EPA's Response to Comments on the Toxics Release Inventory (TRI) Reporting for Facilities Located in Indian Country and Clarification of Additional Opportunities Available to Tribal Governments Under the TRI Program Rule

Comment 1:
	The Heritage Foundation, the National Association of SARA Title III Program Officials (NASTTPO), the Oklahoma Department of Environmental Quality (ODEQ), and the Oklahoma Hazardous Materials Emergency Response Commission (OHMERC), all commented that section 313(a) of EPCRA requires a facility owner or operator to submit the form to two, and only two, governmental authorities: the EPA Administrator and the appropriate State official or officials, as designated by the Governor.  These commenters argue that EPA can neither relieve the facility of the statutory obligation to submit the form to State officials nor require the facility to submit the form to any authority other than the EPA or the State. 
 
	The commenters further argue that section 329(9) of EPCRA, the definition of "State," does not include Indian Tribes.  The commenters argue that when Congress intends to include Tribes within the definition of "State," it does so clearly, and the commenter points to the Clean Air Act, the Safe Drinking Water Act, and the Clean Water Act as examples of such clear intentions.  The Heritage Foundation also notes that Congress expressly included a provision that Tribes should be afforded substantially the same treatment as States for purposes of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.  The Heritage Foundation argues that the use of this language in CERCLA and its corresponding absence in EPCRA indicates an intent to preclude Tribes from being treated similar to States for purposes of EPCRA.  The commenters argue that EPA does not have the 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."  

Response 1:
	EPCRA does not explicitly address the role of Tribes in implementing Title III programs.  EPA notes, however, that relevant authorities in Indian country generally lie with Tribes and the federal government, and not with States.  See, e.g., Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998).  EPA does not interpret the statute's silence regarding Tribes and Indian country as demonstrating the requisite clear Congressional intent to extend State roles into such areas.  Further, EPA does not agree with the commenters' premise that when a statute is silent as to the role of Tribes, EPA is precluded from exercising its discretion to fill gaps by designating Indian Tribes as the appropriate implementing entities in Indian country.  Rather, EPA views the statute's silence as reserving to EPA's discretion the appropriate means to fill implementation gaps in Indian country.  In view of the critical importance of local leadership in Title III implementation, EPA has exercised its discretion to treat Tribes as the appropriate entities to receive TRI reports for facilities in their Indian country.  EPA notes that this approach is consistent with existing tribal roles under EPA's Emergency Planning and Notification regulations at 40 CFR Part 355.  

Comment 2:
	NASTTPO and OHMERC comment that Tribes do not have the legal ability to implement EPCRA.  The commenters argue that because this rule involves the regulation of non-members, i.e., non-Indians, that own land in fee within Indian reservations and the regulation of facilities adjacent to, but not within, Indian country, express authorization by Congress is required for Tribes to exercise this legal authority.  NASTTPO cites Montana v. United States, 450 U.S. 544 (1981), for the proposition that tribal jurisdiction over nonmembers is limited.  

Response 2: 
      EPA disagrees with the commenters' premise that Tribes are unable to implement the EPCRA roles included in this rulemaking in Indian country and notes that this rulemaking does not change the reporting requirements for facilities adjacent to, but not within, Indian country.  EPA notes that in the prior rulemaking establishing tribal roles in implementing Title III, the Agency concluded that Tribes are generally able to exercise sufficient authority to carry out Title III emergency planning and response activities in Indian country. 55 FR 30632, 306041 (July 26, 1990).  See also "Summary and Response to Comments Received on Notice of Proposed Rulemaking Under Sections 311 and 312 of the Superfund Amendments and Reauthorization Act of 1986  -  March 29, 1989" (June 20, 1990).  EPA continues to believe that Tribes are the appropriate entities for such functions in Indian country.  This is especially true with regard to the functions at issue in this rulemaking, which do not include any separate regulatory program approval or other exercise of regulatory authority by Tribes.  Tribes will simply need to accept the reports filed by covered facilities pursuant to statutory requirements.  EPA is not approving any separate regulatory or enforcement functions for Tribes, as such functions by EPA are not necessary elements of this program.  With regard to the opportunities for Tribes to petition EPA to add chemicals or facilities to the TRI program, we note that it is EPA, not Tribes or States, who ultimately decides which chemicals and facilities will be covered.  The exercise of this federal function by EPA does not entail any exercise of regulatory authority by Tribes (or States).  

Comment 3: 
      NASTTPO, OHMERC, and Oklahoma Independent Petroleum Association (OIPA) comment that EPA has not demonstrated a need to take the current action because States, Tribes, and Local Emergency Planning Committees (LEPCs) currently work well together to improve community preparedness.  The commenters note that Tribes currently are able to access TRI data, and EPA could implement the approach of providing TRI information to Tribes without this rulemaking while still requiring submission of information to the State.  NASTTPO and OHMERC additionally noted that they could support an obligation to report to both States and Tribes. Additionally, OIPA requested clarification on why EPA has waited for over 20 years to resolve the oversight of inadvertently omitting the provisions from the 1990 rulemaking. 

Response 3: 
      EPA acknowledges and commends the efforts and accomplishments of States, Tribes, and LEPCs that have worked to create programs that identify risks and emphasize emergency preparedness.  EPA believes that Tribes are the appropriate governments for implementing Title III in Indian country.  EPA considers this rulemaking to be consistent with the past work of States and Tribes in that it will further localize chemical awareness and emergency response planning as intended by EPCRA.  
      
      EPA believes that the nature of emergency planning requires that a single relevant local entity be responsible for implementing Title III in a given area.  While EPA encourages Tribes and States to share reporting information from facilities in which both entities may have an interest, only one entity may be responsible for implementing the program, and EPA interprets EPCRA to require reporting to two entities only: the relevant local entity and EPA. In addition, when EPA makes TRI data available to the public three weeks to a month following the reporting deadline, States have access to TRI data outside of the State's jurisdiction.
      
      Regarding EPA's delay in rectifying the overwritten provisions from 1990, EPA first internally identified this oversight during late 2010 within the office, and since that time, formed a team to address the issue. Over the past 20-plus years since the 1990 rulemaking, EPA never received external feedback on the oversight. In addition, since the 1990 revision was broader in scope and established tribal roles in other aspects of EPCRA, the omission of only this specific section of the rule made the issue harder to identify.

Comment 4: 
      The Fond du Lac Band and one individual commenter sought an extension of the rule to include lands ceded by treaties that may be used by Tribes for hunting, fishing, and gathering.  These commenters also asked that EPA extend this action to lands ten miles away from any Indian reservation due to the migration of air emissions.  

Response 4: 
      EPA recognizes that the problem presented by releases from facilities in cross-border areas is present in any emergency response scheme that relies on reporting to local officials.  EPCRA recognizes this issue and encourages cross-boundary cooperation; section 304(b)(1) requires that emergency notification be given to "the State emergency planning commission of any State likely to be affected by the release."  With regard to Indian country, EPA understands Indian Tribes to be within the scope of "State" for the purposes of section 304(b)(1) notification.  EPA encourages Tribes, State Emergency Response Commissions (SERCs), and LEPCs to participate in joint planning and cooperative efforts to prepare for potential emergencies.  
      
      EPA declines to extend the rule as sought because of the local nature of emergency planning.  It is important that one entity be responsible for emergency planning in an area to enable effective emergency response.  EPA encourages joint planning and cooperative efforts between LEPCs, SERCs, and Tribes to address these entities' interests in emergency response planning in lands outside their borders.  
	
Comment 5: 
      ODEQ, OIPA, and OHMERC comment that this action will make TRI data more difficult to obtain, particularly in Oklahoma, where the status of lands is often uncertain. The commenters argue that the public and first responders will need to take steps to evaluate the status of the land before knowing where to seek relevant reporting information. ODEQ adds that this rule could endanger first responders, LEPCs, and local residents because they will not be able to easily determine which hazardous materials are within their communities, or how to respond to a chemical release because these facilities would only be required to report to a tribal government, not the DEQ. Additionally, these commenters note that they find EPA's database unreliable, because the information is behind current data by the time it becomes public.  

Response 5: 
      EPA recognizes the need to publish current TRI data, and released the preliminary data release for 2010 reporting information on July 28, 2011, less than one month after the July 1[st] reporting deadline. 
      
      In addition, EPA believes that in most cases, determining whether reporting facilities are located within Indian country will be straightforward, and there should be little or no confusion regarding such locations.  This is especially true for facilities that are covered by regulatory programs under other federal environmental statutes, e.g., the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act, as the land status of their locations may already have been considered in determining the applicable regulatory agency.  The EPA recognizes that certain rarer situations may raise more complex factual scenarios.  In such cases, EPA intends to work with the relevant Tribe, State, and facility to assess the Indian country status of the particular facility's location.  EPA believes that sufficient information will be available for first responders to determine the appropriate source for reporting information. EPA does not believe that this rule will increase risk to first responders and emergency response personnel.  While States and Tribes will be one resource for TRI data, EPA houses all of the reported toxic release information from facilities in one comprehensive database which provides a complete account of facilities and information on their chemicals.   EPA makes TRI release data available to the public approximately three weeks to a month after reports are submitted.  During the three-week period between new report submission and public availability, EPA encourages emergency response personnel to work with States, Tribes and EPA to assist in filling any alleged temporary data gaps.  In anticipation of an emergency, EPA also encourages such collaboration so that emergency response personnel can preemptively clarify the land status of any facilities of interest that may be in Indian country. 

Comment 6: 
      ODEQ and OHMERC comment that EPA's interpretation of EPCRA is unreasonable because it removes the state's responsibility for accepting TRI reports and making them publicly available.  

Response 6: 
      EPA does not believe that EPCRA designates states as the responsible entity for accepting TRI reports for facilities in Indian country.  EPA notes that, consistent with applicable principles of federal Indian law, it is the federal government and Tribes, and not the States, that generally implement programs in Indian country.  See, e.g., Alaska v. Native Village of Venetie Tribal Government, 522 U.S. at 527 n.1.  EPA does not interpret the language or legislative history of Title III as expressing any Congressional intent to extend State programs into Indian country.  

Comment 7: 
      OIPA comments that if the proposed rule is finalized, implementation should be delayed, because EPA and Tribes need time to develop a way for reporters to determine Indian country in Oklahoma.  

Response 7: 
      EPA does not believe there is any programmatic benefit to delaying implementation of this rule or establishing new deadlines.  The risks from chemical accidents are real and current, and EPA encourages the communities in which these risks exist to move quickly and expeditiously to begin addressing those risks. 
       
      In addition, as noted above, EPA believes that in most cases, determining whether reporting facilities are located within Indian country will be straightforward.  This is especially true for facilities that are covered by regulatory programs under other federal environmental statutes, e.g., the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act, as the land status of their locations may already have been considered in determining the applicable regulatory agency.   EPA also notes that assessments of whether a reporting facility is located in Indian country can generally be easily verified through consultation with the Department of the Interior or through reference to readily available materials.  As stated above, EPA recognizes that certain rarer situations may raise more complex factual scenarios.  In such cases, EPA intends to work with the relevant State, Tribe, and facility to assess the Indian country status of the particular facility's location. EPA notes that it is ultimately a facility's responsibility to ascertain whether it is required to report to the Tribe or State, in addition to EPA.

Comment 8: 
      OIPA comments that States will not have access to TRI information in Indian country and will thus have potential data gaps.

Response 8:
      EPA generally makes TRI data available to the public less than one month after the July 1[st] reporting deadline, thus making any alleged data availability gaps temporary and short-term in nature. We note that OIPA's concern would also apply to cross-border situations between States, which is an issue that exists irrespective of this rulemaking. Similarly, Tribes have expressed interest in release data for areas near, but outside of, their Indian country.  During the period between report submission and public data availability, EPA encourages States and Tribes to work together and with EPA if they have an immediate need to obtain any TRI data which may have been reported but not yet made available to the public.  

Comment 9: 
      ODEQ and OHMERC comment that this action may have adverse effects on compliance monitoring.  ODEQ states that it uses TRI data to compare reported quantities of releases to media-permitted releases, and this activity has revealed several releases in excess of permitted releases in the past.  ODEQ alleges that a delay in getting updated TRI information would delay this comparison and prolong potential noncompliance.  

Response 9: 
      EPA recognizes the need to publish current TRI data, and released the preliminary data release for 2010 reporting information on July 28, 2011, less than one month after the July 1[st] reporting deadline. With regard to compliance monitoring under federal environmental laws, EPA also notes that it is generally EPA or the relevant Indian Tribe that implements environmental programs in Indian country.  State programs are generally not approved by EPA for such areas.

Comment 10: 
      OIPA requests that EPA further consider the impact on regulated entities and specifically asks whether the Economic Analysis included TRI facilities on Indian allotments.  OIPA asserts that there will be a cost in determining whether or not a facility is on an allotment.  
                                       
Response 10: 
      EPA has developed an economic analysis to assess the impact on facilities located in Indian country. The economic analysis estimates incremental economic burden for facilities that are required to report releases to TRI. The term Indian country, as defined in 40 CFR 372.3, includes Indian allotments, so EPA therefore accounted for such facilities in its universe of those affected by this rule. The Agency's estimation of burden to a facility included coordination with EPA and other offices regarding the Indian country issue. Originally, we estimated the time it would take for a facility to make this determination would be, on average, about 10 minutes. This 10-minute assumption considered the fact that most facilities are already aware of their geographic status relating to Indian country. In light of OIPA's concern, EPA increased the average time (over the full universe of facilities) for a facility to make this determination, including consulting with EPA as appropriate, to 30 minutes. This increase in reporter burden for compliance determination is reflected in the final economic analysis and raises the total first year incremental cost from $377,695 to $388,161, based on an updated total of 6,985 burden hours. EPA recognizes that certain rarer situations may raise more complex factual scenarios.  In such cases, EPA intends to work with the relevant State, Tribe, and facility to assess the Indian country status of the particular facility's location.  

Comment 11: 
      The National Tribal Air Association (NTAA) comments on the potential economic impact and implementation issues for Tribes.  NTAA comments that it is concerned about the increased workload for Tribes and asks that EPA share the rationale of the cost analysis or conduct a benefits analysis.  NTAA requests that EPA work with Tribes to assist Tribes in easily managing the data and using the data to educate the community.  NTAA also requests assistance with upgrades to paper or electronic reporting systems.

Response 11: 
      As described by the rule, a Tribe's only responsibility would be to receive the submitted TRI report(s). Per the rule, Tribes are not required to manage data, i.e., analyze or disseminate data, or educate their community, although EPA does encourage the use of the TRI data for community right-to-know purposes. Separate from this rule, EPA already works with tribal communities to help them better understand the TRI data as well as the software tools with which individuals can access and analyze the releases on or near their location. EPA will continue to work with Tribes in this manner, and the Agency's intent through this rule is to increase tribal participation in the TRI program. Therefore, as Tribes and States will now have similar responsibilities and rights pertaining to TRI report receipt and chemical petitioning, EPA expects that Tribes may choose to increase their focus on the TRI. EPA is prepared to work with interested Tribes to increase their awareness and understanding of the TRI program.

Comment 12: 
      The NTAA requested clarification about the procedure for petitioning to add TRI facilities.  

Response 12: 
      EPCRA section 313(b)(2) discusses the addition of facilities to the TRI list by the Administrator, including at the request of a Governor of a State with regard to facilities located in that State.  To add a facility, the Administrator must determine "that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at such facility, or such other factors as the Administrator deems appropriate."  
      
      EPCRA section 313(e) discusses the petition process for adding a chemical to or deleting a chemical from the TRI list.  When any person petitions to add or delete a chemical from the list, then EPA must initiate a rulemaking to add or delete the chemical or publish an explanation of why the petition is denied within 180 days. When a State Governor -- or a Tribal Chairperson or equivalent elected official -- petitions to add a chemical, the chemical will be added to the list after 180 days unless EPA has initiated a rulemaking to add the chemical to the list or publish an explanation of why the petition does not meet the requirements of section 313(d)(2).  
      
      EPA is adding text at 40 CFR 372.20 to describe the process for petitioning EPA to add a facility to the TRI list of covered facilities or to add a chemical to or delete a chemical from the TRI list of covered chemicals.  

Comment 13: 
      NTAA asserted that tribal governments may enter into memoranda of agreement with EPA to implement the exchange of information between governments.  NTAA asked if there could be a full delegation of TRI programs under the rule rather than working under a memorandum of agreement.  

Response 13:  
      Although EPA agrees that EPA and Tribes may enter into memoranda of agreement (MOAs) for a variety of purposes, including the exchange of appropriate information, EPA notes that the tribal roles established under this regulation would not necessitate MOAs for purposes of tribal receipt of TRI reporting information, or for Tribes to petition EPA for the addition of chemicals or facilities for purposes of relevant TRI reporting requirements.  The requirement for facilities to report to Tribes  -  in addition to EPA  -  is consistent with the statute, as well as the rule, and does not include any corresponding requirement for an MOA between EPA and Tribes.  EPA also notes that the TRI reporting requirements do not involve any separate programmatic action such as a program approval or delegation for Tribes or States.

Comment 14: 
      The Fond du Lac Band, the NTAA, and several other commenters approved of this rule as it promotes tribal sovereignty and will better enable Tribes to understand toxic releases within Indian country.  The Fond du Lac Band submitted several additional comments about the TRI Program. 

Response 14: 
      EPA appreciates these commenters' support and agrees that this rule is consistent with the concept of tribal sovereignty for environmental protection in Indian country.  EPA also appreciates the interest and comments regarding other aspects of the TRI Program, but these comments are outside the scope of this particular rulemaking.  
