Solid Waste initiated the Solid Waste Circuit 

Rider program in an effort to provide hands-on, technical assistance and 

training to tribes on solid waste management issues. This team of RCRAtrained Senior Environmental Employees work for EPA through a grant to the 

National Council of Senior Citizens and are directed and monitored by EPA 

Regional Staff. Currently, Regions 4, 6, 7, 9 and 10 have circuit riders. 

They have been instrumental in our efforts to raise tribal understanding of 

solid waste management issues, particularly the impact of the new landfill 
26 

- 17 -

regulations. Circuit riders also work with the tribes to develop codes, 

ordinances and solid waste management infrastructures, important first 

steps in building tribal capability to manage environmental programs. 

o EPA Region 10, with funding assistance from Headquarters, developed 

the Solid Waste Network, an alliance of federal and private sector advisors 

to aid tribes in their efforts to manage solid waste. One of the network's 

first projects was assisting the Confederated Tribes of Umatilla Indian 

Reservation in developing a solid waste management plan, a necessary first 

step in exploring alternatives to the tribes' current waste disposal system. 

o EPA also sponsored tribal meetings in Regions 5, 6, 9 and 10. These 

meetings provided tribes a unique opportunity to speak with one another on 

issues of mutual concern. We were able to provide extensive training on the 

new landfill criteria and a forum to listen to and respond to tribalspecific/regional issues. BIA, IHS and HUD have participated in the meetings 

as well; we have plans to continue these meetings throughout FY 1994. 

o The Agency also provides resources to the tribes through the multimedia/General Assistance Program, designed to build tribal capacity and 

management capability to implement environmental programs administered 

by EPA. 
- 18 -

o EPA and ACTION have developed a joint, 2-year pilot project that places 

VISTA volunteers in Alaska to assist the villagers with solid waste 

management issues. The first 5 volunteers, recruited by ACTION and 

selected by EPA, will undergo an extensive week-long training in early 

November and will be on-site shortly thereafter. We are considering the 

possibility of duplicating this project in Indian country in the lower 48 once 

the pilot is over. 

o And, EPA recently awarded a grant to the National Tribal Environmental 

Council tor the development of a tribal peer match program and one to 

Americans For Indian Opportunity for the development and implementation 

of lndianNet, a tribal communications network. 

Conclusion 

EPA will continue to work with tribes by providing technical assistance and 

training to enable them to make informed decisions concerning the kinds and level 

of environmental protection programs that will be necessary to protect human 

health and the environment. 

I believe that accomplishments like those reflected earlier in my testimony 

reflect EPA's continuing commitment to assist tribes in achieving a fully acceptable 

level of environmental protection. In doing so, we will continue to strive to 
28 

- 19 -

empower Native Americans to achieve the autonomy they seek and their rightful 

place as the environmental managers of their lands. 

Mr. Chairman, this concludes my testimony. Mr. Weddle and I will be happy 

to answer any questions you or other members of the Subcommittee may have. 
29 

Mr. FALEOMAVAEGA. Mr. Hayes, our good friend from the Bureau 

of Indian Affairs, Department of the Interior. 

STATEMENT OF PATRICK HAYES 

Mr. HAYES. Thank you, and good morning, Mr. Chairman. 

I am pleased to be here this morning to participate in your oversight hearing on leaking and abandoned underground storage 

tanks and the closure of open dumps on Indian reservations. As 

you have noted, I am accompanied today by Mr. George Farris, who 

heads up the BIA'S Environmental Services Office. 

We appreciate the fact that you have called this hearing so that 

the many problems associated with this issue can be surfaced, discussed, and resolved. Before a solution can be reached, there needs 

to be a full and complete description of the problems and situation 

across Indian country. 

There is significant complexity to these issues and resolution is 

going to require close cooperation among the many players. There 

are many entities that have a responsibility for these issues. There 

are at least four Federal agencies who share some responsibility 

plus the tribes themselves. And at times individual Indians need 

to share responsibilities here, as does the Congress. 

We all have a particular and unique charge when it comes to 

protecting the tribal land base, its resources, its environment, and 

most importantly, the health of all reservation residents. We also 

need to concern ourselves with the welfare of off-reservation surrounding communities. 

I would like to focus for a moment on underground storage tanks 

(UST). We view as our responsibility those underground storage 

tanks which we own, operate, or otherwise control. We believe that 

we have a very limited responsibility for tanks which are owned 

and operated either by tribes or by individuals. Within the Department of the Interior, the Office of Construction Management has 

primary responsibility for the operation of the UST program. The 

Bureau of Indian Affairs (BIA) participates on an as needed or 

when requested basis for program operation. 

Cooperation and participation between our offices, not only here 

in Washington, but more importantly, at our field locations, has 

been satisfactory. At locations where UST problems have occurred, 

we have seen BIA staff providing assistance as appropriate. 

Within the current program there are 603 USTs in the inventory. 

There have been 83 tanks removed, which leaves 520 tanks on the 

active inventory. The balance of these tanks are located all across 

Indian country, with the larger number of them located within our 

Aberdeen area, which encompasses the States of North and South 

Dakota and Nebraska. Many of these tanks contain fuel oil used 

for heating buildings, and thus are not regulated under the Resource Conservation and Recovery Act (RCRA). 

The inventory contains a great deal of information about the 

tanks from location to age to contents, et cetera. There is an ongoing program to measure tank tightness, and where problems have 

been detected the problem will get fixed either through repair or 

removal, and possibly replacement. 

One final note relative to USTs is that the Environmental Protection Agency (EPA) has overall responsibility for the regulatory 
30 

and enforcement aspects of the UST program. If a State has assumed primacy for the program, which they are permitted to do, 

then the BIA is obligated to follow the regulations of the governmental entity which has primacy for the program. 

I would like to now turn to the solid waste issue. Over the last 

three or four years, solid waste became a hot topic across Indian 

country. Tribe after tribe was being approached for the purpose of 

siting a commercial solid waste facility on their lands. Many tribes 

undertook to give serious consideration to these proposals. All, with 

one exception, were abandoned over time. 

The one exception has been the Campo Indian Tribe in Southern 

California who has cleared every hurdle and addressed every concern at the local level, the State level, and the Federal level. They 

have a facility which will become operational in the near future, assuming the legal challenges are met. 

There seems now to be a slacking off of interest in solid waste 

sites on reservations. I would suppose there are many reasons for 

this, among them are the costs associated with a successful proposal, the impacts on the environment which need to be mitigated, 

and the negativity surrounding these proposals from not only tribal 

members but also the local community. 

In terms of our current program, we have categorized solid waste 

sites according to ownership and usage: 

First, those that are owned and operated by the BIA. There is 

no doubt that we have a responsibility to ensure compliance with 

appropriate regulatory guidelines. 

Second, those that are tribally-owned and -operated but to which 

we have been a contributor. It is probable that we share responsibility for ensuring regulatory compliance. 

The final category are those that are tribally-owned and -oper· 

ated and for which there has been no Federal involvement. 

There are about 50 sites that fall within the first category and 

the BIA is actively involved in bringing those sites either into compliance or closing them. The direction that almost all are going is 

toward closure. To date, 24 have been closed. 

We have instructed our field offices that they need to stop accepting wastes at our landfills in accordance with the regulatory guidance from EPA. The current date that we are working with is April 

9, 1994. 

For those locations which are tribally-owned and -operated but to 

which the BIA is a contributor, we have been assisting the tribes 

in the closure of these landfills, resources permitting. During Fiscal 

Year 1993, assistance was provided to about 20 tribes in this regard. 

For those locations to which the BIA was not a contributor, we 

will provide whatever technical assistance we can and will assist 

according to resource availability. Those resources will be made 

available after we have taken care of those circumstances where we 

know that we have a responsibility. We do not believe that we have 

a responsibility where we are not an owner, operator, or contributor, and it is a far stretch of the trust responsibility doctrine to say 

there is a general trust responsibility in this circumstance. 
31 

In regard to solid waste and all other environmental concerns on 

Indian reservations, we have entered into an Memorandum of Understanding (MOU) with the Indian Health Service (IHS), Housing 

and Urban Development (HUD), and the EPA. The purpose of the 

MOU was to delineate areas of responsibility among the signatory 

Federal agencies. We hope to prevent overlap of services and to 

make it easier to determine areas of responsibility. The MOU also 

calls for periodic meetings between representatives from the agencies to discuss issues of mutual concern. 

And finally, Mr. Chairman, I would like to report that we have 

efforts underway to ensure that we have personnel at each of our 

area offices whose sole focus is environmental matters. At some of 

our areas, at the present time, environmental issues are assigned 

to individuals as a second or sometimes even third additional duty. 

We want to rectify that problem by providing resources to each 

area office so that they can focus on environmental issues. 

Mr. Chairman, that concludes my summary statement. Mr. 

Farris and I are available to answer any questions you may have. 

Mr. F ALEOMA V AEGA. Thank you, Mr. Hayes. 

[Prepared statement of Mr. Hayes follows:) 
32 

STATEMENT OF MR. PATRICK HAYES, DIRECTOR, OFFICE OF TRUST 

RESPONSffiiLITIES, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE 

INTERIOR, BEFORE THE NATURAL RESOURCES SUBCOMMITTEE ON 

NATIVE AMERICAN AFFAIRS, U.S. HOUSE OF REPRESENTATIVES, 

OVERSIGHT HEARING ON LEAKING AND ABANDONED UNDERGROUND 

STORAGE TANKS ON INDIAN RESERVATIONS AND THE EFFECTIVE 

CLOSURE OF OPEN DUMPS ON INDIAN RESERVATIONS. 

October 14, 1993 

Mr. Chairman, and Members of the Committee, I am here to discuss the problems 

associated with leaking and abandoned underground storage tanks (USTs) and the 

effective closure of open dumps on Indian reservations. This hearing provides an 

opportunity to describe the complex problems that exist on Indian lands and to 

discuss the efforts of the Bureau of Indian Affairs (BIA), other Federal agencies, 

and the tribes to find solutions. We hope this hearing will lead to a better 

understanding of the unique situation on Indian lands and foster a closer 

cooperation among the Congress, Indian tribes, and Federal agencies charged with 

protecting human health and the environment on Indian lands. 

Under the current situation, we are responsible for underground tanks that are 

owned and operated by the BIA. The BIA is not responsible for USTs owned and 

operated by the tribes or individual tribal members. However, tribes do ask for 

assistance on an infrequent basis in correcting certain problems associated with their 

USTs. A recent example is the Pueblo of Sandia which has a leaking underground 

tank at its gas station. The BIA's Albuquerque Area Office hydrologists provided 

technical assistance by surveillance of the site and reviewing reports prepared by 

consultants hired by the Tribe. Contact will be mamtained with the consultants and 

recommendations will be made to the tribe on the appropriate action the BIA 

believes is necessary at this site. 
33 

2 

Of the 603 tanks originally in BIA inventory, 83 have been pulled, leaving 520 

tanks in place. Of this number, 197 are located in the Aberdeen Area. 

Approximately half (97) of the Aberdeen Area tanks contain fuel oil used for 

heating buildings and are not regulated under the Resource Conservation and 

Recovery Act (RCRA) (90 Stat. 2795; 42 U.S.C. 6901). However, if any of these 

tanks are found to be leaking, they will be removed. 

At present, BIA, in conjunction with the Office of Construction Management, has 

implemented a program of tank tightness testing with remedial action being taken on 

those tanks whose integrity has been breached. At some locations, tanks are being 

pulled without testing and are being replaced with alternative systems. In looking at 

alternative systems, BIA will only go to aboveground storage tanks as a last resort. 

It is important to note that while the Environmental Protection Agency (EPA) is 

responsible overall for the regulation, development ~d enforcement of the UST 

program, many states have "primacy" and may have more stringent regulations than 

EPA. Under Federal Facilities Compliance Act (106 Stat. 1505; 42 U.S.C. 6901) 

provisions, the BIA is required to comply with the regulations of the Federal or state 

agency that has primacy for the program. 

BIA has classified three categories of solid waste sites on Indian lands, (1) sites 

owned and operated by the BIA; (2) sites tribally-owned and -operated but which 

BIA or other Federal agencies have contributed to in past years; and (3) sites 

tribally~owned and -operated where there has been no Federal involvement. 

We have identified approximately 50 BIA-owned and -operated sites within the 

exterior boundaries of Indian reservations, most of which are on the Navajo 
34 

3 

Reservation. Sites that have been actively accepting solid waste since October 9, 

1991, have for the most part been operated as "community open pits". To date, 24 

of these sites have been closed by BIA and the remaining sites are scheduled for 

closure before the new solid waste regulations become effective. 

These actions are in accordance with BJA's plan. to stop accepting wastes in these 

landfills by October 9, 1993; to begin disposing of solid waste in compliant 

landfills; and, to cover the re~g landfills in conformance with RCRA 

regulations. 

In those cases where BIA or another Federal agency has contributed to a triballyowned and -operated site, BIA has assisted the tribes in the closure of those 

landfills. This may be in the form of technical assistance from BIA agency, Area 

Office or Central Office professional staff: or in the form of limited funding from 

the BIA's Waste Management Program. During FY 1993, BIA provided funding to 

approximately 20 tribes to assist them in the closure of solid waste dumps on their 

reservations. Technical assistance was provided to tribes such as the Pueblo of 

Laguna, which are in the process of using its own construction company to close the 

dumps on its reservation. 

For the tribally-owned and -operated sites for which neither the BIA nor any other 

Federal agency have had involvement, the BIA will continue to provide technical 

assistance for closure and suggest alternatives to existing solid waste practices. 

We would point out that BIA has no existing authority to grant licenses, permits, or 

regulate the operation and maintenance of tribal solid waste facilities. In addition, 

BIA does not operate, supervise or otherwise control tribally-owned and -operated 
35 

4 

sites. However, the BJA, at the tribe's request, provides technical assistance and 

short-term equipment loans, when available, for tribal use at their landfills. The 

BIA encourages tribes to seek funding for their solid waste management programs 

from other agencies that are appropriated funds on a yearly basis to support these 

activities. These agencies include Housing and Urban Development (HUD) for 

construction and closure, Indian Health Service (IHS) for establishment of transfer 

stations and landfill construction, EPA for establishment of solid waste management 

plans and programs, and the Administration for Native Americans for cleanup of 

sites associated with Department of Defense activities. These programs are funded 

on a priority basis determined by the tribes and agencies involved. In addition, 

environmental personnel from both the central office and the area offices travel to 

the reservations to inspect proposed or existing solid waste landfills and make 

recommendations on actions required under Subtitle D of the RCRA. 

Under the RCRA., Federal agencies, states, tribes, local governments, and 

businesses are only liable for waste facilities they operate, manage or contribute to. 

It is BIA's position that we have no trust responsibility to the tribes operating their 

own facilities to either assure compliance with the Act or to clean up the problems 

associated with a tribe's non-compliance. 

In order to better serve the. needs of the tribes and to eliminate duplication of 

services, a Memorandum of Understanding (MOU) was signed in April1991 by the 

IHS, EPA, HUD and BIA. This MOU defines each agency's responsibility relative 

to solid wastes and other environmental issues. It is designed to help ensure a more 

coordinated effort in dealing with issues such as solid waste and help avoid 

duplication of limited resources among the four agencies involved. 
36 

5 

In an effort to upgrade the BIA's Waste Management Program and provide a more 

efficient use of limited resources, we are in the process of filling an Environmental 

Scientist position in each of the twelve Area Offices. These positions will bring 

technical expertise to the area level and will enable BIA to better coordinate our 

Waste Management Program. This will also provide better surveys of sites, help 

prioritize the actions to be taken and assist the BIA in being more responsive to 

emergencies that may arise on reservations. In addition, a top priority of the 

Environmental Scientists will be to train area, agency and tribal personnel. 

This concludes my statement. I would be happy to answer any questions you may 

have. 
37 

Mr. FALEOMAVAEGA. Also, we have this morning Dr. Gary Hartz, 

representing the Indian Health Service of HHS, Division of Environmental Health, Office of Environmental Health and Engineering. 

Dr. Hartz. 

Dr. HARTZ. Thank you, sir. 

STATEMENT OF GARY J. HARTZ 

Dr. HARTZ. I am pleased to have the opportunity to represent the 

Indian Health Service on these items of considerable concern to us 

as well as the Indian people. 

As you noted earlier, I am accompanied by Captain Barrar and 

Commander Crowe. 

The Indian Health Service's goal is to raise the health status of 

the Indian people to the highest possible level. Within that we have 

a threefold mission that I just want to touch on briefly because of 

what we are planning to address in the hearing today I think kind 

of folds into that particular mission. 

The first being to provide or assure the availability of the highest 

quality, comprehensive health services that we can to the Indian 

people. And the word "comprehensive" is what I will touch on as 

it relates to environmental health, and then a little bit later, more 

specifically, the Sanitation Facilities Construction Program, of 

which the Congress has been instrumental in laying out some 

guidelines as to how we address sanitation facilities, of which solid 

waste is a portion. 

Secondly in that mission is to provide increasing opportunities 

for Indians to administer their programs, and of that construction 

program they are currently involved in in excess of 60 percent of 

that particular program in carrying out the appropriations that are 

running on an annual basis plus contributions in excess of $100 

million. 

So there is a significant involvement in the program with the 

constituency that is going to benefit from the appropriations from 

you folks. 

Third, we serve as health advocates for the Indian people, and 

that is really the role we play as it relates to the underground storage tank activities. Where we provide technical assistance and consultative environmental services regarding the potential for public 

health hazards or environmental hazards. 

And that is about the extent of the role we play. We will provide 

that kind of technical assistance as requested. 

Getting back to the comprehensiveness of the program and the 

sanitation facilities that I referred to earlier, back in 1988, with the 

amendments to the Indian Health Care Improvement Act, we were 

instructed-even though we had identified the deficiencies of sanitation facilities throughout Indian country over a long period of 

time--Congress wanted to formalize that process and have us identify not only the universe of deficiencies but also to submit, come 

up with a 10-year plan of how that would be addressed. That includes water, sewer, solid waste, and the establishment and equipping of operation and maintenance organizations. 

Within that universe of $1.7 billion, the total for solid waste 

amounts to right at around $134 million. The 10-year plan, which 
38 

is to address the most economically and engineeringly feasible 

projects of that within 10 years, totals approximately $635 million, 

but 15 percent of that, around $107 million, in that 10-year plan 

is tied to solid waste related activities that need to be addressed. 

Generally those solid waste projects do not get funded as well as 

water and sewer because they just don't rank out as high as others 

do. When you look at the needs within Indian country, and I have 

identified that $1.7 billion, over $900 million of it is to address 

water. But $650 million of it is to address sewer deficiencies. 

So, in relative terms, the solid waste issue as identified out there 

is not as substantial in terms of the sanitation facilities. 

And finally, in commenting on that issue, when you look at the 

deficiencies that Congress has identified-that we were to identify 

these projects in-there are five levels of deficiency. The Congress 

as well as the tribes and the IHS by prioritizing the projects has 

given a higher priority to the water and sewer projects, even considering that in the last two years we have funded projects totaling 

approximately $5 million to address solid waste concerns throughout Indian country, and that is just the money that has been appropriated to the Indian Health Service. That doesn't include the 

money that has come from States, from tribes, the combining of 

money with our colleagues that are here at the table this morning 

and others. But that is the part that has been appropriated to us, 

sir. 

And that summarizes my comments and we are available to respond to questions. [Prepared statement of Dr. Hartz follows:) 
39 

DEPARTMENT OF HEALTH AND HUMAN SERVICES 

STATEMENT OF 

MR. GARY J. HARTZ I DIRECTOR 

DIVISION OF ENVIRONMENTAL HEALTH 

OFFICE OF ENVIRONMENTAL HEALTH AND ENGINEERING 

INDIAN HEALTH SERVICE 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

COMMITTEE ON NATURAL RESOURCES 

OCTOBER 14, 1993 
40 

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 

accompani~ by Mr. Thomas Crow, Chief of the .. Environmental Health 

Services Branch and Mr. Richard Barror, Deputy Chief of the 

Sanitation Facilities Construction Branch. We are pleased to be 

here today to discuss with you Indian Health Service activities 

relative to the closure of open dumps and the problems of leaking 

and abandoned underground storage tanks on Indian reservations. 

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: 1) to provide or assure the availability 

of high quality, comprehensive, and accessible health services; 

2) to provide increasing opportunities for Indians to administer 

their own programs; and 3) to serve as a health advocate for 

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

promoting a healthy environment including the construction of 

essential sanitation facilities, as well as advocating for proper 

public health practices and assisting in the resolution of 

environmentally-related health concerns. In FY 1992 the IHS 

assisted in the provision of essential sanitation facilities to 

over 4,700 Indian homes and provided over 158,000 environmental 

health services to Indian homes and communities. 
41 

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 (P.L.) 86-121, in 1959, more than 117,000 new and 

renovated (AI/AN) housing units and 69,000 existing (AI/AN) 

housing units have received sanitation facilities. 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: 

l) 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 74 percent. 

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

93.1 in 1987-89, a decrease of 57 percent. 
42 

4) The age-adjusted gastrointestinal death· rate decreased 80 

percent. 

Because of higher public health priority on water supply and 

sewage disposal problems throughout Indian country, only a small 

percentage.of the $1.1 billion has been spent ~y the IHS on the 

-- development of solid waste collection and disposal facilities. 

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 

tha IHS to provide necessary sanitation facilities and services 

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

Sanitation Facilities Act), which authorhes the IHS "to 

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

contract or otherwise, ess~ntial sanitation facilities, including 

do~estic and community water supplies and facilities, drainage 

ra~illtl~s, and sewage and waste disposal facilities, together 

with necessary appurtenances and fixtures, for Indian homes, 

communities and lands;." 
43 

Indian Health care Amen4ments 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 i~ section 7 of the Indian Sanitation Facilities Act, 

P.L. 86-121. 

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

P.L. 94-437, 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 P.L. 94-437 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. 
44 

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. This approach is 

supported by subsection 302(a)(3) of P.L. 94-437. 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 $160 million (FY 

1992 - $75 million and FY 1993 - $85 million) have been 

appropriated for the construction of sanitation facilities. We 

currently estimate that approximately $5 million of the $160 

million will be utilized for solid waste management facilities. 

Estimated Costs for §olid Waste Facilities 

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

which includes a list of proposed sanitation facilities 

construction projects, .and an estimate of the cost to correct 

solid waste deficiencies eligible for funding under the 

sanitation facilities construction program. 
45 

our most recent estimate for these solid waste deficiencies is 

approximately $134 million. Approximately $57 million of the 

$134 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) experience 

with estimating costs for complying with new EPA solid waste 

regulations is limited, (2) most estimates are not based on 

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

options to correct solid waste disposal deficiencies may vary 

substantially. 

Teqhnical Assistance - Solid Waste Management 

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 
46 

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 

responsibility for program implementation under the Indian 

Education and Self-Determination Act. Technical assistance 

relative eo solid waste management may include: (1) surveys of 

solid waste disposal sites, (2) assistance with development of 

tribal codes and ordinances, (3) assistance with development 

and/or review of management plans, (4) assistance with community 

education campaigns, (5) training of solid waste program managers 

and other workers, (6) assistance with identifying 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 for the total environmental health program. The IHS 

environmental health staff includes approximately 475 engineers, 

sanitarians, environmental health technicians, engineering aids, 

injury prevention specialists etc. 

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 surveillance by IHS environmental health 

staff to adequately advise tribal officials of potential health 
47 

effects. The list includes a total of approxi~ately 600 sites, 

of which approximately 175 are in Alaska and approximately 100 

are on the Navajo Reservation. This listing is not ~ complete 

inventory of solid waste disposal sites but includes those active 

reservation sites associated with do~estic solid waste syste~ 

and may include additional locations identifie4 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 sites are included in the Indian Health 

Service list of needed sanitation facilities construction 

projects. 

Underground Storage Tanks 

Indian Health Service activities related to underground storage 

tanks consist of providing technical assistance and consultative 

environmental health services to Indian tribes regarding the 

potential for a public health or an environmental health hazard. 

We have received very few requests from tribes for technical 

assistance with underground storage tank problems. 

This concludes my opening statement. I will be happy to respond 

to any questions. 
48 

Mr. FALEOMAVAEGA. Thank you very much. 

I have some questions here that I will, in a formal sense, raise 

at a later point. I want to make sure you gentlemen representing 

the three primary agencies dealing with Indian overall needs and 

this Committee are in agreement. Concerning the issue that we are 

discussing this morning, I have at least the perspective that we are 

talking about Federal legislation. 

Of course, Mr. Ziegele, EPA being the lead agency on environmental issues, do I get the impression that maybe the Congress 

has been somewhat deficient in its efforts to address this issue legislatively, whereby EPA seems to say that we don't hold responsibility for some of these issues that we are discussing this morning? 

Is it because of the lack of statutory authority that you have, or 

is it by some point in time maybe we failed on our part to provide 

legislatively to give you that authority to address these issues 

forthrightly? 

Mr. ZIEGELE. For several issues that have been raised, we are 

limited by legislative authority. Our lawyers have advised us that 

we don't have clear authority now to provide LUST trust fund 

funding to tribes to run regulatory programs in the leaking underground storage tanks area. 

Mr. FALEOMAVAEGA. Have you responded in writing to the committee telling us exactly where you lack the authority to address 

these issues specifically? 

Mr. ZIEGEr.E. No. That has not been requested. 

Mr. FALEOMAVAEGA. Can you provide that for the record? 

Mr. ZIEGELE. I will. 

Mr. FALEOMAVAEGA. I think that will be very helpful. 

[The information follows:] 

The Leaking Underground Storage Tank (LUST) Trust Fund was authorized as part of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-449). 

It provides funds for the Environmental Protection Agency (EPA) to implement the 

LUST program. In addition, it authorizes the Administrator of EPA to enter into 

cooperative agreements and make grants to states to carry out LUST Trust Fundeligible activities including administrative, enforcement, and direct cleanup activities (Section 9003(hX7) of the Solid Waste Disposal Act (SWDA) as amended). The 

enabling legislation gives EPA authority to give grants only to states. It does not 

give the Agency the authority to make grants to any other entities including municipalities and nonprofit organizations. Indian tribes are defined as municipalities under Section 1004(13) of the SWDA as amended. 

EPA can use LUST Trust Fund monies when there is a release that threatens 

public health and the environment and to the site meets the conditions specified in 

Section 9003(h)(2) of SWDA as amended. It is important to note, however, that even in such cases, the law requires that the Agency pursue cost recovery (Section 

9003(h)(6) of the SWDA as amended). If EPA used LUST Trust Fund monies for a federal-lead cleanup of a release from a tribally-owned tank, EPA would be re- quired to pursue cost recovery from the tribe as the owner of the tank. 

Mr. ZIEGELE. I wanted to point out we are working with the Appropriations Committees to try to clarify our authorities to give 

demonstration grants under 8001 of RCRA. So we are making 

progress in that direction. I will be happy to respond for the record. 

Mr. FALEOMAVAEGA. Well, I think it would also be helpful if the 

authorizing committee also has some understanding of what the 

Appropriations Committee is up to these days. We seem to have 

some problems with our appropriator friends. But it would be helpful. 
49 

Mr. ZIEGELE. I would be happy to do that. I would also like to 

add that on uses that we can make of the Leaking Underground 

Storage Tank Trust Fund, it is clear to us and we have been told 

by several staff members and Members of Congress that it was intended to be used to cleanup tanks only when we cannot find a responsible party or when that person is unable or unwilling to do 

the cleanup. 

It was not intended to clean up tanks where an owner or operator can be identified and has the wherewithal to pay for the cleanup. That is a limitation in our authorities as far as making funds 

available to tank owners on Indian lands and non-Indian lands to 

actually do cleanups. 

Mr. FALEOMAVAEGA. Why do you suppose you were given that 

limited authority, perhaps? Is there any understanding why you 

can take a half step and all of a sudden you have to come back 

again and regroup or just say simply you can't do it? 

Mr. ZIEGELE. Well, I believe the main reason is that the philosophy underlying this portion of the Resource Conservation and Recovery Act is the polluter shall pay. I believe the Congress did not 

intend to provide Federal funds to conduct cleanups unless there 

was no viable party to do the cleanup. 

Mr. FALEOMAVAEGA. It seems that the Federal Government is 

passing the buck to the State and local government agencies to be 

responsible for that cleanup. 

Mr. ZIEGELE. Well, actually, roughly 97 percent of the 225,000 

leaking tanks that we have found are being cleaned up by responsible parties. There are many States who have chosen on their own 

to step in and start cleanup funds using State money that provides 

some money to owners and operators to help with cleanups. But 

there are also several States that have chosen not to do that. 

There is no Federal program for doing that, and that is what 

would be needed, I believe, to address the concerns the chairman 

raised earlier. 

Mr. FALEOMAVAEGA. We have had these constant problems with 

our friends from the States just simply saying, "Listen. This is not 

our responsibility. These reservations are the responsibility of the 

Federal Government." So we are going back again. 

So, the tribes are caught in this constant hassle between State 

and Federal levels saying "We are not responsible." Where does 

that leave the tribes? 

Mr. ZIEGELE. There are several States who have agreed that they 

would pay for cleanups on tribal lands if the tanks are in compliance with State law. That, of course, does raise some jurisdiction 

questions with many tribes in many States. 

There are a good handful of States who actually are paying for 

cleanups on tribal lands. There are more who would be willing to 

do it but problems have arisen where the tribe does not want to 

acknowledge that the State has any jurisdiction over tanks on its 

tribal lands. 

Mr. FALEOMAVAEGA. What is your total budget allocation for 

doing the work that you are doing now dealing with underground 

storage tanks and problems? Who is cleaning this environmentally? 

Mr. ZIEGELE. For Indian lands? 

Mr. FALEOMAVAEGA. No, nationally. 
50 

Mr. ZIEGELE. It is approximately $75 million out of the Leaking 

Underground Storage Tank Trust Fund, and then approximately 

additional $9 million to $10 million of general appropriation. 

There are restrictions on use of the Leaking Underground Storage Tank Trust Fund, so we have two separate appropriations, one 

for leaking tanks--

Mr. FALEOMAVAEGA. So, from the Federal arm giving you that responsibility of over $75 million to do the cleanup process, what 

would you estimate the cost or the value, damage that the polluters 

or those who are responsible have done to hurt the environment as 

far as Indian lands are concerned? Have there been any estimates 

taken in that area? 

Mr. ZIEGELE. Estimates as far as environmental damage? 

Mr. F ALEOMA V AEGA. Yes. 

Mr. ZIEGELE. There have been no estimates. I can tell you what 

it costs to remediate a site, to clean it up, but that doesn't get at 

what the damages are. 

The average cost is approximately $100,000 to $125,000 per site. 

That can go as high as $1 million if there is extensive groundwater 

contamination. It is extremely expensive to cleanup a tank once it 

has leaked, which is why we have focused a lot on preventing leaks 

where we can do that. 

Mr. FALEOMAVAEGA. I see. 

Mr. ZIEGELE. It is a very expensive program. 

Mr. FALEOMAVAEGA. Our friends from the Department of the Interior, can you give us some specific measurements in terms of the 

areas, perhaps, statutorily that you lack or you don't have the authority to deal with this issue? 

Do you feel that you currently have the sufficient statutory language to give you the authority to do what you should be doing as 

the lead agency for Indian tribes? 

Mr. HAYES. Mr. Chairman, I believe that statutory authority already exists. Insofar as the Department of the Interior and the Bureau of Indian Affairs are concerned, we are essentially a secondary player when it comes to dealing with these issues. The primary 

agencies that have the expertise are who we look to and are where 

the statutory authority needs to be directed, to ensure that they 

have the authority to address these issues on Indian lands. 

As the chair is aware, the Department of the Interior has extensive involvement on Indian lands, primarily through our oversight 

responsibilities and trust responsibilities. We deal with all the 

leases and other types of entrance documents that people enter into 

with tribes and individual Indians. 

Mr. FALEOMAVAEGA. In that process, or at least part of your responsibility then in conducting these negotiations or leases between 

the tribes and the private sector corporations that want to use or 

for whatever purposes, do you feel that you have done it well 

enough that these lands are protected environmentally as part of 

the negotiations? Is the BIA doing this consciously or does it seem 

perhaps at times it was an oversight? 

The point I am making here is that we are getting complaints 

from the tribes that nothing seems to be done about the real serious environmental problems affecting these underground storage 

tanks. 
51 

What I am saying is, are you consciously doing this to make sure 

that Indian lands that are being leased are protected in that sense? 

If they pollute the land, then they should fix it up and clean it up. 

Has that always been the policy or is it something that we have 

just now become conscious of as far as being the lead agency for 

the Indian tribes when you negotiate these lease agreements with 

companies and other sort? 

Mr. HAYES. Mr. Chairman, I would venture to say that over the 

years and in recent years, there have been an increased sensitivity 

to environmental issues. The review and oversight that the Bureau 

of Indian Affairs provides relative to leasing documents has oftentimes been lacking in a lot of respects. 

But as I mentioned, I believe that there is a greater sensitivity 

to the issue in the recent years and our field staff are paying more 

and more attention to it. We have always had the obligation to address the National Environmental Policy Act (NEPA) in regard to 

these issues. We have had to ensure NEPA compliance and that 

has been done to a large extent dependent upon the capabilities of 

the local staff. 

Mr. FALEOMAVAEGA. I am sorry. I want to certainly recognize my 

good friend and colleague from the State of Arizona, Congresswoman English. 

Did you wish to have an opening statement? 

Ms. ENGLISH. I would like to enter my statement in the record. 

I won't take the time to read it right now. But I do have questions 

when it is appropriate. 

Mr. FALEOMAVAEGA. Without objection, the statement will be 

made part of the record. 

If you like, Congresswoman, I would be more than happy to have 

you entertain your questions. 

Ms. ENGLISH. Thank you. 

I would like to ask any of you that might have the information 

a little bit about the number of problems we are talking about and 

how they got there in the first place. I believe that a lot of the 

problems in Arizona have to do with lack of proper staffing to even 

know that problems exist so could you tell me how many problem 

sites we are talking about? .How many underground storage tanks 

and open dumps or hazardous waste sites are there? 

There are a variety of environmental problems that I believe 

EPA is partially responsible for. I need to get a handle on the 

quantity that we are talking about on reservation lands. 

Mr. ZIEGELE. Certainly. Out of the approximately 5,000 tanks on 

Indian lands, underground storage tanks that we regulate, we have 

had 530 confirmed releases, meaning that contamination has been 

found around the underground tank. That is roughly proportional 

to the rate of leakage that we are finding in the tank population 

nationwide. 

So it is a fairly high number. That is a large number of leaks, 

but we're finding it consistent with other tanks as well. 

I should point out that 130 of those releases have had the cleanups done, completed. So it is not as if all 530 have active cleanups 

going on right now. Some are done. 

The problems are caused because until recently underground 

storage tanks were bare steel and they corroded over time, causing 
52 

releases. Also, there are releases from piping and releases caused 

by overfill or spilling. So that gives an approximate figure as far 

as the problem of leaking tanks on Indian lands. 

Ms. ENGLISH. Those were the number of tanks that you are currently monitoring. How many tanks aren't being monitored? 

Mr. ZIEGELE. Well, at this point those are the number of tanks 

that we have found to be leaking, so those sites are being addressed. There are a total of roughly 5,000 active tanks on Indian 

lands, and there are requirements for leak detection, which means 

active monitoring to find leaks when they are occurring. That deadline has been phased in based on the age of the tank. 

As of December, all tank owners and operators have to be doing 

leak detection. And we have an enforcement program on Indian 

lands to do inspection and follow up when that work is not being 

done. 

Ms. ENGLISH. Does anyone else want to add to that? 

Mr. HAYES. Ms. English, I would like to add something to that. 

I had indicated in my earlier testimony that the Bureau of Indian 

Affairs through our Office of Construction Management has performed an inventory of underground storage tanks which are 

owned or operated by the Bureau of Indian Affairs, and in that inventory there were 603; 83 have been removed, leaving 520 tanks 

on the active inventory. Now those are just tanks that are owned 

and operated by the Bureau of Indian Affairs. 

There is an indeterminate number of tanks which are owned and 

operated by Indian tribes themselves and other individual Indian 

people on reservations, and I don't have a number for that. I am 

only aware of the number that we are responsible for. 

Ms. ENGLISH. Are you gentlemen then talking about two different sets of tanks here or are they overlapping numbers? 

Mr. ZIEGELE. I believe that the tanks that are owned and operated by Federal agencies on Indian lands are included in our inventory of approximately 5,000 active tanks. That number doesn't distinguish between tribally owned, Indian owned, non-Indian owned, 

and I am presuming that it includes the Federally owned tanks as 

well. 

Ms. ENGLISH. Is there an estimation of the cost of cleanup for 

that number of tanks? 

Mr. ZIEGELE. We have done an estimate. The average cost, as I 

mentioned earlier, to clean up a leaking underground storage tank 

site is approximately $125,000 per site, although it can be up as 

high as a million dollars per site if there is extensive groundwater 

contamination. 

We did an estimate for this hearing, and it is just an estimate, 

of the cost to clean up the releases that have not yet been cleaned 

up and projecting out the number of tanks that could leak based 

on what we know from the larger tank population. That estimate 

runs from $100 million up to well over $200 million for the entire 

cleanup bill. Again, it is a rough approximation. 

Ms. ENGLISH. Thank you. And my last question is, how many of 

these tanks were initially part of the military and if the military's 

cleanup is different than EPA or BIA? 

Mr. ZIEGELE. I am not aware of how many of the tanks that I 

have referred to were initially put in or managed by the military. 
53 

Ms. ENGLISH. Okay. 

Mr. ZIEGELE. I can try to find that out and submit it for the 

record. 

Ms. ENGLISH. I would be interested. 

[The information follows:] 

The Agency has been notified of 16 military tanks on Indian lands. There are four 

active Coast Guard tanks, three active Army tanks, and nine closed Army tanks. 

The Agency has not received any reports of releases from any of these tanks. 

Mr. HAYES. We don't have that information either, Ms. English. 

Most of our tanks, or a large number of our tanks are at our agency locations where they are used for heating. 

Ms. ENGLISH. Okay. 

Mr. HAYES. I am not aware of any of them being associated with 

military activity. 

Mr. FALEOMAVAEGA. Would the gentlelady yield? 

Ms. ENGLISH. Okay. 

Mr. FALEOMAVAEGA. The information we received states DOl is 

able to identify 520 tanks and EPA has come up with a figure of 

4,875. Where are we in this? 

Mr. ZIEGELE. What Mr. Hayes was referring to was the number 

of tanks that are owned by BIA. What I was talking about was the 

total number of tanks that we regulate that are on Indian reservations. And so his number was a subset of ours. But we are talking 

about two different things: those that are owned and operated by 

the Government and those that are simply on the reservation or Indian land. 

I wanted to point out just to clarify, Ms. English, that many of 

the tanks that Mr. Hayes was referring to are heating oil tanks not 

covered by the Federal law, so they would not be included in our 

inventory even though they are being managed by the Government. 

Ms. ENGLISH. That gets back-I am sorry to keep--

Mr. FALEOMAVAEGA. No. Please. 

Ms. ENGLISH. I am trying to get a handle on numbers here. That 

gets back to my original question. 

How many of the tanks are you monitoring? And maybe the 

question should have been how many tanks are you regulating and 

how many tanks aren't being regulated? There must be more than 

5,000 tanks total. 

Mr. ZIEGELE. There definitely are more than 5,000 tanks, but because we don't regulate them, we have no authority to ask people 

to tell us where they are. We have approximately 5,000 active underground storage tanks regulated by the Resource Conservation 

and Recovery Act, and there are some additional, roughly 2,000 

that are regulated that have been closed. 

I couldn't give you an estimate of how many heating oil tanks, 

for instance, there are or how many small tanks on farms, which 

also are exempt from the Resource Conservation and Recovery Act. 

Ms. ENGLISH. Are those tanks exempt off reservation? 

Mr. ZIEGELE. Yes. It is by statute. 

Ms. ENGLISH. Okay. Thank you. 

Mr. FALEOMAVAEGA. Thank you. 

Ms. English, I have to testify right now before another subcommittee on another issue, and I really appreciate your taking 

over the chair at this point. I just have one question for Dr. Hartz. 
54 

Have we had any serious health problems dealing with Native 

Americans on the reservations affecting their health and lives with 

reference to the leakages of the storage tanks, or anything that has 

affected their overall health conditions-deaths, subject to any 

chronic illnesses, anything of the sort? Have you any data? 

If we are talking about over 5,000 tanks, I daresay that there 

must be some real serious problems with this-contamination of 

the water as a result of leakages, the problems that we have had 

I think in New Mexico-was it New Mexico or in Arizona that had 

these deaths mysteriously coming out? 

Is there any connection with this, because of the contaminated 

water or problems with the leakages of these underground tanks? 

Dr. HARTZ. Whenever there is an unknown cause associated with 

an illness or a death, one often takes a look at what environmentally might be the reason for that. If the physicians can't identify what it is, it has to come from the environment. That is a little 

tongue in cheek there, sir. 

Mr. FALEOMAVAEGA. That was a pun, right. 

Dr. HARTZ. But, we are aware of allegations that have been made 

and presumptions that maybe water, contaminated water was related to an illness, but I am currently not aware of any deaths that 

have occurred related to underground storage tanks. 

We are available to provide technical assistance and get involved, 

and we are aware of some sites where underground storage tanks 

have been leaking. We are aware of the fact that there is-you 

know, cleanup has taken place, and the monitoring that goes on. 

If you determine that there is a leaking storage tank there is 

monitoring that does take place of any groundwater that might be 

potentially contaminated to assure that that is not incorporated 

into the domestic water supply. 

As I sit here, sir, I am not immediately aware of any case where 

that has created any significant problems with health. 

Mr. FALEOMAVAEGA. I will definitely come back. 

Dr. HARTz. If any do come up I would very much like to know, 

because those are the kind of things that we do need to be aware 

of to follow up on. You know, that is a part of our job. 

Mr. FALEOMAVAEGA. All right, my friend, I have got to go testify. 

I will be right back. Would you take the chair? 

Oh. Here comes the chairman. Gentlemen, here comes the real 

investigator here. 

Mr. RICHARDSON. The chair recognizes the gentlelady from Arizona. 

Ms. ENGLISH. I have asked my questions. I think we are ready 

for the second panel, Mr. Chairman. 

Mr. RICHARDSON. I would like to ask a few questions before proceeding to the next panel. We have received testimony raising several concerns regarding EPA's current policy on underground storage tanks on Indian lands. Tribes have indicated the EPA will only 

expend funds to clean up underground storage tanks in "time critical" situations. 

Now, isn't EPA responsible for cleaning up all leaking or abandoned storage tanks on Indian lands? Can we deal with this problem administratively or is the only option legislative? 
55 

Mr. ZIEGELE. Mr. Chairman, EPA is not responsible for cleaning 

up all underground storage tanks on Indian lands. We are responsible for regulating underground storage tanks. By the statute, we 

are responsible for finding owners and operators, responsible parties who must be directed to clean up those leaks. 

If those responsible parties are unable or unwilling to do that, 

we can and have conducted Federal-led cleanups, but we are then 

required to attempt to recover the costs that we incurred out of the 

Leaking Underground Storage Tank Trust Fund for addressing the 

site. 

Mr. RICHARDSON. All right. Well, if you don't have responsibility, 

who does? 

Mr. ZIEGELE. For cleaning up the sites? 

Mr. RICHARDSON. Right. 

Mr. ZIEGELE. It is the owner and operator under the Resource 

Conservation and Recovery Act. It is the person who owns the tank 

or had control of it and operated it. 

Mr. RICHARDSON. But your definition of owner has been an issue 

because your definition of owner precludes Indian tribes from getting any assistance. Isn't that right? 

Mr. ZIEGELE. Frequently the definition of owner, as it is applied 

on a case-by-case basis could mean that the tribe is the owner of 

the tank. It is not because of that that they would not get assistance, it is that they are responsible under the law for undertaking 

the cleanup and the law does not give us authority to provide financial assistance. 

Mr. RICHARDSON. Now, what about the issue of liability? Is the 

tribe liable? 

Mr. ZIEGELE. If it is determined that the tribe is the owner or 

the operator of the tank, they would be liable for the cleanup as 

well as potentially for third party damages. 

Mr. RICHARDSON. See, what we need to do is find a way to give 

the tribes assistance, and not make them liable. My question to you 

is, can you do it administratively? 

Mr. ZIEGELE. One thing I would point out is that if there is a 

case where there is no owner or operator, and there is an imminent 

danger, we do have funds to begin the cleanup. I want to make 

sure you understand that we would not allow a threatening situation to occur on Indian reservations because of the statutory limitations that I raised earlier. 

However, on the question of giving Federal funds to tribes in 

order to do cleanups, that would require an amendment to the Resource Conservation and Recovery Act. We have no authority to use 

EPA funds to do any cleanups where there is a viable responsible 

party. What you are talking about would be a new program and a 

new use of Federal funds. 

Mr. RICHARDSON. All right. So we have to amend the RCRA law. 

Mr. ZIEGELE. It would require that. 

Mr. RICHARDSON. The amendment would deal with the liability 

issue and enable tribes to get assistance; in other words, make 

them eligible for assistance like anybody else? 

Mr. ZIEGELE. No. It would make them eligible for assistance but 

in a way that others are not. No one else can get Federal money 
56 

to. do cleanups of underground storage tanks where there is a viable responsible party. 

Many tank owners in many States have benefited from State programs that use State tank fees or gasoline taxes to make money 

available to help with cleanup and meet our program's financial responsibility requirements. Many States have not done that, and 

there is no Federal program for that. That is what would be required in order to really help. 

Mr. RICHARDSON. Okay. So we don't have any national underground storage tank policy for Indian tribes. We just kind of hope 

they get better, or what do we do? 

Mr. ZIEGELE. Our policy is tied to our authority. First, it is EPA's 

job to help ensure public health and environmental protection from 

underground storage tanks on Indian lands. We will work with 

tribes to help them develop their own capability to regulate underground tanks, and we are doing that. 

We will help them with technical assistance. We will directly implement the program where that is what works best for them and 

us. And we will help facilitate State and tribal arrangements and 

agreements if that is the best way to provide that protection. 

There is no policy to provide Federal funding to clean up tribally 

owned tanks, because, Mr. Chairman, as I said, we have no authority to do that. 

Mr. RICHARDSON. Right. Okay, now one of my Pueblos in New 

Mexico, Sandia Pueblo, my understanding is they have asked you 

for assistance to clean up leaking underground storage tanks and 

you said you can't help them. The same with Pojoaque Pueblo. You 

know, these are very provincial issues to most everyone here, but 

not to me. 

What happened here? Could you tell us? 

Mr. ZIEGELE. I do not have all the facts at hand, but my current 

understanding of the situation is that there was a service station 

on tribal land. It was operated for approximately 30 years by several lessees. I believe it was in 1991 when the facility was turned 

back over to the tribe and the lease ended. 

The tribe then undertook to close the underground storage tanks 

that were at the facility and they found that there had been contamination of the site. 

The tribe began an investigation. They also, some during that period, notified EPA of the problem. The EPA directed the tribe to 

continue with the site investigation and they have done so. 

Also, during the course of this the tribe, at our request supplied 

a list of the lessees, so we could investigate them as potentially responsible parties and consider enforcement actions against past operators of the tank. We got that after several months and right now 

our Region VI office in Dallas is looking into the matter. 

As of this point, they have tried to contact two of the lessees and 

they have been unable to do so because it has been quite a while 

since these people operated the facility; 

On the issue of financial assistance, we unfortunately have limited authorities as I mentioned earlier-if there are viable owners 

and operators we can't provid,e Federal funds to clean up a release 

unless there is an imminent and substantial hazard, and there is 

not, from the information that we have on the site. 
57 

Mr. RICHARDSON. Well, you may hear differently from the Pueblos shortly. 

I have more questions, but I would like to recognize the 

gentlelady from Arizona. 

Ms. ENGLISH. I asked most of my questions but your questions 

prompted one more. 

In Arizona, I was in the legislature around the time underground 

storage tanks became an issue with the EPA, and we devised a 

funding mechanism for small businesses, small service stations and 

businesses, that didn't have the type of funding a large business 

might have to do cleanup .. I can't recall at this point where that 

funding came from, but it was set aside by the State. 

Does BIA or can EPA put together a similar program for tribal 

lands much like a State would put together for businesses within 

the State to help in the cleanup? 

Mr. ZIEGELE. Under EPA's current authority, we could not use 

Federal funds for that purpose. But 43 States are somewhere in 

the process of developing funds similar to Arizona's, so there are 

many models that could be adopted if the Federal government was 

given the authority to do that. That is something that EPA would 

assist BIA and others in looking into. EPA could not establish such 

a program now under our current authorities. 

Ms. ENGLISH. Would BIA have the authority to do that at this 

point? 

Mr. HAYES. I am not sure whether or not we would have the authority, Ms. English. I think that we would be willing to work with 

EPA and the tribes through discussion on this issue. If that is the 

appropriate way, then the authority could be established for the 

agency which is the appropriate one. 

Ms. ENGLISH. Okay. Thank you. 

Mr. RICHARDSON. Mr. Hayes, I am a little bit surprised by what 

you just said. Are you basically also saying that the BIA would 

have no trust responsibility for Indian tribes regarding assuring 

compliance with RCRA or to address any violations of the Act? I 

mean are you basically saying that you don't have authority over 

these facilities that are located on trust land? 

Mr. HAYES. Mr. Chairman, I am not saying that entirely the way 

you categorize it. What I am saying is that we do have some oversight responsibilities by virtue of the fact that we are the trustee. 

We are involved in the review, periodic review of leases to assure 

compliance of the terms of the lease, and we endeavor to do that 

as our resources permit. There is, however, no free-floating general 

trust responsibility in this regard. I don't think it rises to the level 

of a trust responsibility. That is the distinction that I think we 

need to make. 

Mr. RICHARDSON. But doesn't the Secretary of the Interior have 

to approve any lease on trust land? 

Mr. HAYES. That is correct. 

Mr. RICHARDSON. Well, so isn't that substantial leverage or involvement? In other words, what is the Secretary's power if there 

is an environmental problem on Indian land? 

Mr. HAYES. The Secretary has no trust responsibility for the operation of these leases. The Secretary has the trust responsibility 

and the obligation to review lease proposals and to approve them 
58 

should the parties come to some agreement on it and it is consistent with what the trustee feels is appropriate in terms of compensation and safeguards to the tribe or the individual owner. 

But we have no trust responsibility for that operation or operational aspect of it. 

Mr. RICHARDSON. All right. Now, there is a little discrepancy 

here that has been pointed out to me. EPA is telling us that there 

are 4,875 tanks on Indian lands. Now you are telling us, Mr. 

Hayes, that there are 520 underground storage tanks in the BIA 

inventory. 

What is the difference there? 

Mr. HAYES. The 520 there that I referenced, Mr. Chairman, are 

those tanks that are under our ownership, operation, and control. 

The numbers referenced by the EPA include the numbers that I 

referenced, the 520. They also include tanks which are owned and 

operated by tribes, by individuals, either Indian or non-Indian. 

Those that I am talking about are just those owned by the Bureau 

of Indian Affairs. 

Mr. RICHARDSON. Now, let me just give you an example, again, 

on the Navajo reservation. They have some open pits which remain 

as remnants from some of the old abandoned uranium mines. A lot 

of these pits have become dumping grounds for all kinds of-even 

radiation, but a lot of hazards that are included in the definition 

of illegal dumping. 

Now, does EPA have any authority to clean up such a dump? I 

mean there is one in Shiprock, New Mexico, that I have seen. Can 

you logistically clean that up? 

This is uranium and it is an abandoned mine. It has all kinds 

of contaminated materials even radiation. Now can you clean that 

up? 

Mr. ZIEGELE. Mr. Weddle? 

Mr. WEDDLE. The way the statute is set up the Federal Government is not in an operating mode, does not have, per se, cleanup 

authority to deal with situations whether they are on Indian land 

or whether they are on private land. The Federal role is one of setting national standards, and those standards would include standards for cleanup. 

But the implementation of those standards rest with Indian 

tribes, States, local governments, owners, and operators. 

EPA does not have authority to go in and clean up individual situations other than, perhaps, under the Superfund program should 

the site you are talking about be ranked high enough to warrant 

special attention under that program. 

Mr. RICHARDSON. How many of these underground storage tanks, 

Mr. Hayes, has the Secretary required proof of financial responsibility of the operator? 

Mr. HAYES. Of the tanks that we are responsible for? 

Mr. RICHARDSON. Right. In other words--

Mr. HAYES. We are fully responsible for those. 

Mr. RICHARDSON. Okay. So you--

Mr. HAYES. Yes. 

Mr. RICHARDSON. Those are the BIA? 

Mr. HAYES. Our Office of Construction Management has the program. 
59 

Mr. RICHARDSON. Now, do you routinely require the posting of 

bonds or security to ensure any kind of remedial action in the 

event of an accident or leak? 

Mr. HAYES. Are you speaking in terms of just the general leasing 

authority? 

Mr. RICHARDSON. I mean what do you do? What are your procedures in the event of a leak? Is there any process that you go 

through? Do you require any bonding or any posting of any security? 

Mr. HAYES. During the course of the lease negotiations, the Bureau of Indian Affairs is often involved with the potential lessee 

and the tribe, or the individual in many cases, we become aware 

of the purposes of the lease, and there is provision in our leasing 

regulations to require bonding of the lessees. 

Oftentimes the bonding is required primarily for performance 

purposes, to assure that the lessee does what he or she says they 

are going to do on that land and to assure the payment of the annual rental of the property. In some cases there has been a requirement that bonding be provided to assure environmental compliance 

at the conclusion of the lease. 

I am not aware of situations or locations where that has not been 

required, but the general authority is there and it is between the 

parties to the lease and the Secretary's representative, in most 

cases the superintendent, as to the level of the bonding requirement and whether or not bonding is going to be required at all. 

Mr. RICHARDSON. Could you provide a list to this committee of 

a breakdown of the number of underground storage tanks on Indian land and a listing of any type of security that ensures the financial responsibility of an operator? 

Mr. HAYES. We would need to work with the people from EPA 

to determine what they have in terms of their list. Our list is, as 

I have mentioned, Mr. Chairman, the listing of those tanks which 

the Bureau of Indian affairs owns and operates and thus is responsible for. 

[EDITOR'S NOTE.-the information was not received at the time of 

printing.] 

Mr. RICHARDSON. Now, let me conclude with a question to my 

friend from the Indian Health Service. Do you have any kind of 

solid waste management plan for all Indian tribes? Have you prescribed that? Have you tried to develop a systematic solid waste 

management plan for all tribes at the IHS? 

Dr. HARTZ. The idea of a solid waste management plan is absolutely paramount in order to address this problem, and that is 

something that we have been working on with our staff over the 

years, as one of the many things we do in dealing with everything 

from bubonic plague to constructing water and sewer facilities. 

The plan is something that needs to be done in cooperation with 

the tribes. It is not something that the Federal Government, I believe, should do in a vacuum. And there are a number of places 

where actually EPA is assisting in that process as well and providing money to do solid waste management plans. 

We, sir, are doing some. The answer, do we have them done for 

all tribes, they are not done for every tribe. It is a comprehensive 

program in developing a plan that entails the passing of codes and 
60 

ordinances by the tribal government. It needs to be more than just 

bringing in a bulldozer and closing out a site. There needs to 

be--

Mr. RICHARDSON. How many tribes, in your estimation, have a 

solid waste management plan? 

Dr. HARTZ. Rather than to speculate at this time I would rather 

provide that for the record. 

Mr. RICHARDSON. Well, all right. Give me an idea. Most? Hardly 

any? None? Some? 

Dr. HARTZ. Approximately half. 

Mr. RICHARDSON. Half. 

Dr. HARTZ. In varying stages, because one-I need to qualify that 

a little bit. Because under the previous regs, almost all of them had 

a plan as to how they were going to deal with it. But under the 

current ones it is quite different. 

Mr. RICHARDSON. How much would it cost to pay the annual operations for the BIA, IHS, and tribal sanitary facilities nationally? 

Dr. HARTZ. The cost to deal with-you are talking comprehensive 

facilities now, water, sewer, solid waste, the whole shooting match. 

Mr. RICHARDSON. Right. How much would it cost? 

Dr. HARTZ. Our estimate on that runs somewhere between a 

$100 million and $120 million annually would be required to pay 

that bill. 

Mr. RICHARDSON. Annually? 

Dr. HARTZ. Annually. You are talking of a recurring cost for 

the--

Mr. RICHARDSON. Yes. 

Dr. HARTZ. Yes. Yes, sir. 

Mr. RICHARDSON. Well, let me just make a concluding statement. 

Dr. HARTZ. May I qualify that a little bit? 

Mr. RICHARDSON. Sure. 

Dr. HARTZ. Because that is really what we are looking at from 

the standpoint of tribal utilities. I would have to go to the Bureau 

to add a number in there and a more specific number for IHS. 

I am talking about the operation of the utilities that are out 

there today, the tribal utilities. 

Mr. RICHARDSON. I understand. 

Mr. Hayes, would you agree with that estimate? 

Mr. HAYES. I think it is pretty fair, yes. 

Mr. RICHARDSON. You know, gentlemen from the executive 

branch, and those of us here in the Congress, we have no policy. 

This is what it seems to me is evident in this hearing. And we need 

to develop some very, very specific legislation about responsibilities, about resources, because we simply have no policy. 

I mean we have a jumble of different legal interpretations and 

everybody is evading the problem. I suspect we are here in the 

Congress too. None of these tanks are getting cleaned up and they 

are hazardous. 

The gentlelady from Arizona. 

Ms. ENGLISH. Thank you again, Mr. Chairman. 

I would like to strongly urge a solid waste policy, also. Arizona 

was the last of the States in the Southwest and in the West to 

adopt a policy. 
61 

Arizona's regulations were very lax, and we found ourselves becoming a dumping ground for all the other States, including New 

Mexico, California, and Nevada. Because there are so few regulations, there were all kinds of things coming into Arizona. Businesses were looking to develop various sites for various kinds of 

waste. And only after we developed a policy did we start to minimize that transportation of waste across borders. 

What has happened is, Indian lands are becoming the dumping 

grounds because they are less regulated than the States. States 

have now adopted higher standards than are required by EPA, and 

reservations now have lesser standards, so they become very attractive to those businesses or municipalities that need a dumping 

ground. This is viewed as a fiscal opportunity for the tribes to generate money by developing a variety of sites on tribal lands. 

Tribes who don't have the sophistication to develop a comprehensive plan really need the assistance of you folks to put together 

plans to protect their lands. Tribes have been caught unaware because they need economic development and the lack of opportunities forces tribes to accept and develop dumping grounds, and that 

is ludicrous. That is what happened in Arizona. 

The only way we can overcome that is by offering assistance to 

help tribes develop the same regulations we would want on 

nontribal lands. Tribes don't have the same financial resources to 

develop those plans, and it will take a concerted effort by everyone 

at that table to help develop those proposals for solid waste. And 

that is all kinds of waste. It isn't just underground storage tanks. 

It is hazardous waste. 

There was recently a proposal to have an asbestos dump on Navajo land and it would have generated a lot of money. The reason 

that was proposed for Navajo land was because there was no place 

else to put it because State regulation was too tough. 

I think tribal lands deserve better. I think the Indian people deserve better. I think it is time that we pull together and offer the 

same assistance available to Indian tribes so they can develop 

these kinds of plans. 

Having gone through this exact thing myself at the State legislature, in fact I chaired the committee that did it and was hated by 

everybody, I know how critical it is to act immedately. It is so important that I would assist in developing those kinds of plans for 

the tribes. 

So I got that off my chest. Thank you. 

Mr. RICHARDSON. The gentleman from American Samoa. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I had raised the 

question earlier, Mr. Chairman, with our friends, the panel, because it seems that nowadays it is always the bottom line consideration from our friends downtown is the cost. There have been some 

estimates made, and this is only about two years ago, that if our 

country was to seriously consider doing a cleanup of this country 

with its environmental problems that we are now faced with it 

should well be at least well over $100 billion to clean up our environment, and I want to raise this question with our friends from 

the EPA and DOL 

If by way of allocations of your budgets given is there any earmarks given to address this very serious problem on Indian lands 
62 

as far as storage tanks, landfills, dump sites? What kind of resources are you really making available to address this very issue 

that our friend from Arizona has just addressed? That is one question. 

Secondly, what measurement do you consider now of this issue? 

Is it serious? Are we overreaching ourselves in saying that it is not 

as serious as you may project it to be with some 4,800 tanks? If 

you could also help me. 

How big are these storage tanks? Our friends here from Indian 

Health Service say that it is no problem. We have had no Indian 

deaths. Healthwise that it is no problem. 

But I am still a little puzzled by all this and I wanted to ask our 

friends from EPA if they could address that question. 

Mr. ZIEGELE. On the question of resources going toward the problem, a vast majority of our resources are going toward running a 

regulatory program. Relatively little is going toward actually cleaning up sites. As I mentioned earlier, it is because of limits on our 

authority and because of success in finding responsible parties to 

conduct cleanups. 

As far as the money that would be needed, I would also point out 

that in addition to remediating leaking underground storage tanks, 

there is a need to consider the other costs of compliance with regulatory programs. 

By 1998, all regulated tanks must be removed, replaced, or upgraded to resist corrosion and meet other requirements, which 

could involve substantial compliance costs to owners on Indian reservations, including tribes that own tanks. So there is a legitimate 

policy issue as to whether there should be a role for the Federal 

Government in helping pay for not just cleanups on Indian lands 

but also other costs of being in compliance. 

I mentioned earlier we have no authority now to address that. 

It is a legitimate policy question. 

Mr. FALEOMAVAEGA. Mr. Hayes. 

Mr. HAYES. In terms of the amount of monies that have been 

identified to deal with underground storage tanks, as I indicated 

earlier, that is a program run by our Office of Construction Management, and I regret that I don't have the dollar figure that they devote to dealing with this issue. I would be happy to obtain that 

figure and provide it to the committee. 

In terms of our program, the program that Mr. Farris and I are 

responsible for, we have had in Fiscal Year 1993 a little over $3 

million-3.2 million I believe is the figure-that has been made 

available to Indian tribes to deal with not only solid waste issues, 

but hazardous waste issues. We provide monies to address sites 

where hazardous waste is the issue and concern. 

In Fiscal Year 1994, we are projecting a budget of about $4 million to deal with those same activities that I just mentioned, and 

again for Fiscal Year 1994 I can provide it to you from the Office 

of Construction Management but I don't have that dollar figure 

available. 

Mr. WEDDLE. I might add for landfills at EPA the total budget 

that I have to deal with all municipal solid waste for the entire 

country-recycr rocurement, landfilling, incineration-is less 

than $8 million. also includes regional money. Our budget for 
63 

working on Indian country problems has ranged from $1 million to 

$3 million per year for hazardous waste as well as nonhazardous 

waste issues. 

Mr. FALEOMAVAEGA. Is this because there is some policy consideration on the part of the Congress that perhaps reflected there is 

no serious issue with underground storage tanks? 

You know, the bottom line these days is the budget gives you the 

sense of priority on the part of our Federal policymakers. So, if you 

see a $1 million allocation for this program, as an example, it just 

tells you what kind of priority that we perhaps here in the Federal 

Government have for this issue. Am I wrong in this assessment? 

Mr. WEDDLE. Well, clearly, if you look at our statute and what 

the Congress is directing us to do, the emphasis is on hazardous 

waste rather than nonhazardous waste and municipal waste. 

On the other hand, given the numbers I gave you, it shows that 

EPA is committed to the problems on Indian lands with the resources we have available, and a substantial percentage of the resources that we have in dealing with municipal solid waste are focused on the problems on Indian lands. 

That is not to say it is a huge amount of money, but it is a commitment on our part. 

Mr. ZIEGELE. Sir, I didn't intend to evade your question about resources going toward the problem. I did want to answer the question. We have budgeted 2¥2 work-years for the program on Indian 

lands for this fiscal year. However, we are actually putting in closer to 6 work-years nationwide for the program. 

In addition, there is a half million dollars of contract money 

available to the regions each year and the regions themselves have 

put in an additional half million dollars over the past 4 years. 

Mr. FALEOMAVAEGA. Mr. Hayes, as the lead agency on dealing 

with Indian issues in the Federal Government, do you feel that currently the Bureau of Indian Affairs has sufficient statutory authority as well as resources to address this issue? 

Where are we on a scale from 1 to 10-1 being the worst and 10 

being the best? Do you feel that you need more help from us statutorily or do you feel that the way things are now it is perfect, you 

don't touch it, don't rock the boat? 

Mr. HAYES. I wouldn't say that things are perfect. There is always room for improvement in about anything you do. 

Mr. FALEOMAVAEGA. I like that. 

Mr. HAYES. However, I believe that authority exists. We have 

adequate authority to review lease documents, lease proposals, and 

things of that nature. We also utilize NEPA to some extent-well, 

to a large extent-to help us make information available not only 

to ourselves but also to the decision-makers as they decide about 

lease proposals, not only from the environmental perspective, but 

also the effects upon tribal members and the surrounding communities, depending upon the scope of the NEPA activity. So, in response to your first question, I would say that we have adequate 

authority. 

In response to your question about resources, there is a fairly 

significant unmet need in Indian country. The decisions that are 

made about fiscal resources being made available are made at levels within the Bureau of Indian Affairs, within the Department of 
64 

the Interior, and OMB, and eventually gets sent to the Congress 

as a part of the President's budget package, and there are competing demands for those resources. 

The decision-makers at the offices that I mentioned attempt to 

give the best consideration they can to environmental concerns. As 

a result we have about $4 million in our program, owing to where 

we fit on the range of importance in terms of the range of competing demands for that very small resource. 

The other agencies at the table go through that same process. 

They need to prioritize their programs in terms of the competing 

interest for that same dollar. 

Mr. FALEOMAVAEGA. Maybe I am not getting-1 think we have 

identified 520 tanks. Can you tell us, Mr. Hayes, right now as far 

as the BIA is concerned do you have the resources? Do you have 

a definite timetable you are going to meet to iiX leaks of any nature? 

I know you have got competing, what you call, you know, other 

interests involved, but I just wanted to-if you can pinpoint it exactly, tell us, do you or do you not have the means to control this 

issue, the 520 tanks that I think are on Indian reservations right 

now? 

Mr. HAYES. The 520 tanks are undergoing testing. They undergo 

regular and periodic testing. 

Mr. F ALEOMA V AEGA. Yes. 

Mr. HAYES. We do not pull a tank out if there is not a problem 

associated with it. As long as it is an operable and operating, safe 

tank it remains where it is. 

Mr. FALEOMAVAEGA. So there is no maintenance? You wait until 

it leaks and then you fiX it? 

Mr. HAYES. No. No. I didn't say that. We do the testing, and if 

the tests indicate that we have a problem with a particular tank, 

then we will either repair it if it is easily reparable or we will pull 

it and replace it. 

Mr. FALEOMAVAEGA. Okay. Mr. Chairman, thank you. 

Mr. RICHARDSON. I think the gentlelady from Arizona had a follow-up. 

Ms. ENGLISH. I do. Thank you. 

Just a real quick question. One of the biggest loopholes we found 

in developing plans, a hazardous waste and a solid waste plan for 

Arizona was in lack of clarity or the vagueness of the definition of 

recycle. You prompted that question. 

Has EPA taken a look at what recycling really is? And has it 

been clarified or defined with a little more strict regulation? 

Mr. WEDDLE. I believe you are talking about the definition of 

hazardous waste recycling, and there is a major effort underway 

right now involving State and local governments, the private sector 

and a host of other parties. I think that effort is going to continue 

to go on for sometime since this is a very complicated and a lot of 

economic ramifications of how that definition plays itself out. So it 

has not been totally clarified now and in terms of what it eventually is going to look at as we ftx some of the problems with our current definition. 

Ms. ENGLISH. Thank you. 
65 

Mr. RICHARDSON. We have been joined by the distinguished 

ranking minority member from Wyoming, and like myself, I want 

to tell my colleague I came in after having had my seventh meeting 

and I was a little confused when I started asking questions, and 

I wanted to know if the gentleman wanted to say anything or ask 

a question. · Mr. THoMAS. I have been in a grazing fee hearing, so I am fairly 

close cropped, as you can imagine. 

In risk of being repetitive, and you could give me a very short 

answer. Mr. Hayes, number one, do most of the tribes have an EPA 

group of their own environmental group on the reservation? 

Mr. HAYES. Could I ask Mr. Farris to respond to that? He is the 

chief of our Environmental Services Office. 

Mr. THoMAS. Okay. Sure. 

Mr. FARRIS. That is something that is getting quite a bit of recognition among Indian tribes at the present time. I don't have any 

hard numbers. I will say probably half or a little bit less than half 

have their own environmental programs, but it is something that 

is gaining momentum in Indian country. 

Mr. THoMAS. But the BIA isn't familiar with how many there 

are? 

Mr. FARRIS. No. I don't have any numbers on how many tribes 

have their own environmental programs and how many individuals 

they have on those programs and what disciplines they have; no. 

Mr. THoMAS. Then just one final question and then I will-because I didn't hear you. But who do you feel is the agency in charge 

of this issue? 

Mr. FARRIS. In charge ofl 

Mr. THOMAS. The issue of open dumps or underground leakage. 

Mr. FARRIS. Well, I think EPA has the regulatory activity, and 

BIA has a general trust relationship, and IHS has the--

Mr. THoMAS. So nobody is in charge. 

Mr. FARRIS. Well, there is a--

Mr. THoMAS. Sorry. I think I get the picture. Thank you. 

Mr. RICHARDSON. Gentlemen, thank you very much for appearing today, and we appreciate your patience and your questions. 

We need to develop a policy. I want you to look at a bill that I 

have introduced, one that deals with an Assistant Secretary for Indian Lands, that we believe should be a Native American Assistant 

Secretary for Indian Lands, that we are trying to attach through 

the Government Operations Committee, because I think it makes 

sense. We have no policy. We have a lot of Indian lands, especially 

in the West, and we know EPA is kind of resisting a little bit, but 

we hope to nudge you in the right direction. I think this would give 

more proper focus to this issue. 

I also have a bill which I think most everyone in our subcommittee has cosponsored, which makes the States and tribes treated 

equally under RCRA; in other words, so that they have the same 

eligibility, and I assume you will support that. 

You want to go on the record supporting it? Instead of nodding? 

Nods are not reflected in the official record. 

Mr. WEDDLE. Actually, I believe we are on the record of requesting such legislation, particularly with regard to solid waste and 

hazardous waste. 
66 

Mr. RICHARDSON. And the legislation establishing an Assistant 

Secretary for Indian Lands, Mr. Ziegele, do you support this proposal? 

Mr. ZIEGELE. I couldn't comment on the proposal to create an Assistant Secretary position for Indian lands. 

Mr. RICHARDSON. Okay. Well, we will be in touch on that. 

All right. Thank you all very much. 

We will now move on to our second and final panel. We will have 

representing the Pueblo of Pojoaque, Kevin Gover, of Gover, 

Stetson and Williams, Albuquerque, New Mexico. We will also have 

Ms. Sadie Hoskie, director, Environmental Protection Administration, Navajo Nation, Window Rock, Arizona; Mr. Frank 

Ducheneaux, on behalf of the Leech Lake Tribal Council, Cass 

Lake, Minnesota; Mr. David Coss, director, Environmental Protection Division, New Mexico Environment Department; the Honorable Frank Paisano, Tribal Councilman, Pueblo of Sandia in New 

Mexico, who is accompanied by Ms. Stephanie Poston, Tribal Planner. 

Please step up to the podium. We welcome all of you. 

I understand Mr. Coss is accompanied by Mr. James Bearzi, the 

chief of the Underground Storage Tank Bureau. 

Welcome, ladies and gentlemen. I will ask members of the panel 

to please observe our 5-minute rule. We will insert your statements 

fully in the record. 

We will start with Mr. Gover, representing Governor Viarrial of 

the Pueblo of Pojoaque. 

PANEL CONSISTING OF KEVIN GOVER, ON BEHALF OF HON. 

JACOB VIARRIAL, GOVERNOR, PUEBLO OF POJOAQUE, 

SANTA FE, NM; BON. FRANK M. PAISANO, TRIBAL COUNCILMAN, PUEBLO OF SANDIA, BERNALILLO, NEW MEXICO, ACCOMPANIED BY STEPHANIE POSTON, TRIBAL PLANNER; 

DAVID COSS, DIRECTOR, ENVIRONMENTAL PROTECTION DIVISION, NEW MEXICO ENVIRONMENT DEPARTMENT, ACCOMPANIED BY JAMES BEARZI, CHIEF, UNDERGROUND STORAGE TANK BUREAU; SADIE HOSKIE, DIRECTOR, ENVIRONMENTAL PROTECTION ADMINISTRATION, NAVAJO NATION, 

WINDOW ROCK, AZ; AND FRANKLIN DUCHENEAUX, ON BEHALF OF THE LEECH LAKE TRIBAL COUNCIL, CASS LAKE, 

MN 

STATEMENT OF KEVIN GOVER 

Mr. GoVER. Thank you, Mr. Chairman. I will depart completely 

from the written statement that Governor Viarrial has submitted. 

His father, by the way, is quite ill, and he sends his regrets that 

he is unable to be here. 

I think Mr. Bearzi and the New Mexico Environment Department representatives will discuss the particulars of the cooperative 

agreement between the State and the Pueblo of Pojoaque. I just 

want to address a few of the things that we were hearing from the 

earlier panel. 

First of all, the UST Bureau from EPA is claiming they have no 

statutory authority to expend Federal funds for the cleanup of underground storage tanks on Indian reservations, and that is simply 
67 

untrue. The problem is that they have established their own internal policy, an administrative decision-it is not even a regulationit is a policy, that says they will not spend their Leaking Underground Storage Tank Trust Fund money unless it is a life-threatening situation, in essence. 

Now, that is not required by the statute. The authority exists in 

the statute for them to spend the money on the kind of cleanups 

that are needed at Pojoaque and at Sandia. They just choose not 

to do so. And so while we certainly support the amendments to 

RCRA that will require them to spend that money out there, the 

fact is they have the authority now. 

The fact is that under subtitle D of RCRA, the solid waste provisions, they are now going to issue a reg on how tribes are going 

to be treated as States under subtitle D. Apparently they believe 

that under subtitle I they cannot do the same thing, and there is 

simply no basis in the statute for that distinction. They have the 

authority. They just choose not to exercise it. 

The second, you heard a lot of conversation about whether or not 

there is sufficient resources in these agencies to do the needed 

cleanups. The answer is absolutely not. There simply are no resources. 

The Bureau doesn't have enough money, neither does the IHS, 

to go out there and do the cleanups on the open dumps on the reservations that are necessary. Nowhere near it. They don't even 

make requests for that sort of money. And so for them to sit here 

and talk about competing priorities, the answer was no. It was that 

simple. 

EPA does not have money to do open dump cleanups. That much 

was true. But there is an enormous Leaking Underground Storage 

Tank Trust Fund, none of which is being expended on Indian 

lands, and he was sitting here telling you that they don't have any 

resources. The fact is they do. 

There is an enormous appropriation that goes into that trust 

fund, but it is all distributed to the States and the tribes don't get 

any of it. 

And in that connection, in addition to supporting the chairman's 

bill that would amend RCRA to treat tribes as States, there are 

two other needed pieces of legislation that the committee ought to 

consider. The first is Senator McCain's bill which would address 

the problem of open dumps on Indian lands. 

It would establish a moratorium against enforcement of the open 

dumping provision so that the tribes, and by the way, the United 

States, don't end up in dozens and dozens of lawsuits, which they 

will lose, and be held liable under RCRA, so long as the tribe is 

implementing a program to address this open dumping problem 

and to start the cleanup process. Second, it would provide some 

funds-which is the bottom-line problem out there-to do some of 

those cleanups. 

The other piece of legislation that I would suggest the committee 

consider is one that would establish a separate Leaking Underground Storage Tank Trust Fund for the tribes. I don't believe this 

has to be new money at alL I think it can come out of money that 

is already being appropriated to EPA. They just need to be knocked 

in the head and told to spend it on the reservations. 
68 

The one thing that did not come up in the whole conversation is 

that both of these agencies are claiming the authority to regulate 

solid waste and underground storage tanks on the reservations, but 

neither of them wants the responsibility for the cleanups. So they 

are going to be out there trying to bust the tribes, make the tribes 

pay for it with their meager resources, but those agencies claim no 

responsibility, not even the authority to go do the cleanups themselves. So the tribes are getting whipsawed out there and that is 

what that whole conversation was about, Mr. Chairman. 

[Prepared statement of Gov. Viarrial follows:] 
69 

TES'l'D!ONY OF GO\lEROOR JAa>B VIARRIAL, roEBlD OF POJOIIQ(JE, 

BEFORE 'lliE SUBC:X:Ha'l'l'E 00 NATIVE AMERICAN AFFAll!S, 

cx:Hfi'l'I'EE ON NATURAL~. UNITED STATES lUlSE OF REPRESEifl'A.'l 

ocroBER 14, 1993 

My nama is Jacob Viarrial, and I am the Governo~ bf Pojoaque 

PUeblo, a federally recognized Indian tribe whose reservation is located 

north of Santa Fe, New Mexico. I am here today to testify about Pojoaque's 

experiences in dealing with underground storage tank leaks on the Pojoaque 

Reservation, and I will explain why the present federal regulatory scheme 

under RCRA is inadequate and needs to be revised. 

On October 22, 1990, the Pueblo of Pojoaque received a request from 

the New Mexico Environmental Dnprove.ment Division ("EID") for access to 

real property located on the Pojoaque Reservation for the purpose of 

installing groundwater monitoring wells. EID had learned that an 

underground storage tank (''UST") leak had occurred on private land located 

on the Reservation, and it wished to perform an investigation to determine 

the extent of groundwater contamination. The UST leak occurred on property 

located on Highway 285, where two businesses are located. 

On December 13, 1990 , the Pojoaque Tribal council granted EID's 

request for access and authorized EID to enter the Pueblo, install 

monitoring wells, and perform an investigation of the UST leak. The EID 

investigation revealed petroleum hydrocarbon contamination exceeding the 

New Mexico water quality standards set forth in its UST regulations. 

Consequently, on July 31, 1991, EID requested permission to enter the 
70 

Reservation again so that it could install groundwater wells and sample 

various groundwater and soil samples on or near the property. 

Pojoaque was, of course, very concerned that the groundwater 

contamination be investigated and remediated. However, it was also 

concerned about the fact that, under federal law, states have no authority 

to regulate envirorunental matters on Indian lands. Washington Dept. of 

Ecology v. United States EPA, 752 F.2d 1495 (9th Cir. 1985); EPA Policy for 

the Administration of Environmental Programs on Indian Reservations, Nov. 

8, 1984 (states have no environmental regulatory authority over reservation 

lands). Hence, Pojoaque wanted to ensure whatever was done on the 

Reservation, that Pojoaque protected its sovereignty and that it did not 

allow the state to assert jurisdiction on the Reservation that is not 

authorized by law. 

Because states have no authority to regulate UST's on Indian 

reservations, it was up to the federal government, specifically the EPA, 

to do so. Washington Dept. of Ecology v. United states EPA, 752 F.2d 1495 

{9th Cir. 1985). It was our understanding that EPA Region VI was pursuin~ 

the possibility of establishing tribal UST programs but that, because of 

the small number of USTs located on each New Mexico Pueblo, Region VI 

desired to establish a UST program through a consortium of Pueblos. 'Ihe 

tribal UST program proposed by Region VI has never materialized. We were 

told that this was because no funding was ever made available to sustain the 

program. As result, Pojoaque was left in a quandary: the state of New 

Mexico had no authority to regulate USTs on the reservation, and the federal 

government, although it was supposed to regulate OSTs on Indian lands, 

2 
71 

simply did not do so. At that point, Pojoaque and New MeXico EID came up 

with a possible solution to the problem--a Joint Powers Agreement ("JPA") 

between the Pueblo and the state. 

The JPA has not yet been executed, but it is in the final stages of 

negotiation and will likely be executed in the near future. Under the JPA, 

the Pueblo will designate the New Mexico EID to act as the Pueblo's agent 

for the enforcement of the Pueblo's UST laws and regulations. 1 Notably, 

the JPA makes it clear that neither the state nor the Pueblo waive their 

sovereign inurlunity, nor shall the JPA be construed to be a concession of any 

jurisdictional claims on the part of either the Pueblo or the State. 

Although the JPA will provide an important tool and allow USTs to be 

regulated on the Reservation, it is not, in itself, sufficient. Although 

the state has informed the Pueblo that it "may" be willing to spend state 

Leaking Underground Storage Tank Trust Fund {11llJSTTF11 ) monies to aid in the 

clean-up of UST leaks on the Reservation, the JPA does not obligate the 

state to spend any of its llJSTTF monies. Hence; the Pueblo is not 

guaranteed that monies will be available to clean up UST leaks. As far as 

federal monies are concerned, EPA has taken the position that it does not 

have the authority to enter into cooperative agreements with ·tribes with 

respect to llJSTTF monies, and that, therefore, EPA cannot give llJSTTF 

monies to tribes. The end result is that, even with the JPA, the Pueblo may 

be left without any access to LUSTTF monies and will be forced to pay for 

UST clean up costs by itself. 

1 The Pueblo will soon adopt UST regulations that are equivalent 

to the state's UST regulations. 

3 
72 

EPA, of course, has the authority to spend its own monies to remediate 

UST leaks on reservations, thereby avoiding the need of entering into a 

formal WS'l.TF cooperative agreement with a tribe. However, EPA does not so, 

based on its policy of not spending clean-up monies on Indian lands except 

in vecy exceptional, "time critical" situations. 2 The practical reality, 

therefore, is that EPA makes no effort to clean up UST leaks on Indian 

lands, as they do not meet the "time critical" criteria. The JPA will help 

alleviate this problem, but, as noted above, the JPA will not assure that, 

in the event that clean-up of a UST is required, Pojoaque will be granted 

access to the New Mexico WS'l.TF monies. 

For these reasons, we urge this subcommittee to amend the Resource 

Conservation and Recovery Act ("RCRA") so that (1) tribes may be treated as 

states and (2} tribes are provided direct access to the Leaking Underground 

storage Tank Trust Fund. Although we believe trwes and states can benefit 

from cooperative agreements with regard to UST program implementation, and 

that such agreements should be encouraged, these agreements will likely not 

be sufficient. States are not required to give IlJSTrF funds to tribes, an:i 

there is no way to insure that tribes receive their fair share other than 

through Congressional action. 

Further, as a more fundamental objection to the current way. that EPA 

administers UST programs, tribes are sovereign entities, and the federal 

government, which owes a duty of trust to Indian lands, should recognize 

2 Office of Solid Waste and Emergency Response Directive 9610.9, 

titled "Final Interim Guidance for Conducting Federal Corrective Actions 

on Indian lands. " 

4 
73 

this fact and provide tribes access to IIJS'ITF monies directly. Tribes, 

consequently, should J:lQ!;; have to negotiate with states to receive IIJSTI'F 

monies, as the federal government is obligated to deal with each tribe on 

a goverrnnent-to-government basis. 

Indian tribes' inability to obtain aocess to IIJS'ITF monies is 

especially unfair given that Indian tribes have been held liable under 

RCRA for clean up costs. Blue Legs v. United states Environmental 

Protection Agency, 668 F. Supp. 1329 (D.S.D. 1987). It is inequitable to 

hold tribes liable under RCRA for clean-up costs on the one hand and, on 

the other hand not provide tribes with any funds or technical assistance 

to administer UST programs on their reservations. EPA provides states with 

enormous sums of money to administer UST programs. Tribes have received 

virtually no funds, and it is unfair to hold them liable as if they had the 

sa:me technical and financial assistance as states. 

In conclusion, I believe everyone on this committee agrees with me 

when I say that environmental dangers on Indian reservations, especially 

UST leaks, have largely been ignored by the federal government.. 'lhis cannot 

continue, as inaction threatens the safety of both Indians and non-Indians 

on and near the reservatic;ms. It is time, therefore, for Congress to take 

action. We urge Congress to amend RCRA so that Indian tribes can be treated 

as states. This would allow tribes to take over primary responsibility for 

enforcing UST programs on the reservations, and, just as :iJ:nportant, it 

would make tribes eligible to receive financial and technical assistance 

from the EPA. We also urge Congress to take action to require EPA to live 

up to its obligations under RCRA and actively to administer UST programs on 

5 
74 

Indian lands, rather than ignoring UST problems on reservations except in 

exceptional "time critical" circumstances. UST leaks on Indian 

reservations are, unfortunately, an ever growing prcl:llem, and the federal 

government, as the trustee of Indian lands, has both the moral and legal 

obligation to ensure that these leaks are cleaned up as. soon as possible. 

I would be happy to answer any questions you might have. 
75 

Mr. RICHARDSON. Mr. Paisano. 

STATEMENT OF HON. FRANK M. PAISANO 

Mr. PAISANO. Mr. Chairman, members of the committee, my 

name is Frank Paisano. I am here as a council member for the 

Pueblo of Sandia, a Federally-recognized Indian tribe whose reservation is located north of Albuquerque, New Mexico. 

I am here to testify about Sandia's experience in dealing with 

both the Bureau of Indian Affairs and the U.S. Environmental Protection Agency with respect to an underground storage tank leak 

on the Sandia reservation. 

Sandia has been very disappointed in the lack of response by 

these agencies, especially the EPA, and we urge members of this 

subcommittee to introduce legislation that will assure that UST 

leaks on the Indian lands are cleaned up effectively and promptly. 

Specifically, we request that the Resource Conservation and Recovery Act be amended so that tribes may be treated by EPA as 

States, that EPA be explicitly au.thorized to enter into cooperative 

agreements with the tribes to give them Leaking Underground 

Storage Tank Fund monies, and that EPA will be directed to clean 

up all the UST leaks on the Indian lands promptly. 

Finally, because the UST leaks on the Sandia Indian Reservation 

should be remediated as soon as possible and Sandia cannot afford 

to wait until RCRA is formally amended, we request that the members of this committee support our request to the EPA for $100,000 

to conduct a demonstration project on leaking UST cleanups and 

establishment for tribal UST enforcement capabilities. 

Let me give you a brief background as to Sandia's UST leak and 

its dealings with the BIA and EPA. In 1961, Sandia leased land to 

a non-Indian for a term of 25 years. The lease was approved by the 

Bureau of Indian Affairs. 

The lessee installed USTs and used the land to operate a gas station. The lessee subsequently assigned its lease and the assignee 

later assigned the lease to another assignee. To the best of our 

knowledge, all monies continued to be used on the land to operate 

a gas station and to store petroleum in the USTs. Sandia had no 

involvement whatsoever in the operation of the stations or the 

tanks, or in the profit derived therefrom. 

In 1991, the then-current lessee vacated the land and Sandia 

hired a contractor to remove the USTs. In accordance with the Federal environmental regulations, the consultant performed tests 

after the USTs were removed to determine whether there had been 

any leaks. Unfortunately, contamination had occurred. 

Sandia then hired a consultant to be begin cleanup measures. A 

preliminary study was completed and sent to EPA and BIA in late 

1991. The study concluded that a cleanup would cost approximately $250,000-$250,000 would be required. Sandia sent letters to BIA 

and EPA requesting that both agencies (1) provide cleanup funds 

to Sandia or (2) aid Sandia in its efforts to locate and file legal actions against the lessees who caused the UST leaks. 

In 1993, Sandia hired a second environmental consultant, Dames 

& Moore, to complete a hydrogeologic investigation report. The report concluded that there was a significant amount of benzene contamination from the UST leaks and that this contamination was 
76 

spreading. Dames & Moore concluded that a fairly extensive reclamation plan was needed. 

However, as the result of a very recent visit to the site and consultation with BIA technical staff, Dames & Moore now concludes 

that a less intrusive and less expensive remediation plan is appropriate. However, even the less expensive remediation plan will cost 

a minimum of $40,000. 

The response of the EPA has been to do virtually nothing. With 

respect to pursuing actions against Sandia's former lessee, EPA 

headquarters told our attorneys in Washington that Region VI was 

ready, willing, and able to pursue actions against the former lessees, and that all Region VI needed was a list of those lessees. 

Sandia promptly provided this list to Region VI. However, to the 

best of Sandia's knowledge, EPA has made no efforts whatsoever 

to locate the lessees and seek cleanup costs from them. 

Further, EPA has constantly refused to provide any cleanup or 

funds for technical assistance to Sandia. Through a series of letters, EPA has contended that (1) it is not authorized to spend any 

Leaking Underground Storage Tank funds on Indian lands; (2} it 

is not allowed to spend other funds it administers to clean up UST 

leaks on Indian lands except in time critical conditions; and (3) 

Sandia is the owner of the USTs and thus subject to liability under 

RCRA, and that EPA therefore is not required to provide cleanup 

funds to Sandia. 

We believe that Region VI's positions are not supported by law 

and that EPA's unwillingness to take action to clean up the UST 

leaks on the Sandia reservation is inexcusable. 

Ms. POSTON. I am going to go ahead and finish reading for Councilman Paisano, Mr. Chairman. 

Mr. Chairman, Sandia has responded diligently and effectively to 

the UST leak on the reservation. We have done so despite receiving 

no meaningful assistance from EPA. Meanwhile, EPA threatens us 

with liability even though we had nothing to do with the operation 

of the tanks. 

In short, EPA claims complete authority over tribes having underground storage tanks on their lands, but rejects any obligation 

to these tribes. If Sandia's experience is any example there are dozens, if not hundreds, of leaking USTs on Indian lands that will not 

be addressed by EPA until Congress forces EPA to do so. 

We would be happy to answer any questions. 

Mr. RICHARDSON. Thank you very much. 

[Prepared statement of Ms. Poston follows:] 
77 

~ OF STEPHINE l'OS'l.U{, 

ruEBID OF SANDIA 'I'RIBAL PUINNER 

BEFORE THE SUBCXHUTl'EE 00 NATIVE AMERICAN AFFAIRS, 

a::MITITEE 00 NA'lURAL RESCXlR.CES, UNITED S'I2\TES IDJSE OF REPRESENTATIVES 

OCTOBER 14, 1993 

Mr. Chairman and members of the Committee, my name is Stephine Poston, 

and I am the tribal planner for the Pueblo of Sandia ("Sandia"), a federally 

recognized Indian tribe whose reservation is located north of Albuquerque, 

New Mexico. I am here to testify about Sandia's experience in dealing with 

both the Bureau of Indian Affairs ("BIA") and the United States 

Envirorunental Protection Agency ("EPA") with respect to an undergroun::l. 

storage tank ("UST") leak on the Sandia Reservation. Sandia has been very 

disappointed in the lack of response by these agencies, especially the EPA, 

and we urge members of this subcommittee to introduce legislation that will 

assure that UST leaks on Indian lands are cleaned up effectively an::l. 

promptly. 

Specifically, we request that the Resource Conservation and Recovery 

Act ("RCRA") be amended so that tribes may be treated by EPA as states, that 

EPA be explicitly authorized to enter into cooperative agreements with 

tribes to give them Leaking Underground Storage Tank Trust Fund ("IDSTTF") 

monies, and that EPA be directed to clean up all.UST leaks on Indian lands 

promptly, rather than pursuant to its internal policy of cleaning up usr 

leaks on Indian lands only in "time critical" situations. Finally, because 

the UST leaks on the Sandia Reservation should be remediated as soon as 

possible and Sandia cannot afford to wait until RCRA is formally amended, 

1 
78 

we request that the members of this Committee support our request to EPA for 

$100,000 to conduct a demonstration project on leaking UST clean-ups and 

establishment of tribal UST enforcement capabilities. 

Let me give you a brief background as to Sandia's UST leak and its 

dealings with the BIA and EPA. In 1961, Sandia leaSErl land to a non-Indian 

for a term of twenty-five years. The lease was approved by the Bureau of 

Indian Affairs ( 11BIA11 ). The lessee installed USTs and tisOO the land to 

operate a gas station. The lessee subsequently assigned its lease, and the 

assignee later assigned the lease to another assignee. To the best of our 

Jmowledge, all assignees continued to use the land to operate a gas station 

and to store petroleum in the USTs. Sandia had no involvement whatsoever 

in the operation of the stations or the tanks, or ·in the profit derived 

therefrom. In 1991 the then-current lessee vacated the· land, and Sandia 

hired a contractor to reJrDVe the USTs. In accordance . with federal 

environmental regulations, the consultant perfonned tests after the USTs 

were removed to determine whether there had been any leaks. Unfortunately, 

contamination had occurred. Sandia then hired a consultant to begin clean 

up measures. A preliminary study was completed and sent to the EPA and BII\ 

in late 1991. The study concluded that a clean-up costing approximately 

$250,000 would be required. Sandia sent letters to BIA and EPA, requesting 

that both agencies either (1) provide clean-up funds to Sandia or (2) aid 

Sandia in its efforts to locate, and file legal actions against, the lessees 

who cauSErl the UST leaks. 

In 1993, Sandia hired a second envirornnental consultant, Dames & 

Moore, to complete a hydrogeologic investigation report. That report 

2 
79 

concluded that there was a significant amount of benzene contamination from 

the UST leak and that this contamination was spreading. Dames & Moore 

concluded that a fairly extensive reclamation plan was needed. However, 

as the result of a very recent visit to the site and consultation with BIA 

technical staff, Dames & Moore now concludes that a less intrusive and less 

expensive remediation plan is appropriate. However, even the less 

expensive remediation plan will cost a minimum of $40,000. 

The response of the EPA has been to do virtually nothing. With 

respect to pursuing actions against Sandia's former lessees, EPA 

Headquarters told our attorneys in Washingtcn that Region VI was ready, 

willing, and able to pursue actions against the former lessees, and that all 

Region VI needed was a list of those lessees. Sandia promptly provided this 

list to Region VI. However, to the best of Sandia's lmowledge, EPA has made 

no efforts whatsoever to locate the former lessees and seek clean up costs 

from them. FUrther, EPA has consistently refused to provide any clean-up 

funds or technical assistance to Sandia. Through a series of letters, EPA 

has contended that (1) it is not authorized to spend any Leaking Underground 

Storage Tank Trust Funds ("IDSTTF") on Indian lands; (2) it is not allowed 

to spend other funds it administers to clean up UST leaks on Indian lands 

except in "time critical" situations; 1 and (3) Sandia is the "owner" of the 

USTs, and thus subject to liability under RCRA, and that EPA, therefore, is 

not required to provide clean-up funds to Sandia. We believe that Region 

1 The Term "time critical" is defined to mean an inunediate or 

near-term (within six months) substantial threat to human health or the 

envirornnent. See EPA Office of Solid Waste and Emergency Response 

("OSWER") Directive 9610.9. 

3 
80 

VI's positions are not supported by law and that EPA's unwillingness to take 

action to clean up the UST leaks on the Sandia Reservation is inexcusable. 

First, EPA Region VI's position that Sandia is not eligible to receive 

any monies from the Leaking Underground Storage Tank Trust FUnd ("UJSTl'F") 

is incorrect. Region VI contends that, because Indian tribes are treated 

as "municipalities" under RCRA, they are not eligible to enter into 

cooperative agreements with EPA to receive WSTrF monies. H=ever, this 

is an urmecessarily narr= reading of RCRA. In Washington Dep 1t of Ecolog~ 

v. U.S. EPA, 752 F.2d 1465 (9th Cir. 1985), the Ninth Circuit ruled that the 

EPA, when administering environmental statutes on Indian reservations, has 

substantial discretion, and that these statutes must be read in light of the 

federal government's duty to promote tribal self-government. Id. at 1471. 

Hence, even if an environmental statute does not explicitly allow EPA to 

delegate some responsibilities to Indian tribes, EPA is authorized to do 

so, if this is consistent with the promotion of tribal self governance. Id.._ 

at 1472. See also Nance v. EPA, 645 F.2d 701 (9th Cir. 1981) (EPA allowed 

to delegate authority to Indian tribes under the Clean Air Act, although the 

Clean Air Act did not explicitly allow EPA to do so). Moreover, EPA's own 

Office of Solid Waste and Emergency Response {"OSWER") has drafted a rule 

allowing tribes to be treated as states with respect to RCRA. 2 In that 

Draft Directive, OSWER encourages EPA Regional offices to enter into 

tribal-state agreements to implement UST prograros, and notes that program 

development has already begun in Region 9 with the Navajo Nation. RCRA does 

2 Draft OSWER Directive 9610.15. 

4 
81 

not expressly authorize EPA to enter into such agreements with tribes. 

However, OSWER obviously recognizes that federal case law grants EPA 

substantial discretion with respect to how it administers RCRA on 

reservations. Region VI's contention that it has no authority to spend 

llJS1TF monies on Indian lands, therefore, is not the law. To the extent 

that there is any confusion on this issue, we request this Committee to 

support legislation that amends RCRA and makes it absolutely clear that 

EPA is authorized to provide UJS1TF funds directly to tribes. 

Second, EPA's "time =itical" policy with respect to the clean up of 

UST leaks on Indian lands has no basis in law. RCRA makes it clear that EPA 

has the responsibility of administering UST programs on Indian lands. In 

fact, OSWER Draft Directive 9610.15 states that when "it is not possible for 

the tribe to develop a self sustained [USTJ program or to negotiate a 

tribal-state agreement, the Region will continue to· be responsible fer 

program implementation." (Emphasis added). EPA's "time-critical" policy, 

however, completely ignores EPA's obligation to administer UST programs on 

Indian lands and instead directs EPA Regional offices to act only in 

extremely exceptional circumstances. Thus, the vast majority of UST leaks 

on Indian lands (which do not meet the "time critical" criteria) are left 

untreated. This is a far cry from EPA's obligation under RCRA to administer 

comprehensive UST programs on reservations. EPA's "time critical " policy, 

therefore, must be changed. We urge this subcommittee to support 

legislation that effectively overrules EPA's "time critical" policy with 

respect to Indian lands and requires EPA to administer full-scale, 

comprehensive UST programs on Indian reservations, which includes the 

5 
82 

obligation to clean-up all UST leaks. 

Finally, we believe that Region has taken the position that Sandia is 

an "owner" of the UST's solely as a pretext for avoiding any responsibility 

for rendering any financial or technical assistance to Sandia. Although 

Sandia owns the land where the USTs were located, Sandia never owned the 

USTs themselves during the times that the USTs were in operation. Further, 

Sandia had no control over, or any participation in, thema,intenance of the 

USTs or the storage or dispensing of the petroleum. The term "owner" in 

RCRA is defined as follows: "any person who O"'ll'lS an underground storage tan!s; 

used for the storage, use, or dispensing of regulated substances." 42 

u.s.c. §6991 (3) (A) (underlining added). Mere ownership of land where the 

USTs are located, absent any ownership or control over the USTs themselves, 

does not make the land owner liable under RCRA. Rather, the "owner" :must 

own the USTs and use them for the storage, use, or dispensing of regulated 

substances. At the point when the USTs may have become Pueblo property by 

virtue of the expiration of the leases in question, the tanks. were not "used 

for the storage, use, or dispensing of regulated substances." EPA 1 s 

contention that Sandia is an "owner" of the USTs, therefore, is net 

accurate. In fact, if being a landowner, in itself, is enough to be an 

"owner" of a UST, then the federal government itself would be liable in 

every case where a UST leak occurs on Indian lands, since it holds such 

lands in trust. This could not have been the intent of congress. To the 

extent that there is any ambiguity on this matter, we urge this Committee 

to support amendments to RCRA that make it clear that Indian tribes do not 

become "owners" of USTs, and thus subject to RCRA liability for clean-up 

6 
83 

costs, unless the tribes have control over, or participate in, the 

maintenance or operation of the USTs. 

EPA 1 s refusal to provide any financial or technical assistance to 

Sandia is inexcusable, given that states have received enormous sums from 

EPA over the past decades to implement UST programs. To add insult to 

injury, EPA further contends that the tribes are subject to liability under 

RCRA. This is grossly unfair. If tribes are to be held liable under RCRA, 

they should, at the very least, like states, receive sufficient financial 

and technical assistance so that they have a realistic opportunity to 

address UST problems in an adequate manner. 

As you know, many federal enviromnental statutes, such as the Clean 

Air Act, 42 u.s.c. § 7474 (1988), the Clean Water Act, 33 u.s.c. §1377 

(1988), and the Safe Drinking Water Act, 42 u.s.c. § 300j-11 (1988), have 

been amended to allow Indian tribes to be treated as states. This allows 

tribes to take over primary responsibility for enforcing the various 

environmental statues, issuing permits, etc. Moreover, if a tribe is 

treated as a state, the tribe is eligible to receive financial and technical 

assistance from the EPA to carry out the regulatory and enforcement 

functions required by the environmental statutes. The most direct way of 

helping to assure that tribes are provided with sufficient financial and 

technical assistance to deal with UST problems is to amend RCRA to allow 

tribes to be treated as states. 

With respect to BIA 1 s role in this case, our attorneys have sent 

several letters to the Albuquerque Area Director, seeking clean-up funds 

and assistance in pursuing actions against Sandia 1 s former lessees. The 

7 
84 

Albuquerque Area office has done little to aid Sandia, and it has refused 

to say what the BIA intends to do, if anything. Also, our attorneys 

contacted George Farris, the Director of Environmental Services at BIA's 

central office in Washington, D.C. Mr. Farris has been more responsive than 

the Albuquerque Area office; he came to the Sandia Reservation on September 

22, 1993, inspected the UST site, and offered technical advice on how to 

clean up the leak. We very much appreciate this help. However, we are 

disappointed that, until Mr. Farris' recent visit, the Albuquerque Area 

Office had ignored our requests for assistance, even though, as far as we 

knew (based on the results of the initial investigation performed by 

Sandia's first environmental consultant) , the UST leak was spreading and 

was going to require extensive, expensive remediation efforts. 

we believe that the BIA, the agency primarily responsible for carrying 

out the federal government's trust responsibility to Indian tribes, is 

obligated to assist Sandia in its clean-up efforts. In addition to the 

general trust obligations owed to Sandia by the federal government, the 

Snyder Act, 25 u.s.c. § 13, imposes "affirmative obligations on BIA to 

relieve distress and conserve Indian health." Blue legs v. United State§ 

Bureau of Indian Affairs, 867 F.2d 1094 (Sth Cir. 1989). Moreover, if 

Sandia is liable under RCRA as an "owner" of the USTs merely because it 

owns the land where the USTs were located, the BIA is also liable for the 

same reason. For all these reasons, BIA must play a more active role in 

responding to UST leaks on Indian lands. 

As far as the interplay between EPA and BIA is concerned, we believe 

that EPA, because of its obvious expertise in environmental matters and its 

8 
85 

direct statutory obligations under RCRA, is the federal agency primarily 

responsible for aiding Indian tribes in cleaning up UST leaks. '!his is 

especially true given that BIA, Unlike EPA, does not have any funds 

appropriated for clean-up of UST leaks. However, as trustee of Indian 

lands, the BIA is also responsible, and it should be required to provide 

assistance to tribes. BIA needs funds to accomplish this task, however, and 

we therefore urge this Committee to support legislation that would 

authorize monies to be appropriated to the BIA for.the express purpose of 

assisting tribes in cleaning up UST leaks on Indian lands. 

In conclusion, we would like to emphasize that UST leaks on Indian 

reservations pose the .same environmental threats on reservations that they 

do off-reservation, and it is unjust, as well as environmentally 

irresponsible, to ignore these threats. It is irresponsible because, as 

every :member of this Committee is well aware, Indian tribes are among the 

pcorest areas in the country; few if any tribes have the financial or 

teclmical capability to clean up UST leaks on their own. Hence, it is 

critical that tribes be provided access to IDST Trust F\lnd monies, as well 

as other financial and technical assistance. It is unjust not to provide 

such assistance to tribes. UST leaks cannot be allowed to remain untreated 

and allowed to spread, while at the same time the EPA and Congress provide 

millions of dollars per year to states to clean up UST leaks off the 

reservations. Moreover, UST leaks often contaminate groundwater supplies 

off the reservation, thus making this a problem that everyone, both Indians 

and non-Indians, must address. It is imperative, therefore, that 

mechanisms be put in place to allow tribes to clean up UST leaks as soon as 

9 
86 

possible. We therefore urge this CCllllllrittee to support legislation that 

would accomplish the following: (1) amend RCRA so that tribes are 

authorized to be treated as states, thus explicitly allowing them to 

receive financial and technical assistance from the EPA; (2) clarify RCFA 

so that EPA is explicitly authorized to enter into cooperative agreements 

with tribes to give them Leaking Undergrourrl Storage Tank Trust FUnd 

monies; (3) amend RCRA to make it clear that, unless a tribe is treated as 

a state, receives IIJSTI'F ronies, and is administering its own UST program 

on the reservation, EPA is required to clean up all UST leaks on Indian 

lands in a prompt manner, thus overruling EPA's internal policy of spending 

money to clean up UST leaks on Indian lands only in "time =itical" 

situations; (4) amend RCRA to make it clear that Indian tribes are not 

"owners" of USTs within the meaning of RCRA unless tribes have control aver 

or participate in the use, storage, or dispensing of the petroleum or other 

regulated substances; and (5) that BIA be appropriated funds to carry out 

its trust responsibilities over Indian lands and provide useful, prompt 

assistance to tribes in their clean-up efforts. 

Finally, because the UST leaks on the Sandia Reservation should be 

remediated as soon as possible and Sandia cannot afford to wait Until RCFA 

is formally amended, we request that the members of this committee support 

our request for $100,000 from EPA so that Sandia can rernediate the UST leak 

on the Reservation. 

Mr. Chairman, Sandia has responded diligently and effectively to the 

UST leak on our reservation. We have done so despite receiving !lQ 

meaningful assistance from EPA. Meanwhile, EPA subtly threatens us with 

10 
87 

liability even though we had nothing to do with the operation of the tanks. 

In short, EPA claims complete authority over tribes having USTS on their 

lands, but rejects any obligation to these tribes. If Sandia's experience 

is any example, there are dozens if not hundreds of leaking USTs on Indian 

lands that will not be addressed by EPA until Congress forces EPA to do so. 

I would be happy to answer any questions you might have. 
88 

Mr. RICHARDSON. Mr. Coss. 

STATEMENT OF DAVID COSS 

Mr. Coss. Thank you, Mr. Chairman. 

My name is David Coss. I am director of the Environmental Protection Division at the New Mexico Environment Department. 

Secretary Espinosa asked me to apologize for not being able to 

be here in person, but to assure you that our Department wants 

to cooperate in every way possible in these matters. 

I sure do appreciate the opportunity to be here with many of my 

neighbors from New Mexico to speak to these important environmental issues. Although the jurisdictions are very different, we are 

all neighbors in New Mexico and problems with underground storage tanks and solid waste dumps affect all of us across these lines. 

I think it is safe to say that for the part of the State of New Mexico and Native American governments in New Mexico our goals are 

the same, and that is to see that violations of underground storage 

tank regulations and solid waste disposal regulations are controlled, and that existing contaminated sites are restored in accordance with the national standards. 

We see some issues from a State perspective that we think are 

important to discuss. The first is jurisdiction. The State of New 

Mexico generally has no jurisdiction on tribal lands, so we need 

agreements, government-to-government agreements between our 

State government and the Native American governments. 

The second issue is procedural. We need to carefully lay out 

when we enter into these agreements who is responsible for carrying out specific tasks under these agreements. 

And third, and perhaps very importantly, is resources. There 

needs to be adequate resources for the tribal governments to address these problems. The State of New Mexico is looking at various ways that we can use our resources of the State to address 

these problems, but the resource issue is a very critical one. The 

State of New Mexico is very keen that the tribes be provided adequate resources and that we don't be pushed into any type of situation where we are in competition with our neighbors for resources. 

With regard to leaking underground storage tanks, these are an 

extremely large water quality problem in New Mexico affecting 

groundwater. That is the second leading cause of groundwater contamination in New Mexico, and groundwater in New Mexico is our 

primary source of drinking water. 

New Mexico has become, or is a national trendsetter in dealing 

with underground storage tanks. Our State program was the second to be approved by the Environmental Protection Agency under 

RCRA subtitle I. In addition, the State of New Mexico has enacted 

the Groundwater Protection Act and it provides approximately $11 

million a year for the cleanup and control of leaking underground 

storage tanks. 

However, New Mexico is not authorized under its EPA approval 

or under the State law to operate the State program, the Groundwater Protection Act, on Indian lands, and what we see happening 

in New Mexico at this point in time is when lessees of underground 

storage tank facilities break their lease they leave the Native 
89 

American governments stuck with this liability with no real good 

way to take care of it. 

Mr. RICHARDSON. Mr. Coss, let me apologize to you. I have to run 

and make this vote. 

Let me just announce that Mr. Faleomavaega is on his way back 

and he will chair in my absence. And we will have additional questions for the record for all of you. 

We will recess for about 5 minutes while Mr. Faleomavaega 

makes his way back to the hearing. 

Excuse me. 

[Recess]. 

Mr. FALEOMAVAEGA. The hearing will come to order. 

I first would like to offer my personal and special welcome to a 

very dear friend who has joined us on the panel this morning, Mr. 

Frank Ducheneaux. I would like to make it known for the record 

that this gentleman has done a fantastic job as he had served previously not only as staff director but as staff counsel for this committee in dealing with Native American affairs. And I want to note 

that for the record and welcome him personally. 

We will continue with Mr. Coss' testimony. 

Mr. Coss, please proceed. 

Mr. Coss. Thank you, Mr. Chairman. 

I was about to describe what we think is going to be a landmark 

agreement in New Mexico between the State of New Mexico Environment Department and the Pueblo of Pojoaque regarding an underground storage tank cleanup. We think this is a mechanistn 

that we need to have because we haven't been able to find any 

other way to address cleanup of this particular underground storage tank problem. 

Under this proposed joint powers agreement, the Pueblo of 

Pojoaque will enact underground storage tank rules no less stringent than the State of New Mexico's. It will do this under its own 

sovereignty, not under any authorization from RCRA. 

The two governments then will name joint personnel to regulate 

and enforce the Pueblo's underground storage tank rules, and then 

when the Pueblo is essentially consistent with the New Mexico requirements under the Groundwater Protection Act the Groundwater Protection Act fund can be used to fund cleanups on Pueblo 

lands. 

We find that this is at least one viable way of addressing the fact 

that the Indian tribes have fallen through the cracks on RCRA and 

are not being provided resources adequate to the task from the 

Federal level. 

We are very proud of this agreement and are very anxious to 

enter into it. We need to point out that this is an agreement between the State of New Mexico and the Pueblo of Pojoaque and is 

in no way covered by RCRA. 

Turning over to another important environmental issue, that is, 

solid waste and open dumping, again the State does not have jurisdiction to enforce our programs or our regulations under State law 

on Indian lands, but we are very busy in the planning and executing of solutions to solid waste problems in New Mexico that do involve government-to-government cooperation in New Mexico. 
90 

Some examples of what we have been doing in New Mexico as 

early as 1986, we entered into a joint powers agreement with Santa 

Clara Pueblo for the investigation and enforcement of solid waste 

rules on those tribal lands. We are in negotiations now with the 

Pueblo of Nambe and many other local governments in northern 

New Mexico on a regional landfill that would be on or near the 

Pueblo ofNambe. 

Several agreements have been entered into between the New 

Mexico county governments and Indian Health Service to help fund 

the joint construction of solid waste transfer stations in New Mexico, and in the last session of the New Mexico legislature, $250,000 

was appropriated to the Environment Department to assist Eight 

Northern Pueblos in New Mexico with establishing solid waste and 

water quality programs. 

So we are very active in this area. We see that there is a strong 

need and will continue to be a strong need for the State government to act in partnership with tribal governments in New Mexico 

to address these problems. We find that resources are a problem 

and we are trying to address these as best as we can at a State 

level. 

We would think it is important, if the Congress is looking at 

amending RCRA, that they recognize the resources issue, and that 

the States not be put into a position of needing to compete with 

tribal governments for resources and, that they recognize that we 

have attempted and are, we believe, in New Mexico establishing 

very strong and positive government-to-government relations and 

that any amendments to the Act recognize these and encourage 

these kinds of agreements and relationships between our State government and the tribal governments in New Mexico. 

Thank you very much, Mr. Chairman. 

[Prepared statement of Mr. Coss follows:] 
91 

STATBMBH OF DAVID COSS 

DIRECTOR, BRVIROJ.IMB!ITAL PRO!fBC!fiOB DIVISIO!I 

lfB'K MBXICO 8RVIROJ.IMBH D8PARTMIUIT 

BBPORI: TIIB llOUSiil COMMITTBB 0!1 !IATURAL RBSOURCBS 

SU8COMMITTBB 011 NATIVE AKBRICAII AFFAIRS 

OCTOBBR U, 1993 

Good morning, Mr. Chairman and distinguished members of the 

committee. I am David Coss, Director of the Environmental 

Protection Division of the New Mexico Environment Department. Our 

Secretary of Environment, Judith M. Espinosa, regrets that she is 

unable to attend today's hearing. She asked me to send her best 

regards and to assure you that we will as.sist your efforts in 

every way possible. 

I appreciate the opportunity to appear before you this 

morning to discuss two issues which are of critical importance to 

the citizens of New Mexico in general, and residents of tribal and 

pueblo lands in particular: leaking underground storage tanks on Indian lands and open dumping of solid waste on Indian lands. 

Before addressing the details of those issues, let me briefly 

describe the organization and mission of the New Mexico 

Environment Department. We became a separate cabinet agency in 

1991, having previously been a division of the Health and 

Environment Department. Our mission is to preserve, protect, and 

perpetuate New Mexico's environment for present and future 

generations. We have 551 employees dedicated to this task. 

The goal of my division, the Environmental Protection 

Division, is to ensure protection and enhancement of the state's 

natural environment, public health, and safety, through the 

administration of programs for management of solid and special 

waste, air quality, underground storage tanks, and occupational 

health and safety. 

We are pleased to participate in these proceedings. The 

issues being discussed are important to the health and safety of 

individuals who reside on Indian lands and beyond reservation and 

pueblo boundaries. It is in our best interests, as the state 

government, to work with the governments of the tribes and pueblos in our state to solve problems which are not constrained by lines on a map. 

We recognize the pivotal role of environmental protection in 

Native American culture and tradition. In fact, American society in general owes a great deal to Native American communities when 

it comes to living in harmony with nature, and undoubtedly there 

is much more we can learn. In that respect, cooperation between our governments is beneficial. 

There are 23 federally recognized tribes and pueblos with 
92 

TI:S1'IMOH OP' DAVID COSS 

lfE1f MBXICO BJIVIRORMBft DBPARTMBRT 

BBP'ORB 1'Bll BOUSB COJIMI1'1'BB 011 IIAruRAL RBSOURCBS 

8UBCOJIMIT1'BB OB IIATIVB AMBRICAJl AP'PAIRS 

OCTOBBR 1,, 1993 

lands in New Mexico. The Navajo Nation is only partly in New 

Mexico. Approximately 105,000 enrolled tribal members 

(approximately 6.5% of the state's population) live within the 

state's borders; approximately half are members of the Navajo Nation. Indian lands encompass approximately 12,200 square miles, 

which is roughly 10% of the total land area of New Mexico. 

Although tribes and pueblos are distinct political entities, they are also part of New Mexico, and their communities are part of all 

New Mexican communities. 

Increased awareness of environmental problems prompted 

Congress to pass a host of laws designed to protect the 

environment. The National Environmental Policy Act, Clean Air 

Act, Clean Water Act, and Resource conservation and Recovery Act 

(HRCRAu) have all set environmental quality standards and have 

created mechanisms for delivery of regulatory programs. It is 

important to note that recent amendments to environmental 

legislation have treated Indian tribes as states for purposes of 

implementing some federal regulations under the Clean Air and 

Clean Water Acts, but not under RCRA. 

There are several core issues, from the State's perspective, related to the topics of today's hearing. I believe it is safe to 

say that the goal of all parties concerned with the issues of open dumping of solid waste and leaking underground storage tanks is to see that violations cease and that existing sites are restored in 

accordance ~ith national standards. How New Mexico can be 

involved in this process is a subject we are prepared to discuss 

in greater detail with the appropriate officials of tribal or pueblo and federal governments. 

Three basic issues of concern are obvious. If the New Mexico 

Environment Department is to be involved in a substantial way, these issues should be addressed early on in the discussions: 

1. Jurisdictional - Regulatory jurisdiction on Indian lands 

currently resides with the tribes or pueblos and the federal 

government. In order for the state to play a significant role, 

formal agreements between the state and individual Native American 

governments will have to be negotiated. An agreement currently being negotiated between New Mexico and the Pojoaque Pueblo on UST 

issues is an example of how by working together, both parties can 

2 
93 

TBSTIMORY OP' DAVID COSS 

lfJnf MBX:ICO BRV:IROIOCBlfT DBPARTMBlfT 

BBI"ORB '.rBB BOUSB COJOU'.rTBB OR RA'fURAL RBSOURCBS 

SUBCOMM:I'.r'fBB OR RAT:IVB AMBR:ICAJf AFFAIRS 

OC'fOBBR U., 1993 

come up with creative solutions to overcoming legal and regulatory obstacles to comprehensive environmental protection. 

2. Procedural - Any joint agreement needs to delineate 

specific responsibilities of each party involved in planning, implementing, and enforcing solutions to existing problems, as well as the role each party might play in future prevention and 

enforcement. As will be discussed later, the State-Pojoaque 

agreement does just this. 

3. Resources - Joint agreements must also specify the 

funding source for required investments, personnel costs, and 

operations and maintenance costs. Any major effort on the state's 

part, particularly in the solid waste arena, would require additional staff and funding. Federal funding directed toward 

Native American governments must not be provided through decreases 

in federal funding to the State. 

Underground storage tanks ( "UST 's") are critical to fuel 

distribution in New Mexico and on Indian lands. Most UST's in New 

Mexico contain gasoline or other motor fuels; those on Indian 

lands are no exception. Most of the UST's on Indian lands are owned by non-tribal members. OVer 100 such UST's at 59 facilities 

have been registered with the State; no doubt many more exist. 

Leaking UST's pose a grave threat to the environment in New 

Mexico. Over 90% of New Mexicans, including tribal members, rely on ground water for their drinking water, and leaking UST's are the second most frequent cause of ground water contamination in 

New Mexico. Drinking water supplies in many New Mexico 

communities have been shut down because of gasoline contamination 

emanating from UST's. This is the main reason why New Mexico has 

implemented a vigorous UST regulatory program. 

New Mexico's UST program is a national trendsetter. New 

Mexico was the second state in the country to receive approval from the u.s. Environmental Protection Agency (uEPAu) to implement the federal UST program under RCRA Subtitle I. It is fully staffed with personnel extensively trained in the technical 

aspects of cleanup, leak detection and operation of UST's. It 

leads the nation in leak detection compliance rates, has the first 

and only UST field citation program in the country, and is a 

3 
94 

:t'BSTIMOK! OF DAVID COSS 

litBW MEXICO BlfVIROI.IIMBR'.r DBPARTMBBT 

BBPORB TB1!1 HOUSB COMKI'lTIIB 08 IIATURAL RIISOURCBS 

SUBCOMMITTBB OR BATIVB AHBRICAB AFFAIRS 

OCTOBBR 14, 1993 

leader in recovering federal Leaking Underground Storage Tank 

Trust Funds from responsible parties. 

Under New Mexico's UST program, almost any UST owner or operator, including municipalities, can receive state assistance 

in cleanup. New Mexico receives some federal funding each year to 

finance cleanup on high priority sites, that is, those sites where a severe impact to human health and safety is present. Because 

this federal funding is inadequate and the costs of cleanup and 

complying with federal financial responsibility regulations put 

businesses in serious financial jeopardy, our Legislature has 

enacted a law in 1990 that provides over $11 million per year to 

reimburse almost any tank owner for their costs of cleanup, 

provided the owner is in compliance with the New Mexico's UST 

Regulations. The law also authorizes the State to "take the lead" on the most serious contamination incidents. For these and other reasons our state cleanup fund is one of the strongest in the 

country. 

one of the major barriers at the federal level in 

implementing the federal UST program on Indian lands is that RCRA 

recognizes tribes as municipalities, not states. The federal 

program can only be delegated to states. Thus tribal entities are not authorized to implement the federal program at all. Because 

New Mexico's program approval stipulates that the State is not 

authorized to operate the state or federal UST Program on Indian 

lands, many leaks go unabated for lack of a regulatory program and 

financing. EPA has jurisdiction over UST's on Indian lands; as a practical matter EPA has a poor record of response to UST leaks on Indian lands in New Mexico. It is clear that leaving such 

authority with EPA creates disfunction. 

Most of the UST's on Indian lands are owned or operated by non-tribal members under lease arrangements. When a leak from a UST occurs, it is not uncommon for the lessee to abandon the 

property and the lease. Depending on the operating arrangements 

at each site, all fixtures, including UST's, may revert to the 

lessor, in this case the tribe or pueblo. As owner the tribe or pueblo may be liable for cleanup under the federal UST program. 

Cleanup of leaks from UST's commonly exceeds $100,000 per release. 

Yet Native American governments are not authorized to implement 

the federal UST program nor receive assistance because they are 

4 
95 

!rBSTIMOlft OF DAVID COSS 

lfBW MBX:tCO BlfV:IROlfMBft DBPARTMBft 

BBFORB TBB BOUSB COMM:tTTBB Olf lfATURAL RBSOURCBS 

SUBCOMM:tTTBB Ollf lfAT:IVB AMBRICAlf AFFAIRS 

OCTOBER 14, 1993 

considered municipalities. Funding is crucial to environmental 

protection and cleanup. I emphasize that federal funds directed 

toward Native American governments should not come at the expense 

of existing state funding levels. 

The challenge is to develop a mechanism for tribes and 

pueblos to participate in New Mexico's UST program and especially the state cleanup fund, notwithstanding the contradictions of 

federal and state Indian law. Toward this end, New Mexico is 

negotiating a landmark agreement with the Pojoaque Pueblo that 

would create and implement such a mechanism. The State has broad 

authority to enter into joint powers agreements and contracts with 

Native American governments to effectuate environmental protection 

and cleanup. Briefly, the Pueblo will enact UST rules and 

regulations no less stringent than New Mexico's. The Pueblo will 

do this under its own sovereignty; it will not be implementing the 

federal program under EPA. The two governments will name joint 

personnel of both the Pueblo and the Environment Department to 

regulate and enforce the Pueblo's UST regulations. The State will 

be able to verify compliance and oversee cleanup at sites 

contaminated by leaking UST's on Pueblo land without operating the 

federal program; the Department will contemporaneously be 

assisting the Pueblo in implementation of its own UST program. 

All monies expended by the State will be from state funds; federal 

funds will not be involved. 

This agreement is critical to cleanup and environmental 

protection at several leaking UST sites on Pojoaque Pueblo lands. 

In the absence of the agreement, affected tank owners are not 

eligible to access the state fund. One site warrants special 

discussion. The Roadrunner Cafe is on a private enclave 

surrounded by Pueblo land. Because of a contaminated drinking 

water supply well on-site, it has been investigated with federal 

Leaking Underground Storage Tank Trust Funds administered by the 

State. The Department's understanding is that this property may 

be purchased by the Pueblo in the near future. In the absence of an agreement, the State would have to cease the expenditure of 

federal funds for any cleanup, and would not be able to use the 

state fund to reimburse the Pueblo for cleanup. Clearly, an agreement between the Pueblo and the State is in the best 

interests of all parties, including EPA, since EPA cannot provide adequate oversight of the cleanup. 

5 
96 

~BS'.fiMO•:r OF DAVID COSS 

lfB'N MBJ:ICO B.VIROIIMBII'.r DBPAR'.fMBII'.r 

BBPORB '.fHll BOUSB COMMI~'.rBB o• RA.TURA.L RBSOURCBS 

SUBCOMM:I!rTBB o• RATIVB A.MBR:ICU A.PFA:IIUJ 

OCTOBBR U, 1993 

In another prominent case on the Sandia Pueblo north of and 

adjacent to the City of Albuquerque, a leak from a UST has 

contaminated ground water. The pollution may have already migrated into the Albuquerque city limits. This site was leased 

to a non-tribal member who broke the lease. The Pueblo is left 

with the task and financial burden of cleaning up the leak without 

federal or state help. Many other examples can be cited of UST's on tribal lands"falling through the cracks" of the federal and 

state regulatory framework. The Department believes that 

agreements such as the one being negotiated with the Pojoaque Pueblo are a way of overcoming the situation without changing 

existing legislation. 

Regarding open dumping of solid waste, the Department is 

tasked to develop and enforce environmental regulations in 

accordance with federal law, as well as New Mexico's own Solid 

Waste Act of 1990, but the state has no regulatory jurisdiction on Indian lands. While informal cooperation and mutual assistance are fairly easy to accomplish, comprehensive planning, implementation, and enforcement of environmental regulations requires a complex process of government-to-government consensus- building. 

An example of such agreements is the joint powers agreement between the State and the Pueblo of santa Clara in effect since 

1986. Under the agreement, the Pueblo and State share 

responsibility for investigation and enforcement activities 

related to illegal disposal of solid wastes on Pueblo land 

adjacent to the community of Espanola. 

Representatives of our Department have met with Pueblo and 

federal officials on a number of occasions in recent months to 

discuss potential cooperative efforts, including: 

1. The siting of a regional solid waste facility on or near Nambe Pueblo, which would address regional solid waste 

concerns, as well as provide local economic development 

opportunities I 

2. Participation of the Eight Northern Pueblos in New 

Mexico's North-Central Region Planning Group discussions 

6 
97 

TBSTIMO•'f or· DAVID COSS 

HBW MBXICO BWIROliMiift DBPARTMJ!:ft 

BBI"ORB TBB BOUSB COJOUTTBB O• HATUl'lAL RBSOURCBS 

SUBCOHMITTBB OR HATIVB AMBRICAH AFFAIRS 

OCTOBBR 14, 1993 

of alternative solid waste management systems1 

3. Solid waste management technical and educational 

assistance for several pueblos and tribes, including the 

Jicarilla Apache tribe, Navajo Nation, Zuni Pueblo, and 

the Eight Northern Pueblos1 and 

4. Joint construction of solid waste transfer stations by several New Mexico county governments and the Indian 

Health Service which will serve both Indian and non- Indian communities. 

The Department's Solid waste Management Plan lists as one of 

its primary goals the creation of solid waste districts to improve 

solid waste management planning and implementation. Participation of New Mexico tribes and pueblos in this process is advantageous for all parties. Development and implementation of joint powers 

agreements involving tribal, state, county, and municipal 

governments, leading to an integrated regional approach for the 

handling of solid wastes, and possibly other environmental 

programs, is a top priority for the Department. 

As a means of providing appropriate focus on these 

relationships, the Department has sought and received an EPA grant 

to fund a full-time employee to act as liaison to tribal 

governments. This position will facilitate consummation of 

cooperative agreements and dialogue on other environmental issues 

of mutual concern. 

The New Mexico Legislature appropriated $250,000 to the 

Department to fund a solid waste management training program for 

Native American governments. A primary goal of the program is to 

provide training for representatives of each of the Eight Northern 

Pueblos on the content and compliance features of federal and 

state environmental protection laws and to establish a base of 

knowledge which will equip tribes and pueblos to develop comprehensive solid waste management and surface water protection 

programs. 

In conclusion, I want to emphasize that the State of New 

Mexico Environment Department recognizes the critical need of 

addressing the problems of solid waste management and leaking 

7 
98 

TBSTIMOII! OP DAVID COSS 

liD MEXICO BJIVIROIIMEIIT DBPARTMEIIT 

BBP'ORB TBB BOUSB COMMITTBB OR IIATURAL RBSOURCBS 

SUBCOMMITTBB 011 IIATIVB AMBRICAR AFFAIRS 

OCTOBBR 14, 1993 

underground storage tanks on Indian lands, both for the well-being 

of Native Americans, as well as non-Indian citizens living on and near Indian lands. 

The State recognizes the sovereignty of Indian tribes and 

pueblos, and the fact that any significant state involvement in 

solving existing or future problems of this nature will require 

execution of agreements between the State and the affected tribe or pueblo. Any new federal legislation should account for and 

encourage such agreements. 

I cannot overemphasize the fact that the State honestly 

desires a high level of cooperation with Indian tribes and pueblos 

in addressing solid waste management and other environmental 

issues. The New Mexico Environment Department is ready to address 

the problems we have discussed here today, and any other 

environmental concerns that affect both sides of the political 

boundaries between us. 

Thank you Mr. Chairman, and ladies and gentlemen of the 

Subcommittee for your interest. I will be happy to answer any 

questions the Chairman or members of the Subcommittee may have. 
99 

Mr. FALEOMAVAEGA. Thank you, Mr. Coss. 

For the record, how many tribes are there in New Mexico? 

Mr. Coss. I believe there are 23 tribes in New Mexico. 

Mr. FALEOMAVAEGA. Twenty-three. What is the size of the Indian 

reservations in the State of New Mexico? Is that a sizable number? 

Mr. Coss. It is very sizable. It is approximately 10 to 11 percent 

of the land area within the State of New Mexico is covered by Indian lands. 

Mr. FALEOMAVAEGA. And the population of Native Americans? 

Mr. Coss. I believe in New Mexico it is around 105,000. 

Mr. FALEOMAVAEGA. I see. Do they participate fully in local and 

Federal elections like anybody else? 

Mr. Coss. Yes, Mr. Chairman. 

Mr. FALEOMAVAEGA. I see. Would it be safe to say that they will 

make a difference in the election process in the State of New Mexico? 

Mr. Coss. It's very safe to say that, Mr. Chairman. 

Mr. FALEOMAVAEGA. Okay. You have heard what was stated earlier by Mr. Gover, and I am sorry that he is not here. I would have 

loved to ask him some more questions. But I guess he had a plane 

to catch. 

He, in my humble opinion, stated some very interesting observations about what he said as compared to what was stated earlier 

by our friends from EPA and DOL Do you agree with Mr. Gover 

or are you in agreement more or less with our friends from the 

Federal agencies about addressing this overall issue? 

Mr. Coss. Mr. Chairman, I hate to answer this in the way that 

I am in agreement with both, but I would like to say that it is not 

being adequately addressed from the Federal level and that is why 

we needed to have this agreement with the Pueblo of Pojoaque, for 

example. 

Because we are experiencing pollution. The pollution is not going 

to stay within any one boundary and we needed to address it. We 

found it wasn't being addressed. 

Mr. FALEOMAVAEGA. How many of these underground storage 

tanks are located in New Mexico? Have you had any identification 

with that? 

Mr. Coss. Mr. Chairman, I would like to have Mr. Bearzi from 

the Underground Storage Tank Bureau answer that one. 

Mr. FALEOMAVAEGA. Please. 

Mr. BEARZI. Mr. Chairman, there are about 12,000 underground 

storage tanks in New Mexico. 

Mr. FALEOMAVAEGA. Twelve thousand? 

Mr. BEARZI. Twelve thousand on about 3,000 facilities, owned by 

about 2,000 operators. 

Mr. FALEOMAVAEGA. I can't believe this. Our friends from EPA 

say nationally there are only 4,800 tanks. 

Mr. BEARZI. On Indian lands. 

Mr. FALEOMAVAEGA. No. No, he said this was nationally. What 

we were able to identify within DOl was about 520. 

Mr. BEARZI. My understanding of the national numbers is there 

are over 100,000 underground storage tanks nationally. 

Mr. FALEOMAVAEGA. Please go on. 
100 

Mr. BEARZI. On Indian lands we have about 150 tanks registered 

with the State of New Mexico on Indian lands. We estimate that 

there are at least three to four times that that exist just in the 

State of New Mexico and probably between a third and a half of 

those are on the Navajo Nation alone. 

Mr. FALEOMAVAEGA. Do you feel that New Mexico could be the 

prime State or the lead State they could give as an example of how 

well that you have worked successfully with the tribal organizations in addressing this issue? Are you quite comfortable, Mr. Coss, 

that your agency has done very well compared to other States in 

dealing with and addressing this issue with Native American 

tribes? 

Mr. Coss. Mr. Chainnan, I am ver; comfortable in saying that 

we are working very hard with it and we think that we have 

reached an agreement in this case with Pojoaque that it can serve 

as a good model. The agreement has not been fonnally signed. 

However, we believe it will work quite well, and we think that we 

are going to be a leader in this area. 

Mr. FALEOMAVAEGA. We will now proceed with Ms. Hoskie and 

then Mr. Ducheneaux. 

Mr. Coss, please stick around. We may still want to ask you 

some questions later. 

Ms. Hoskie, please. 

STATEMENT OF SADIE HOSKIE 

Ms. HoSKIE. Thank you for the opportunity to present the Navajo 

Nation's concerns on these two very important environmental problems that we face at the nation. The Navajo Nation, I believe, is 

the only tribe in the country to receive a small grant from EPA to 

begin to address this problem of underground storage tanks, and 

by small, I mean very small. We have a $50,000 grant from EPA's 

UST funds. And it took us a very long time to get that, AND a very 

big fight to get that, and a continuous one to keep it. 

This apparently is supposed to cover the 17.5 million acres of 

land we have, and we have surveyed a very small portion of that 

land for underground storage tanks. If you are familiar with the 

Navajo Nation, we are split into 5 different agencies geographically, and we have inventoried two of those agencies and we have 

identified 640-some tanks which constitute in tenns of sites about 

316 sites, and there are about 2 to 3 tanks per site. 

And this just began a year ago, and the small grant allows us 

to fund 1 person, and a very overworked person at that. She probably does the work of about 3 to 4 people. 

With this grant, what it allows us to do is to do an inventory of 

the whole Navajo Nation. It also allows us to maintain a field presence when underground storage tanks are being pulled by contractors at these sites to ensure that when there is a leaking tank that 

it gets cleaned up. 

Out of these numbers, we have found that about 40 of them are 

leaking and are at various stages of being cleaned up, and in some 

cases not being cleaned up because of all of the problems that you 

have heard from previous testimony that there just are not any 
101 

funds allocated or available to Indian tribes to help with the cleanup of these leaking underground tanks that threaten our groundwater. 

I am going to deviate from my written statement quite extensively and hit on some of the problems that have been identified 

and maybe expand on some that have not been raised. 

In terms of the EPA's comments that their inventory has about 

5,000-some tanks nationally, I would dispute that number quite seriously because, like I said, we are the only tribe that has done 

some limited surveying on our own. I don't believe there has been 

any effort on the part of EPA to go out and do an inventory on any 

other reservation. 

Mr. FALEOMAVAEGA. For that matter, the BIA may not have 

made an honest effort in identifying how many tanks there are on 

the reservations. Am I correct in saying that? 

Ms. HOSKIE. That is very correct. 

So I think that is one area where we definitely need to get some 

assistance from the Federal agencies. We need more funds to help 

staff people on the reservation who will actually carry out the inventory that needs to be done. 

EPA has mentioned several times that the polluter pays is basically their stance. That is the position. The owner/operator pays for 

the cleanup of the tanks. 

As we have experienced with the Navajo Nation's environmental 

programs, there is a lot of work that needs to be established, an 

environmental infrastructure which means development of codes 

and regulations, it means staffing, it means equipment to be able 

to make those assessments before you can even begin to go after 

PRPs, which in a lot of cases includes the Federal Government, includes the BIA. 

We are attempting to do this in a couple of our programs, the 

Superfund program, and we are having a great deal of difficulty 

doing that. So for EPA to say that it is the polluter, the PRP, or 

the owner/operator of the tank to pay for the cleanup is not as easy 

as it sounds. 

And coupled with that, the abandonment of leases, which is also 

what we are experiencing on the Navajo Nation, a lot of times it 

goes back to the BIA. BIA was the negotiator, the manager, the 

overseer of these sites, and they, to my knowledge, don't have any 

active bonding or active financial mechanism governing these sites. 

In most cases there wasn't one. It was waived or it was released 

when the business decided to leave the reservation. So we are left 

with virtually no money, no financial mechanism to help pay for 

the cleanup that reverts back to the tribal government. 

To the Navajo Nation government's credit, we have put forth 

some of our own money to supplement and in some cases to take 

up the responsibility of developing regulations like we have done 

in solid waste. We have our own approved solid waste code and 

regulations. That was done fully by tribal resources. We are attempting to do that in the underground storage tank program as 

well. 

The other issue that I would like to discuss a little bit is Mr. 

Coss' remarks about the State's involvement in this program. They 

have the State Assurance Fund to help pay for cleanup of leaking 
102 

underground storage tanks, which I think for the most part comes 

from assessing tank fees and taxes. 

And in our case I know that tank fees were assessed on tanks 

that are on the Navajo Nation, collected by the State, but the tribe 

has no access to those funds. The tribe, to my knowledge, has not 

used-none of those funds have been made available to the Navajo 

Nation to clean up the leaking underground storage tanks on the 

New Mexico side. 

Arizona has also collected fees and taxes on tanks that are on the 

Navajo Nation on the Arizona side, but to their credit they refunded those monies, but not-it would have been nice to make 

those available to the nation to begin our own cleanup fund, but 

it was refunded back to the operators. 

So there is, I think, a lot of opportunity there for the Navajo Nation to begin its own cleanup fund. But because of the system being 

the way that it is, it is very difficult to do. There has been no assistance from EPA to help us develop such a fund, which, as I have 

mentioned before, takes a lot of staff time, accounting systems, and 

anytime you plan on going after PRPs or making people pay for 

cleanup, you have got to document your time to the minute, that 

you have actually spent that time cost recovering all of those funds. 

I would also support comments made by Mr. Gover that EPA 

does have a mechanism in place as we speak to help fund the 

cleanup of these underground storage tanks. They do have a Federal trust fund managed by them for cleanup of tanks on Federal 

lands. 

The problem is their criteria that they have which says that only 

in an imminent danger situation will they access those funds. I believe that they need to expand that fund to include tanks on reservations that are leaking, and furthermore, to seek input from 

tribal governments on what they mean by imminent danger. 

I think that tribal governments have the capability to assess potential situations that pose a threat to our members and 

nonmembers living on the reservation and that that ought to be 

quite seriously taken into consideration. 

I am not sure about the amount of the fund. I have been told 

anywhere from $150,000 to $5 million. I would like to find out how 

much is actually in that fund and to ask for your support to help 

make this available to Indian tribes to help fund cleanup. 

We continue to have a very difficult time in dealing with the BIA 

on lease requirements, as I mentioned. That needs to be straightened out, and we would ask for the support of the Congress to help 

ensure that the BIA meets its responsibility, whether as a trustee 

or whether as an owner/operator of these sites, before they decided 

to turn them over to the tribe. 

It is really unrealistic that the Navajo Nation will be able to 

meet financial responsibility requirements due to the unique status 

of the land. We believe that if the land status is the determining 

factor for whether someone is responsible for that, that would also 

tie in the BIA and the Federal Government as our trustee. 

There are some deadlines coming up regarding USTs. By 1998, 

all tanks have to prove that they meet the requirements of EPA. 

Without any additional funds and resources we will have a very 

difficult time meeting a lot of those requirements. 
103 

What we are finding in a lot of our remote reservation areas is 

that the gas station owner serves a very critical community service 

to the people out there, and with the large costs that will be associated with these compliance with Federal regulations, Federal UST 

regulations, we are concerned that these small gas stations will go 

out of business, and we are already experiencing that today. They 

just simply can't afford to upgrade their system or they simply 

can't afford to pay the liability costs. 

And the community has asked our tribal government to make 

sure that they stay in business because that is their only source 

of gasoline, the only source of food supplies, especially with the upcoming winter. We are faced with that critical issue right now. And 

these are the trading posts out in the remote areas. 

Let me switch now to the open dump sites on the Navajo Nation, 

the solid waste issue. In addition to the UST problem, I believe 

solid waste is probably our biggest environmental problem right 

now that we face on the nation. We are trying to negotiate with 

BIA and IHS to initiate an MOA among the three-those two Federal agencies and ourselves, so that we can have a policy of closing 

the most-the sites that pose a potential greater threat to public 

health and welfare out in the communities, rather than having 

each Federal agency say, as you have heard BIA say this morning, 

that we will close our own dumps first. 

What we would like, what we are trying to get them to do is recognize the Navajo Nation as a comprehensive piece of land and 

that we as the Environment Department should be able to determine which sites we believe need to be closed first. 

And also another very important consideration that we are trying 

to get them to understand is that you can't close a community 

dump site regardless of whether it is illegal and it should be closed 

until there is an alternative in place for the community to use, and 

that requires the construction of either a landfill or the construction of a transfer station. And we are not having a whole lot of success with that. 

We believe that makes the most sense. We have inventoried the 

dump sites. We also have a problem with what constitutes a dump 

site. Does each family-owned small pit constitute a dump site or do 

we look at the larger ones that exist in our larger growth centers, 

our larger communities? And that is something that we have been 

grappling with. 

As I mentioned, we do have our regulations approved by the 

Navajo Nation Council, but tha_ doesn't take care of the lack of our 

infrastructure-the lack of a landfill, the lack of transfer stations 

out in the communities. Again, that takes funds. 

IHS has been willing to help build transfer stations on the nation. We have had some support from county governments to help 

with the 0 and M costs. Right now the 0 and M costs constitutes 

large transportation costs because they are hauled off the reservation to a certified landfill. 

I could go on and on about our solid waste problems, but I think 

those cover our biggest concerns. As I have said, the Navajo Nation 

is willing to put forth its own resources, but I think it is only fair 

to ask the Federal agencies who have a responsibility to meet us 
104 

halfway, to help us resolve some of these problems that face our 

Navajo people and threaten the health and safety of our people. 

And lastly, I would just like to say that the Navajo Nation supports Congressman Richardson's bill, H.R. 1267, that would grant 

treatment as a State status to Indian tribes for the purposes of 

RCRA, and we urge the subcommittee to move this bill through 

Congress immediately. 

Thank you very much. 

[Prepared statement of Ms. Hoskie follows:] 
PETERSON ZAH 

PRESIDENT 

THE 

NAVAJO 

NATION 

105 

P. 0. DRAWER 308 • WINDOW ROCK, ARIZONA 86515 • (602) 871-6352-55 

Testimony of the Navajo Nation 

Before the 

Subcommittee on Native American Affairs 

Regarding 

MARSHALL PWMMER 

VICE PRESIDENT 

Abandoned and Leaking Underground Storage Tanks 

and 

Open Dump Sites on Indian Lands 

October 14, 1993 
PETERSON ZAH PAEStOENT 

THE 

NAVAJO 

NATION 

106 

P. 0. DRAWER 308 • WINDOW ROCK, ARIZONA 86515 • (602) 871-6352-55 

Testimony of the Navajo Nation 

Before the 

Subcommittee on Native American Affairs 

Regarding 

MARSHALl. PLUMMER VfCE PRESIDENT 

Abandoned and Leaking Underground Storage Tanks and 

Open Dump Sites on Indian Lands 

October 14. 1993 

Introduction 

Mr. Chairman and members of the Committee, my name is Sadie Hoskie, 

Director of the Navajo Environmental Protection Administration. I appreciate the 

opportunity to provide the Navajo Nation's concerns on abandoned and leaking 

underground storage tanks and open dump sites on Indian lands. This is of utmost 

importance to the Navajo Nation because we have one of the highest, if not the 

highest, number of abandoned underground storage tank sites and open dump sites 

on Indian lands. We commend the Subcommittee for holding this hearing and 

addressing these critical issues. 

The Navajo Nation 

The Navajo Nation is the largest and most populous Indian tribe in America with 

over 219,000 members. The Navajo reservation encompasses almost one-third of all 

Indian lands in the lower-48 states, with jurisdiction over 17.5 million acres (as large 

as the state of West Virginia I. Most Navajo people live in remote areas throughout the 

entire reservation. Three quarters of Navajo communities are without complying solid 

waste facilities (Indian Health Standards (IHS), 1992). 

Within the context of our Navajo values, the Navajo Nation is committed to 

protect, preserve and enhance our people's public health, welfare and environment. 

The Navajo Nation, through its Navajo Environmental Protection Administration (Navajo 

EPA). administers several programs in waste management through federal 

environmental laws such as the Clean Water Act, Clean Air Act and Comprehensive 

Environmental Response, Compensation and liability Act !Superfund). The Resource 

Conservation and Recovery Act does not recognize tribal sovereignty. This Act must 

be changed so that Indian tribes can begin to fully address all environmental issues. 

Without adequate resources. technical infrastructure and authorized funding 
107 

mechanisms, the Navajo Nation cannot fully implement these and other environmental 

programs. 

Scope of the UST Problem 

The Navajo Nation has the highest number of USTs of any Indian tribe in the 

United States. Yet, except for a small pilot U. S. EPA grant that funds one staff 

~to administer the Navajo EPA UST program, no other funds are available for 

monitoring and enforcement to exoand the orogram or to clean up UST sites. The 

Navajo Nation a pilot UST program in October 1991 with a grant from U.S. EPA, 

Region IX to 1) inventory UST sites on the Navajo reservation, 2) oversee closure of 

sites, 3) install and inspect all USTs and, 4) conduct community education and public 

relations regarding UST regulations. The ultimate purpose of cleaning up the leaking 

underground storage tanks is to protect ground water for the Navajo people. We are 

attempting to do this without adequate personnel or resources. 

Approximately 316 documented UST sites, with an average of three tanks per 

site, are listed on the U.S. EPA inventory of official sites on the Navajo reservation. 

Approximately forty (40) sites are considered active, or in the process of being 

upgraded or cleaned up. In addition, at least 110 abandoned UST sites have been 

discovered, but are not a part of the inventory. Eighty-nine (89) of these abandoned 

UST sites are part of the Navajo Economic Development business site leasing system 

and an additional 20 were discovered in a limited survey by the Navajo EPA in July 

1993. Although, the survey was limited to two of the five Navajo agencies, an 

unknown number of abandoned sites may still be added to the official U. S. EPA 

inventory. At this time, it is not known whether any of the abandoned tanks are 

leaking; however, they all must be removed, at which time contamination can be 

determined. In 1992, owners/operators on the Navajo Nation removed 65 tanks at 

21 sites. Since then. an additional 41 tanks have been removed at 15 sites. 

The U. S. EPA, Region IX, and the Navajo EPA are working together to 

inventory and regulate the 316 documented sites and add the 11 0 abandoned sites 

to the inventory. In addressing UST issues, the Navajo Nation is primarily concerned 

with financial responsibility requirements, the determination of responsibility for 

cleanup and the loss of service needs of the community. 

Financial Responsibility Requirements 

As a result of our insufficient financial resources, many sites have been 

abandoned without any environmental cleanup activity. The Navajo Nation and 

petroleum marketers who operate leases on tribal lands do not qualify for state 

assurance funds in the three adjoining states of New Mexico, Arizona and Utah. Most 

stations are leased from the Navajo Nation because Indian trust lands are involved. 

Banks state they are unable to provide insurance or loans because the value of 

2 
108 

property cannot be determined. No tribal taxes exist that would fund general cleanup 

operations. Instead, small owners/operators must rely entirely on their own resources 

for compliance requirements. 

The BIA signs off on all leases for the Navajo Nation. Often, environmental 

considerations are not balanced with economic needs. Even as the Navajo Nation 

strives to enforce vague BIA lease requirements prior to the transfer of sites, more 

business site leases are being added to the inventory which are not in compliance and 

eventually are abandoned. Until those sites are brought into compliance, the Navajo 

Nation, the BIA and other unidentified parties are potentially liable for non-compliance 

with federal regulations. This poses a crisis situation for the Navajo Nation since a 

large percentage of all business site leases on the Navajo reservation involve USTs. 

It is unknown at this time whether any of these abandoned sites have leaking tanks 

or whether these sites are a high priority for cleanup due to safety or environmental 

reasons. Although a few of these sites have been identified, no investigations have 

been initiated to determine the responsible owner/operator of all sites. 

At the present time, the state of Arizona provides refunds to owners/operators 

for gas taxes and tank fees on Indian lands. Although the state of New Mexico has 

been collecting tank fees and gasoline taxes on USTs located within the boundaries 

of the Navajo Nation, as well as other Indian tribes in New Mexico, the state has not 

refunded any fees to the owners/operators. The Navajo Nation prefers that the 

revenue be redistributed, not to the station owners and operators, but to the tribes for 

purposes of cleanup. 

Determination of Responsibility for Cleanup 

Financial responsibility studies conducted by the U.S. EPA Indicate that 

approximately 41 percent of all small service stations will go out of business because 

they cannot meet financial responsibility requirements. On the Navajo Nation, the 

attrition rate for small owners/operators will be much higher than the anticipated 41 

percent. At this time, it is unrealistic that the Navajo Nation will be able to meet 

financial responsibility requirements due to the unique land status and subsequent 

loan, taxation and leasing concer.ns. Such a high attrition rate may cause these 

businesses to cease operation without cleanup of contaminated sites. The Navajo 

Nation supports the U.S. EPA's proposal to amend financial responsibility requirements 

to extend the compliance date until December 31, 1998 (current deadline is February 

18, 1994) for Indian tribes, rural communities and small businesses. 

According to UST regulations under Subtitle I of RCRA, all stations must be 

brought into compliance by 1998. Owners and operators on Indian lands do not have 

access to loans, insurance, state tank fee and taxation funds, and other methods of 

financial assurance to meet UST requirements. Navajo lands are held in trust and 

cannot be used as collateral, therefore it is difficult for business site lease holders to 

3 
109 

obtain financial assurance. Many owners/operators are doing minimal maintenance on 

their systems or opting out of their leases altogether. Although the Navajo Nation's 

Division of Economic Development is trying to stop the exodus, the Navajo Nation has 

difficulty controlling the situation because the BIA leasing requirements do not directly 

address USTs or cleanup of sites. If Navajo EPA, with the assistance of U.S. EPA, 

were authorized to enforce UST regulations on Indian lands, then owners/operators 

would be held accountable for cleanup of sites instead of abandoning them, which is 

now the practice. 

The Navajo Nation can ill afford, however, to enforce compliance at the expense 

of owners/operators abandoning their sites. These operating sites serve a vital 

function because traditional Navajos depend on these businesses (trading posts or gas 

station/stores) for basic services. Many of these small businesses do not make a 

profit; yet, without them people have to travel many miles to get basic supplies and 

goods. If these businesses are closed down, the Navajo communities will suffer as 

a result. Not only will the sites be abandoned without cleanup, the loss of these 

businesses will be a great hardship on the Navajo people. Financial resources for 

owners/operators, as stated before, is needed in order to cleanup their sites and 

continue providing necessary services to the Navajo people. 

At many of these small businesses, lease holders are attempting to install above 

ground storage tanks in hopes of avoiding strict and expensive UST regulations. Many 

of these tanks are substandard and pose an environmental risk to the isolated 

communities. It is unrealistic in most cases to pursue former lease holders to clean 

up these sites. Nevertheless, the health and safety of the Navajo people is of 

paramount importance and it is the obligation of the federal government, as trustee, 

to assist the Navajo Nation in assessing these sites and complying with federal 

regulations. 

Tribal Treqtment QS Stlltes Under RCRA 

Underground storage tanks regulations do not recognize tribal governments, 

except as municipalities, yet Indian tribes are not afforded the benefit from state 

funding, taxes, or any other state benefits. The Navajo Nation recommends that 

RCRA be reauthorized to grant "Treatment as State" (T AS} status to Indian tribes. 

RCRA is the last remaining environmental statute that does not grant treatment as 

state status to Indian tribes. With TAS, tribes can address numerous concerns, 

particularly the lack of accessibility to funding. TAS status would give the Navajo 

Nation direct access to the federal leaking Underground Storage Tank (LUST) Trust 

funds and the authority to assess tank fees and gasoline taxes. T AS would also pave 

the way for the Navajo Nation to develop their current program, including a 

certification program for contractors, a permitting system, Navajo cleanup criteria, and 

other regulatory functions that are currently under the authority of the U.S. EPA. 
110 

OPEN DUMP SITES ON THE NAVAJO NATION 

As the Subcommittee is aware, open dumping is a significant environmental 

problem on reservation lands. It is well understood that Indian tribes lack the financial 

resources to operate solid waste facilities in compliance with federal standards. RCRA 

governs the regulation of solid waste, hazardous waste and toxic substances and 

petroleum products stored in underground tanks (42 U.S.C.6901-6992k). As noted 

under the prior section on TAS status for Indian tribes, RCRA does not contain any 

tribal-specific provisions. 

Scooe of the Problem 

It has been estimated that 130 to 1 000 small open sites are scattered 

throughout the Navajo reservation {the exact number has not yet been determined). 

These open dumps are not only in violation of existing federal laws and regulations, 

but pose a 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 adequate resources to insure that all open dumps are closed 

and covered in accordance with federal regulations. 

The Navajo Nation has taken a number of steps to ensure that solid waste 

facilities existing on the Navajo reservation comply with RCRA and 40 CFR Part 258. 

The Navajo Nation enacted and adopted, by authority of the Navajo Nation Council, 

a solid waste code {Solid Waste Code pursuant to Resolution C0-58-90 of October, 

1990) and promulgated regulations equivalent to, and in some cases, more stringent 

than the new federal standards. In developing the code and regulations, the Navajo 

Nation has conducted a series of public hearings and worked closely with the EPA 

Region IX Solid Waste Program. 

The Navajo Nation is in the process of submitting its solid waste management 

regulations to the U. S. EPA for final program approval. The Navajo Nation has 

established a solid waste management program {SWMPJ that assist chapters in 

developing alternative waste management systems. In addition, the SWMP is 

conducting an inventory to determine how many dump sites actually exist on the 

reservation. Due to the magnitude of this project, the inventorying of sites is taking 

longer than originally expected. 

Solid waste has grown exponentially from a small back yard family dumping site 

to a large community dump, numbering from ten to twenty sites per each of the 110 

chapters on the Navajo Nation. In addition, dump sites have been developed in areas 

throughout the Navajo Nation to serve both commercial generators and private 

households. Many of these dump sites were developed by federal government 

agencies to serve their facilities and often were not properly managed or maintained. 

Under the current federal statutory criteria. there is not a single complying solid waste 

5 
111 

disoosallandfill wjth!n the Navajo Nation. Open burning was, and still is, a common 

method of volume reduction at these sites. 

The Navajo Nation has recognized the environmental impact created from 

unregulated solid waste disposal and other forms of inadequate waste disposal which 

cause imminent health hazards. These problems threaten our environment and 

diminish the quality of air, land and water. This cannot be left unresolved. 

The Navajo Nation faces the following problems: 

1 . Lack of approved landfills that result in improper disposal of solid waste: 

2. Lack of transfer stations in some areas that cause residents to travel 

inordinate distances to dispose of waste properly; 

3. Possibility of increased numbers of illegal dump sites, if alternative 

methods for solid waste disposal are not installed in place of closed dump 

sites. 

4. Inadequate resources and funding for closing illegal dump sites, 

establishing transfer stations and constructing sanitary landfills. 

5. Difficulty in acquiring land for establishing regional landfills and transfer 

stations. 

Although the Nation is working hard to comply with 40 CFR Part 258, we are 

experiencing difficulty in doing so. Not only are there countless family dumps, local 

community dumps and chapters have created dump sites in a number of locations 

throughout the reservation. Moreover, IHS and BIA constructed some sites for their 

solid waste needs and in some cases, transferred the responsibility to chapters for 

operation and maintenance. 

The Navajo Nation is aware that the U.S. EPA recently promulgated a new rule 

that will extend the Municipal Solid Waste Landfill !MSWLF) criteria deadline from 

October 9, 1993 to April 9, 1993 and a two year extension for facilities that accept 

less than 20 tons per day. This will give the Navajo Nation extra time needed to 

ensure that dump sites existing on the Navajo reservation comply with the 

requirements of 40 CFR Part 258. However, the 110 chapters are limited by the lack 

of resources to properly acquire funds for actual construction, caretaker salary and 

operations/maintenance costs and other conflicts due to land acquisition and surveys. 

The Navajo Nation's Efforts to Address the Solid Waste Problem 

In the long-term the Navajo Nation is considering the construction of three 

6 
112 

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. It takes funding and time, however, to establish a 

regulatory program, acquire land to site a regional landfill, coordinate design and 

engineering, establish an operation and maintenance entity, and obtain financing and 

insurance. The Navajo Nation is also negotiating with IHS and BIA to develop a triparty Memoranda of Agreement (MOA) to coordinate efforts of the three entities on 

providing alternative waste systems and closing existing solid waste facilities. 

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. Even these are costly and time consuming given the size, road 

conditions and geography of the Navajo reservation (110 chapters covering an area 

of 25,000 square miles). The Navajo Nation is working with IHS and local county 

governments on cooperative agreements to build and maintain transfer stations. It 

takes time to process these agreements, particularly because of the multiple 

jurisdictions involved. Indian tribes, unlike states, are not eligible for the financial 

assurance exemption under 40 CFR Part 258. Until regional landfills are in place 

within the Navajo Nation, the Nation will have to transport its solid waste to state 

permitted off-reservation locations such as Cortez, Colorado and Flagstaff, Arizona. 

In some situations, the nearest complying regional landfill is 160 miles from a chapter 

and this adds substantially to transportation costs. Chapters are not financially 

capable to accept these responsibilities without proper funding. 

Illegal Dymoing 

To exemplify one situation, the Navajo Agricultural Products Industry (NAPI), 

a tribal enterprise, faces a dilemma of illegal dumping of solid waste on Navajo Nation 

trust land. The Navajo Nation does not have certified or licensed solid waste facilities 

within or near the boundaries of NAPI property. During the spring of 1993, Navajo 

EPA inspected NAPI's removal of all underground fuel tanks for above ground storage. 

NAPI is keeping better records of fuel usage for farm vehicles and large heavy 

equipment and tractors. To avoid any further illegal dumping, NAPI is requesting 

construction of two large solid waste sites. If constructed, the facilities would be 

available for solid waste generated from several other Housing Authority projects on 

NAPI. 

Recommendations 

As mentioned before, RCRA is the last remaining environmental statute that 

does not grant state status to Indian tribes for the purpose of enforcement of this Act. 

Although Indian tribes are sovereign governments and federal policy encourages tribes 

to seek self-determination, Congress has thus far failed to recognize the right of Indian 

tribes under SWDA to govern the disposal of garbage on their own lands, especially 

7 
113 

when solid waste poses a threat to the health and environment of Indian people. The 

Navajo Nation supports Congressman Richardson's bill, H.R.1267, that would grant 

"Treatment as State" status to Indian tribes for purposes of RCRA. We support this 

bill because it would authorize Indian tribes to assume primary enforcement 

responsibility for programs and projects and to receive direct ful]ding allocations. We 

urge Congressman Richardson, and this Subcommittee to move the bill through 

Congress immediately. 

Funds must be authorized for operation and maintenance of waste management 

systems, education; trainin'g, program development, development of solid waste codes 

and regulations or enforcement. In the past, the BIA built and operated dump sites on 

Indian lands to accommodate solid waste by their entities and IHS facilities. To now 

assume the responsibility, the Navajo Nation, like other tribes, will need sufficient 

start-up funds to develop and maintain solid waste management systems. 

The bottom line is that the Navajo Nation, and most Indian tribes, simply do not 

have the funding required to construct and maintain landfills; to purchase equipment; 

or to employ the trained labor force necessary for proper solid waste management 

operations. 

The Navajo Nation has the sovereign authority to protect its resources and 

regulate environmental programs. The Navajo Nation needs to take the lead role for 

all construction for sanitary landfills, the closing and covering of all open dump sites 

excluding BIA inactive dump sites and transfer stations. The Navajo Nation is the best 

authority on the geography of its own lands and sites, understands the severity of the 

problem and where cleanup activity needs to be concentrated and what the funding 

priorities should be. In the past, BIA and IHS have taken the lead to implement solid 

waste management activities for the Navajo Nation. We feel that we are technically 

sophisticated to promulgate our own solid waste regulations and enforcement 

authority. We have a responsibility for the welfare and protection of our lands and our 

people - no responsibility could be more important. 

Conclusion 

The Navajo Nation appreciates the opportunity to comment on these critical 

issues. We urge this Subcommittee to draft in legislation that Indian tribes will have 

the primary authority to regulate its UST and solid waste programs and provide for 

statutory authorization for funding. The Navajo Nation looks forward to working with 

the Subcommittee on these important matters. 
114 

Mr. F ALEOMA V AEGA. Thank you, Ms. Hoskie. 

I sympathize with the Navajo Nation to the extent that it is bad 

enough already for some of our tribes to deal with just one State, 

but I believe you cut across several States. You have to deal with 

the State of Utah. You have to deal with the State of New Mexico. 

Colorado also, as well as Arizona? 

Ms. HOSKIE. No, just Arizona. 

Mr. FALEOMAVAEGA. Just Arizona. And so you have to deal with 

three separate State jurisdictions in some of the issues that you 

have to address. 

Ms. HoSKIE. Right. 

Mr. FALEOMAVAEGA. Mr. Ducheneaux? 

STATEMENT OF FRANKLIN DUCHENEAUX 

Mr. DUCHENEAUX. Thank you, Mr. Chairman. 

First, let me thank you for your kind words. For the record, my 

name is Frank Ducheneaux, and I would like to express the appreciation of our chairman, Alfred Pemberton, of the Leech Lake/Chippewa Tribe of Minnesota for the opportunity to have their views 

presented here. I know you are very pressed for time, so I am going 

to just take a little time here. 

First, let me say that on behalf of the Leech Lake Band and all 

of my other clients, we would like to say amen to what Mr. Gover 

presented to the committee. I think he was very right on on every 

point with respect to EPA and BIA. 

I am going to take a few seconds on three points the Leech Lake 

Band wanted me to bring to your attention. One relates to the open 

dump issue. The Leech Lake Band acquired, in 1978, a private landfill that was going to close because of permit violations. They 

felt they had to in order to ensure that there was a site for waste 

disposal. This was at a time when Federal regulations were not as 

strict in terms of operation, closure and post-closure maintenance, 

and they felt they could deal with it. 

Subsequent to that, of course, the standards became very much 

more restrictive and strict and the cost of complying much higher. 

The landfill is now going to be closed and they simply don't have 

the funds to pay for the closure and post-closure maintenance, 

which will run on the order of $800,000. They simply don't have 

that, and hope that the subcommittee in whatever it does will ensure that there is a policy as the Federal witnesses were asked to 

formulate which will deal with that problem. 

On the issue of underground storage tanks they wanted me to 

bring one issue to your attention-it was mentioned briefly in some 

of the other testimony-and that involves the responsibility of the 

States with respect to tanks on Indian lands. Right now, as you 

heard from Mr. Gover, any Federal funding for this purpose does 

not go to the tribes, it goes to the States and the States have that 

responsibility. 

However, the State of Minnesota has attempted to coerce the 

tribes in making available funds to deal with the problem on the 

reservation by requiring the tribe to submit to the State's civil jurisdiction. You have been on the committee long enough to know 

that the tribes are not going to do that. Yet, those do need those 
115 

kind of funds not only to deal with tanks that may be in violation, 

may be leaking, but also just to simply identify those. 

So we would like to urge the subcommittee to either ensure 

through amendments to RCRA that there is a direct funding for 

the problem on the reservations or at least to ensure that the 

States are not put in this coercive position. 

With respect to EPA administration, they wanted me to bring to 

your attention their feeling that even though there has been improvement in EPA in terms of their attention to Indian problems, 

they still feel that there is not enough tribal input into the policymaking levels of EPA. EPA currently provides for State operating 

committees but not for the tribes. They would at least like to see 

EPA required to establish tribal operation committees for that kind 

of consultation. 

Particularly, we would like to support-and I would like to for 

all of my clients-the legislation pending in the Government Operations Committee which would establish a Department of the Environment. The McCain amendment to that legislation, which would 

establish an Assistant Secretary for tribal lands, I think is very important, and I think some of the Committee members mentioned 

that this morning. 

Just to comment a little bit on some of the testimony you heard 

from the Federal witnesses, I was very disappointed to hear my 

good friend Pat Hayes indicate that it was the position of the Department and the administration that there is no general trust responsibility to deal with these kinds of problems. I think maybe 

Pat is not speaking his own heart and mind on that but reflecting 

the attitude of the bean counters in OMB and the Department on 

this issue in terms of dollars and strict legality. We would hope 

that at least the subcommittee would recognize and advocate a general trust responsibility of ensuring the livability of the reservations, and as long as you have open dumps and leaking storage 

tanks, Superfund sites that exist and are not being dealt with, you 

are not dealing with your trust responsibility. 

In that respect, I would like to mention briefly the Blue Legs 

case, the Federal District Court case out of South Dakota about 8 

years ago where members of the tribe involved sued the tribe, sued 

EPA, BIA, and IHS over an open dump site. In that case the Federal District Court not only found that BIA and IHS had a joint 

responsibility with the tribe to pay for the cost of cleanup, but they 

also found that the United States had a trust responsibility. Now 

that case wasn't appealed on that issue, so it is still there, that 

there is some kind of trust responsibility. 

And like Ms. Hoskie, I would like to, on behalf of my clients, support early action on H.R. 1267, particularly with respect to State 

status for tribes. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. Ducheneaux follows:] 
116 

STATEMEHT OF PRANKLIM DUCHENEAUX 

OM BEHALF OF 'l'HE LEECH LAKE TRIBAL COOHCIL 

BEFORE THE 

SUBCOMMI'l"l'EE OM lfA'l'IVE AMERICAN AFFAIRS 

OF 'l'HE 

HOUSE COMMI'l"l'BE OH lfA'l'URAL RESOURCES 

October 14, 1993 

Mr. Chairman, my name is Frank Oucheneaux. On behalf of the 

Leech Lake Band of Chippewa Indians of Minnesota, I would like to 

thank you for this opportunity to present their testimony at this 

oversight hearing on open dumps and underground storage tanks on Indian reservations. 

For some time the Leech Lake Band has been struggling with the 

financial burden of closure and post-closure monitoring of a reservation landfill pursuant to Federal requirements of the Solid 

Waste Disposal Act. 

The Band testified before the Senate Indian Affairs Committee on this problem in 1991. In addition, the Chairman of the Band 

testified before the House SubCommittee on Interior Appropriations 

this year on the funding needed to meet the Federal standards. 

Since then, absolutely no progress has been made regarding the 

closure of that open dump. 

Leech Lake purchased the landfill in question in 1978 with the 

financial and technical assistance of the Minnesota Pollution 

Control Agency, EPA, BIA and IHS. This private landfill was facing 

closure for permit violations. Leech Lake was concerned that 

closure would have left the Band and surrounding non-Indian 

communities without a solid waste disposal facility. 

When the Band assumed ownership and operation of the landfill, 

they were confident that they could operate, maintain and close the 

facility consistent with existing Federal guidelines. However, as you know, Federal standards have become much more stringent and 

costly. Like many other rural communities, Leech Lake was forced 

to close its landfill and transport waste generated on the 

reservation to off-reservation, regional disposal sites. 

While the cost of properly disposing of reservation solid 

waste has tripled, we are also faced with the cost of closure and 

post-closure monitoring and maintenance of the existing landfill 

site in accordance with Federal standards. our staff has estimated 

that this cost would be from $800,000 to $1,000,000. 

Mr. Chairman, Leech Lake and the reservation ~esidents are facing a potential environmental hazard. If the landfill is not 

properly closed, it is possible that leaching will contaminate the 
117 

2 

underlying aquifer. One study has shown that 376 people obtain 

drinking water from that aquifer. It is possible that this site 

could become a superfund site. we believe that the only reason it 

does not qualify is because of its rural location. 

UNDERGROUND STORAGE TAHKS 

The State of Minnesota has assumed responsibility for the 

underground storage tanks program within its geographical 

boundaries. However, the State's pollution control agency does not 

provide any services on the eleven Indian reservations within the 

State's boundaries. This situation has developed as a result of 

the refusal of the tribes to allow the state to assert civil 

jurisdiction within the reservations. 

The State simply does not have civil regulatory jurisdiction 

within the reservations. I~ an attempt to coerce the tribes to 

give it that jurisdiction~ tHh state is withholding these services 

and is risking the environmental integrity of the water system of 

the entire state to impose its jurisdiction over our lands. The 

Leech Lake Band believe that it is highly unethical for Minnesota 

to withhold these service on jurisdictional grounds. Since tribes are unable to apply for and receive direct Federal funding for the 

underground storage tanks program, they must either submit to the 

state's coercion on jurisdiction or risk contamination from leaking 

storage tanks. 

Mr. Chairman, Leech Lake has only limited information about 

the nulllber of abandoned underground storage tanks within the 

reservation boundaries and there is currently no effort underway by the State to supplement the preliminary information in that 

respect. These services do not exist within the reservation at 

this time. The only viable option is to seek direct funding. The 

Leech Lake Band strongly urges this Subcommittee to support and 

enact amendments to RCRA that would allow tribes to be eligible for 

direct Federal funding. 

Policy Making within EPA 

currently, Indian tribes are not included in the development and implementation of EPA policy and rule making affecting tribes. 

While State governmental issues are represented by a State 

operations committee, this committee is not able to adequately 

address the environmental concerns of Indian country. In fact, in 

many ways, the interests of this committee run contrary to those of 

the tribes. There is no one within the EPA committee structure to 

speak for Indian tribes. Yet, tribes are not exempt from the 

growing complexity of environmental problems. 

To promote environmental equity, tribes must receive 

equivalent technical and financial assistance and have a voice in 

EPA policy-making. The development of a tribal operations 
118 

3 

committee would begin the process of making a commitment to tribal 

needs within the EPA budget, planning, and program development areas. 

On behalf of the Leech Lake Band, I urge you to require EPA to 

form a tribal operations committee as the first step necessary to 

address the environmental concerns of tribes. In addition to a tribal operations committee, EPA needs to establish an Indian desk or Office of Indian programs which has direct access to the Office 

of the Administrator. This office should have a budget that allows 

it to begin to assess the far-reaching needs of Indian country, and 

should have open communications with tribes and a staff which has 

direct experience in Indian country. 

In this respect, the Leech Lake Band strongly supports the 

provisions of the pending senate bill to establish a Department of 

Environmental Protection which provid~ for an Assistant Secretary 

for Indian programs. ~ 

In summary, there has been a lack of administrative and 

financial support from EPA. The EPA Region v staff knows of the 

burdens tribes face, and many within EPA know of the financial 

restraints which exist in Indian country. The funding decisions 

which will make it possible for the needs of the tribes to be more fully addressed must come from Washington . 

Clean Water Act 

A pending amendment to the Clean Water Act would authorize the 

EPA Administrator to treat tribes as states. Tribes may be funded 

for all Clean Water Act activities, but EPA has never made a full 

commitment for these activities. EPA currently allocates 

approximately one-tenth of one percent of its funding for tribes. 

To receive some sort of parity, tribes have demonstrated that they would need five percent of the total EPA budget to address their 

current needs. The funding which is allocated should not be based 

solely on population, but should also consider the environment 

which is being detrimentally impacted. 

The Leech Lake Band believes that treatment as a state has not 

always worked well for tribes. The policy has sometimes been a hinderance to the development of a cooperative working relationship 

between the tribes and EPA. EPA is not following the Indian policy that it adopted in 1984. EPA has not communicated with tribes when 

policies are drafted that will effect tribes. Communication 

between tribes and EPA is minimal. Again, an Indian Administrator 

and an adequate budget for Indian programs would greatly improve 

the current situation. 

Mr. Chairman, this concludes my statement and I would be happy 

to respond to any questions the members of the Subcommittee may 

have. 
119 

Mr. FALEOMAVAEGA. Thank you very much. 

Without objection, all the statements of the members of the panel 

will be inserted and made part of the record. 

I don't want to sound repetitious, but basically it seems that we 

have come about to a complete circle now in terms of what our 

friends from the Federal agencies have stated and what other 

members of the Indian community have shared with the committee 

this afternoon, and I will say it is very disappointing. 

I am just sorry that our friends from the Federal agencies left 

earlier. We would have wanted them to stick around and be asked 

some more questions as far as this issue is concerned. 

Ms. Poston, as a tribal planner, and I assume that you are a tribal planner for the Pueblo tribe. 

Ms. POSTON. That is correct. 

Mr. F ALEOMA v AEGA. What has been your experience in dealing 

with both the BIA as well as the EPA in dealing with this storage 

tank issue? 

Ms. PoSTON. As far as the BIA was concerned, we had severala lot of correspondence took place before Mr. Farris from D.C. finally went to go look at the site, and before then we had gotten 

hardly any reaction from BIA. 

As far as EPA was concerned, same thing there. A lot of correspondence and telling us that we were the responsible party 

since it was on our lands. 

Mr. FALEOMAVAEGA. Am I correct that our friends, Mr. Coss, is 

the lead agency representing the State of New Mexico? Do you, in 

any way, work closely with the Pueblo tribe in conducting these 

lease agreements with these operators that provide for these tanks 

or dump sites, or is this exclusively done by the tribal organization? Can you clarify that? 

Mr. Coss. Yes, Mr. Chairman. On tribal lands that would be 

done exclusively by the tribe. The State of New Mexico wouldn't be 

involved in that. 

Mr. F ALEOMA v AEGA. I see. Ms. Poston, from your experience, have you had assistance from the BIA in dealing with these lease 

agreements, especially with reference to the environmental questions? Have they been helpful to you in the past or is this just simply a confirmation of what Mr. Gover said earlier? 

Ms. PosTON. The statements that Mr. Gover made earlier are 

true, and it has been tough trying to deal with our lessees or even 

trying to track them down, which were the people that initially put 

those tanks there. 

Mr. FALEOMAVAEGA. Now, I know our good friend from the EPA 

made a very classic statement: the polluters pay. But I hear a very 

contrary statement. That they just simply pack up their things and 

leave and the poor tribes are left holding the bag. 

Has this been your experience, Ms. Hoskie, in dealing with the 

Navajo Nation? Have there been corrective actions taken? I mean 

have you taken them to court? Have they been cooperative or do 

they just simply pack up and leave? 

Ms. HosKIE. Yes, they simply packed and left, and the BIA sometimes has released the-what little financial mechanism, bonding 

they might have done, if they were doing the right thing. They 

have released that also. 
120 

Like I said, to pursue a potential responsible party, you need to 

have all kinds of documentation, and without a staff you can't do 

that, can't present your case. 

Mr. FALEOMAVAEGA. It is going to be my recommendation to 

Chairman Richardson that some of the recommendations and suggestions that you have offered, and members of the panel, will definitely and seriously be looked at to be incorporated in the bill that 

Chairman Richardson has earlier introduced in the Congress. 

I am troubled by all this simply for the fact that we seem to have 

two levels of communication here. We get one from the Federal 

agencies saying an entirely different list of accomplishments and 

the great things that they are doing, and then hearing from the 

grassroots where things are directly right there, the front line. This 

is not only absurd but very ludicrous. I mean I just can't believe 

this. 

Mr. Ducheneaux, you have been here long enough to know that 

this is a constant problem that we have had from our friends downtown. 

I don't want to sound confrontational. I am trying to find a medium where by there is some sense of cooperation and a willingness 

to work with our friends from downtown and to resolve the very 

serious problems affecting the lives of Indian people in these reservations. 

I want to leave with that note and I want to thank all of you for 

testifying this afternoon. 

The hearing is adjourned. [Whereupon, at 12:51 p.m., the subcommittee was adjourned.] 
APPENDIX 

OCTOBER 14, 1993 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

TESTIM:lNY FOR HEARINGS BY '!HE HOOSE S1JBCXHUTl'EE ON NATIVE AMERICAN AFFAIRS 

October 20, 1993 

Mr. Olairman, 

'!he Confederated Salish and Kootenai Tribes of the Flathead Nation 

appreciate the Colmnittee's invitation to provide testi:rony in regard to the 

need for corrective action and preventive measures to be applied to 

abardoned lll'rlergrourrl storage tanks (USTs), leak.in;J USTs, and open dunp:';. 

All of the above exist on the Flathead ReserVation. While the federal 

government has legislated against each of these coroitions, there has not 

been adequate financial and technical assistance for i.nplementation of 

corrective or preventive programs alx.lard reservations. Nor has there been an 

adequate enforcement effort applied by EPA to these problems. EPA's own regulations, though promulgated in 1988 after most other environmental statutes began to recognize Tribal auth=ities, actually seem to preclude 

Tribal administration of UST programs on ReserVation lands, and specifically 

require EPA to administer them instead. 'Ihe result is problematic since EPA 

is not equipped to handle the on-t.he-grouOO. scrutiny such enforcement 

entails. 

'!he root of much of the problem can be traced to the Fssources ConseJ:.vation 

and Recovery Act's (RCRA) treatment of tribes as "lllll1icipalities" (42 u.s.c. 

6903). such treatment is contrary to this nation's policy of tribal selfdetermination and governrnent-to-qovernment relations. Tribes should be 

afforded similar treatment as states as occurs with nearly all other federal 

environmental statues. 

9Jen DlgJs 

The Confederated Salish and Kootenai Tribes effort to address open dunp:'; is 

nothing new. '!here has always been concern about increased exposure to 

disease vectors and injury hazards. Now, in addition to these, cooes the 

direct threat of the hantavirus and its tie to rodent harborages. '!his is an immediate health concern ard has placed a new sense of tu:gency for action on this subject. '!he priorities of disease prevention will hcpefully align 

with those driven by COI'!pliance with the oncoming RCRA regulatory changes. 

'Ihe Tribal Natural Resources Department has done a prelil:ninacy inventory and 

assessment of the sites within the boundaries of the reservation, ard is 

preparing a plan to take the appropriate corrective action. At least 29 

small durrq:l sites are known to exist, with contents ranging from aut<:m:lbiles 

and appliances to household gillbage and construction debris. Of these, 15 

lie on the banks of the Flathead River, 7 on other waterways am the 

renaining 7 in areas which could contribute to grourd water contamination as 

quickly as to surface waters. '!hey are located on tribal lard and nonIndian fee land alike, and most are located along steep bluffs which will 

make removal or closure extraordinarily difficult and very elqJ8llSive. 

Approximately half appear to contain household waste which could place them 

lll'rler a nvre stringent April 9, 1994 re]Ulatocy deadline. some of the 

household gillbage, especially new gillbage, makes these durrq:ls a higher 

(121) 
122 

priority for closure as they tend to attract rodents, and tend to be located 

closer to housing and work areas. 

'!here is both knowledge and ability on the part of the Tribes to address the 

problems. 'Ihe asset missing in the plan is furding. To date, the Tribes 

have received $15,000 frclll EPA to devise a J:llgn for closure of these c'!!.mp5. 

However, it is not known where funds for closure operations, estimated at 

$400,000, may be procured. M:>ney to assist the Tribes in actual closure of 

epen dunps has not been provided despite the 1989 Blue 1&9.§ decision in 1989 

which clearly placed a burden on the BIA and the Indian Health Service to take a much IOClre active role in controlling the problem. Of course, the 

Blue 1&9.§ decision also stands for the proposition that Tribes themselves 

can be held responsible, in part, for cleaning up epen dumps under their 

control. 'Ibis decision while environmentally sound establishes a potential 

for significant liability on tribal governments who have limited financial resources. Substantial funds are illlmediately required to protect the health 

of everyone who lives on or around the Flathead Reservation. 

EPA's Undergroond Storage Tank program does not affect Tribes the authority to implement a federal UST Management Program. Federal regulations provide, 

"EPA will administer the UST program on Indian lards except where Congress 

has clearly expressed an intention to grant a state authority to regulate 

petroleum and hazardous substance USTs on Indian lards •.•• " ( 40 CFR 281. 12) • There is no intent expressed by Congress for authorizing states to administer a UST program on Indian reservations, and should not be. EPA has 

fallen far short of its obligation and responsibility to regulate UST's on 

Indian lards. 'Ihrough federal funding, EPA has enabled the establish!oont of 

Montana's UST program, yet has failed to adequately administer or fund a tribal program on the Flathead Reservation. 

CUrrently, the State of Montana is regulating USTs within the exterior 

boundary of the Reservation on non-Indian fee lards only, composing less 

than half of the land area. 'Ibis has been an issue of contention between 

the Tribes and the state in the past. At one point, the state prohibited 

heating oil distributors from filling heating fuel tanks servicing tribal 

buildings unless they obtained a state permit. Some tribal buildings went without heat for several days in cold weather as a result. O.rrrently, there 

is an interim agreement between the state and the Flathead Nation, an agreement based on the efforts of the Tribes to develop and maintain a UST 

management program which is currently attempting to provide technical 

assistance to tank owners. An unfunded program, the capability is limited to monitoring actions taken to known USTs. 

We are also concerned with how the the $500 million Leaking UST {llJST) Trust 

Fund established in 1988 is administered. Opportunities to access these 

financial resources are often tied to state trust funds and state regulations. As discussed above, under those conditions, Tribes would be 

forced to accept state jurisdiction on Indian lards, a condition that is not 

acceptable to the Tribes or permissible under federal regulations. 

on the Flathead ReserVation, there are approximately 35 operational 

underground storage tanks subject to RCRA regulation, which are Indian owned 
123 

or located on Indian C1NI1ed land. None of these are known to be leakirx.J, but 

not all have met the new ~ations for leak detection. It is estimated 

that there are from six to twelve abandoned USTs which are no longer in 

service, but have not been through closure procedures. Some of these are suspected tanks which have yet to be located. '!he same type of resources discussed above for lllSTs are needed to address abandcned tanks and tanks 

which require proper closure. 

In Sl.llmlarY, the fundamental problems are inadequate federal law which treats tribes unfairly and inconsistently with states, and a severe lack of funding 

to address illegal ciunq:Js and leakirx.J undel:ground storage tanks. We applaud 

this committee's interest in listening to our concerns on this issue and 

encourage the Congress to take action to bring RCRA into conformity with all 

other federal environmental ~atory schemes which recognize tribal 

governments proper role in ad!r,inistering environmental programs on Indian 

lands. 'Ihe failure of the federal gove~:runent to adequately fund these 

programs on Indian lands while at the same time, providing for state 

programs needs to be corrected. 'Ihank you for the opportunity to submit 

testi.nony on these matters. 

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ISBN 0-16-046077-8 

9 7801 0777