In 2020, the CARES Act provided short-term funding for clean water projects, but the issue of underinvestment in tribal water infrastructure needs extensive and consistent support because of the widespread problem of contamination. One problem that is specifically overlooked is the issue of reporting leaking underground storage tanks (LUSTs) in Indian country. This article presents the inadequate system of reporting LUSTs in Indian country as a barrier to clean water for reservations and why the U.S. Environmental Protection Agency (EPA) should be enforcing underground storage tank (UST) standards in a way that adequately tracks responsible parties and cleanup activities.
A lack of clean water leads to unhealthy hygiene practices since contaminated water is extremely dangerous for human consumption. During the COVID-19 pandemic, Indigenous Americans died at twice the rate of white Americans, and their inability to access clean water likely contributed to this disparity. An issue that adds to the widespread lack of clean water is the presence of USTs, which are commonly placed around gas stations, service stations, airports, dry cleaners, homes, or truck refueling facilities.
USTs store dangerous substances and toxic materials, but the federal government only regulates USTs that store petroleum or substances that are labeled hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Approximately 95 percent of USTs store petroleum products, and the other 5 percent store industrial chemicals, pesticides, or food products. The regulations of USTs are not covered under CERCLA or the Toxic Substances Control Act ; there is a different system under Solid Waste Disposal. There are also UST provisions in the Energy Policy Act, as well as LUST provisions in the American Recovery and Reinvestment Act.
Most USTs were made of bare steel up until the mid-1980s. These USTs are likely to corrode, and many tanks and their connected piping will rust, which allows the contents of the UST to leak. The inadequate construction of these tanks or faulty installation can also cause leakage. Moreover, USTs containing toxic substances may impair the cleanliness of drinking water, since these substances move through soil quickly and spread easily. These leaking underground storage tanks are one threat to clean drinking water, and releases occur across the United States, meaning the threat is prominent across the country.
The EPA is responsible for USTs in Indian country and reservations. Yet, EPA enforcement adheres to state or regional funding and programs, depending on how the states/regions choose to fund monitoring projects and cleanups. States are responsible for identifying leaks from tanks that are both federally and not federally regulated since many have a separate funding plan from the LUST Trust Fund. Less than half of states inspect all their USTs, and most tanks may never be inspected. This means that underprivileged communities are likely to be overlooked due to a lack of funding. Even with these programs in place, state and federal programs fail to enforce the immediate cleanup of LUSTs, which threatens communities’ water supplies.
The issue of identifying the responsible parties of LUSTs is due to a severe lack of transparency regarding USTs in Indian country. EPA regions lack information on cleanup activities, and they are unaware of how funding is being used to address USTs nationwide. In 2014, 41 percent of the funding of UST releases in Indian country came from states, 32 percent came from the responsible party, 15 percent came from the LUST Trust Fund, and 12 percent came from other sources. This shows the lack of uniformity in cleaning USTs, which creates an unorganized system of documenting cleanups.
As stated before, EPA headquarters is responsible for USTs in Indian country, but with permission from Tribes, states can fund and oversee cleanups in Indian country where regions are responsible for monitoring the corrective actions. This is important when tanks present in Indian country are holding substances not regulated by the EPA’s UST program, which are still responsible for freshwater pollution. There are also issues with state funding because state action involving the cleanup of LUSTs are “minimally documented.” There is a lack of consistency as to which funds are provided to monitor or clean up leakages, and the EPA has failed to create guidelines to determine which LUSTs present the greatest threat.
The federal UST program provides funding to the Tribal UST program in three different parts. The first is “Environmental Programs and Management funds,” which goes toward UST prevention. The other two funds go toward LUSTs: one for the prevention of leaks, and one for the cleanup program. While the Energy Policy Act of 2005 gives “priority to releases from LUST sites in Indian country that present the greatest threats to human health or the environment,” the process of deeming what constitutes the “greatest” threat is arbitrary and results in minimal documentation for these LUSTs. Also, it is unclear whether “priority” means cleanup activities, funding, or monitoring. However, any leak from USTs should be considered the greatest threat because the volume of a soda can (12 ounces) is able to contaminate 40,000 gallons of water. Therefore, every leak in Indian country should be considered the greatest threat to human health or the environment.
In Indian country, owners (also called responsible parties) of the tanks are primarily relied on to conduct and pay for cleanups. This can be tricky because the EPA may identify the owner of the tank, but the responsible party may find it difficult to start or finish cleanups since the EPA estimates cleanup costs to be $125,000 on average. If groundwater contamination is extensive due to LUSTs, costs could be more than $1 million to clean the site effectively. Moreover, if the owner of the tank cannot be identified because they failed to document its location, the unregistered tank can delay the cleanup project. Tanks can also have long histories with multiple owners involved; therefore, regulatory authorities may have to make educated guesses on who is responsible for the tank.
Whether a leaking tank is removed under the LUST Trust Fund or not, the EPA should oversee the cleaning of any tank located in Indian country because of the fragile state of the water supply within Indigenous lands. According to a report on USTs in South Carolina, those conducting the study found that “preventing LUSTs is less expensive, invasive, and hazardous to the environment . . .” Properly managing these tanks includes the implementation of self-regulating technologies, mandatory reports, and an environmental hazard surveillance system, which may “significantly reduce the prevalence of LUSTs” and is especially important for disadvantaged communities. Another study found that “compliance… entirely mitigated the effect of a leak on low birthweight [of newborns]. In terms of protecting human health, these regulations were quite successful.” Despite the most recent revisions of UST regulations increasing coverage of Indian country, the changing environment requires more than empty promises; it requires more boots on the ground, actively monitoring the statuses of USTs.
New USTs that are installed have a method of detecting leaks, but older tanks should be monitored more consistently since the precise age may not always be known. Monitoring tanks involve several considerations, one being regular inspections that help identify potential problems before a leak occurs, while another is creating a routine maintenance program, which involves cleaning the tank, inspecting and tightening the connections to piping, and replacing parts as they corrode or become damaged. However, the UST program needs to intensify the practice of recordkeeping in Indian country. As stated by the EPA’s Office of Inspector General, “Without documentation and controls for the prioritization of UST cleanups in Indian country, the sites with the greatest health and environmental risks may not be addressed.” The owners of USTs in Indian country are poorly recorded, which results in confusion as to who should pay for the cleanup of LUSTs.
Therefore, more time and energy need to be administered to enforce the UST program in Indian country, and the EPA should be at the frontline of these efforts. Indian country faces severe disparities in human and environmental health, and strengthening the EPA’s UST program for these nations now will create fewer problems for the future, which is important considering the effects of climate change.
