On April 19, 2012, the Environmental Protection Agency (EPA) published a final rule in the FEDERAL REGISTER (attached) which requires the owners or operators of facilities located in Indian Country to report the use of toxic chemicals to the appropriate tribal government of their relevant area, rather than the state. The new rule also clarifies that tribal governments may request that EPA require a non-covered facility located in Indian Country to submit Toxics Release Inventory (TRI) forms. Tribes also may petition EPA to add a chemical to the TRI list, or to delete a chemical from the TRI list, just as states are authorized to do. The final rule was effective upon its date of publication in the FEDERAL REGISTER. The requirement that facilities located in Indian Country report to the affected tribal government is effective beginning with reporting year 2012, for which TRI reports will be due by July 1, 2013.
The final rule is adopted under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), which establishes requirements for federal, state and local governments, Indian tribes, and industry regarding emergency planning and publicly available information on hazardous and toxic chemicals. Section 313 of EPCRA establishes that facilities using hazardous chemicals at quantities above specific threshold levels must complete a TRI Form annually. The report must include the name and location of the business; whether the chemical is manufactured, processed or otherwise used; the amount of the chemical present during the preceding year; the quantity of the chemical entering the air, land and water annually; and waste treatment and disposal. EPA maintains a national TRI database summarizing all of the information reported which informs government officials and the public about releases and other waste management of toxic chemicals in their locality, Indian Country area, and the state.
Industry comments on the proposed rule asserted that EPA lacks congressional authority to implement this rulemaking because EPA cannot relieve a facility from the statutory obligation to submit TRI forms to the state. Such comments also asserted that EPA had no authority to construe “an official or officials of the State designated by the Governor” to mean “an official or officials of the Indian Tribe designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe.” We will track whether any litigation arises over this new rule as it is implemented.
The EPCRA, EPA rules and guidance, as well as the related Chemical Accident Prevention Program (authorized under the Clean Air Act), have a number of other important provisions regarding planning and preparing for chemical hazards and release emergencies, including:
authorizing tribes to appoint Tribal Emergency Response Commissions (TERCs), to ensure the development of a contingency plan for the community to prepare for and respond to emergencies in the event of a chemical accident; requiring submittal of information about chemicals to TERCs and local fire departments; notification requirements for chemical releases above certain threshold levels; authorizing tribes to be treated as states under the Clean Air Act for purposes of the Chemical Accident Prevention Program.
The information required by EPCRA and the Chemical Accident Prevention Program offers tribes, tribal communities, and local fire departments a better understanding of chemical risks within Indian Country and adjacent state lands, as well as the ability to play a significant role in planning for emergencies. The following is a link to an EPA fact sheet “Chemical Emergency Preparedness and Prevention in Indian Country”: http://www.epa.gov/emergencies/docs/chem/tribalalert.pdf
Finally, under the new rule, tribes may choose how they would like to receive reports. EPA will request that tribes provide a mailing address and contact name to be published on the TRI Web Site. Tribes can also choose to allow electronic submittal of TRI reports. If a tribe becomes a member of the internet-based TRI Data Exchange, then the facility can meet its dual EPA and Tribal reporting requirements by submitting its TRI report to EPA via web-based site. This option is further explained in the preamble portion the final rule.
If you would like additional information about the final rule or others matters in this memorandum, please let us know.