[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8354]


[[Page Unknown]]

[Federal Register: April 7, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
 
ENVIRONMENTAL PROTECTION AGENCY

[FRL-4860-7]

South Dakota; Tentative Determination of Adequacy of State's 
Municipal Solid Waste Permit Program over Non-Indian Lands for the 
Former Lands of the Yankton Sioux, Lake Traverse (Sisseton-
Wahpeton) and Parts of the Rosebud Indian Reservations

AGENCY: Environmental Protection Agency (Region 8).

ACTION: Notice of tentative determination on application of the State 
of South Dakota for program adequacy determination, public comment 
period and public hearing.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and 
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, requires States to develop and implement 
permit programs to ensure that municipal solid waste landfills (MSWLFs) 
which may receive hazardous household waste or conditionally exempt 
small quantity generator waste will comply with the revised Federal 
MSWLF Criteria (40 CFR part 258). RCRA section 4005(c)(1)(C) requires 
the Environmental Protection Agency (EPA) to determine whether States 
have adequate ``permit'' programs for MSWLFs, but does not mandate 
issuance of a rule for such determinations. EPA has drafted and is in 
the process of proposing a State/Tribal Implementation Rule (STIR) that 
will provide procedures by which EPA will approve, or partially 
approve, State/Tribal landfill permit programs. The Agency intends to 
approve adequate State/Tribal MSWLF permit programs as applications are 
submitted. Thus, these approvals are not dependent on final 
promulgation of the STIR. Prior to promulgation of the STIR, adequacy 
determinations will be made based on the statutory authorities and 
requirements. In addition, States/Tribes may use the draft STIR as an 
aid in interpreting these requirements. The Agency believes that early 
approvals have an important benefit. Approved State/Tribe permit 
programs provide for interaction between the State/Tribe and the owner/
operator regarding site-specific permit conditions. Only those owners/
operators located in States/Tribes with approved permit programs can 
use the site-specific flexibility provided by part 258 to the extent 
the State/Tribal permit program allows such flexibility. EPA notes that 
regardless of the approval status of a State/Tribe and the permit 
status of any facility, the Federal landfill Criteria will apply to all 
permitted and unpermitted MSWLFs.
    The State of South Dakota applied for a determination of adequacy 
under section 4005 of RCRA for jurisdiction over non-Indian lands for 
the former lands of the Yankton Sioux Reservation, Lake Traverse 
(Sisseton-Wahpeton) Reservation and parts of the Rosebud Indian 
Reservation lying within Gregory, Tripp, Lyman and Mellette Counties. 
EPA has reviewed South Dakota's application and has made a tentative 
determination that the South Dakota application is adequate for all 
lands, other than Indian Country as defined in 18 U.S.C. section 1151, 
located in the following areas:

    (1) Former lands of the Lake Traverse Indian Reservation of the 
Sisseton-Wahpeton Sioux Tribe;
    (2) Former lands of the Yankton Sioux Reservation; and
    (3) Former lands of the Rosebud Sioux Reservation, lying within 
Gregory, Tripp, Lyman and Mellette Counties.
    South Dakota's application for program adequacy determination and 
the Tribal comments received in regard to that application are 
available for public review and comment.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF program, the Region 
has tentatively scheduled a public hearing on this determination. If a 
sufficient number of people express interest in participating in a 
hearing by writing the Region or calling the contact given below within 
30 days of the date of publication of this notice, the Region will hold 
a hearing on the date given below in the ``DATES'' section. The Region 
will notify all persons who submit comments on this notice if it 
decides to hold the hearing. In addition, anyone who wishes to learn 
whether the hearing will be held may call the person listed in the 
``CONTACTS'' section below.
DATES: All comments on South Dakota's application for a determination 
of adequacy must be received by the close of business on June 2, 1994. 
The public hearing is tentatively scheduled for 1 p.m. to 3 p.m., June 
2, 1994, at the South Dakota Department of Environment and Natural 
Resources, 523 East Capitol, Floyd Matthews Training Center, Pierre, 
South Dakota, 57501. Should a hearing be held, EPA may limit oral 
testimony to five minutes per speaker, depending on the number of 
commenters. Commenters presenting oral testimony must also submit their 
comments in writing by close of business on June 2, 1994. The hearing 
may adjourn earlier than 3 p.m. if all of the speakers deliver their 
comments before that hour. South Dakota will participate in the public 
hearing held by EPA on this subject.

ADDRESSES: Copies of South Dakota's application for adequacy 
determination are available from 8 a.m. to 4 p.m. at the following 
addresses for inspection and copying: South Dakota Department of 
Environment and Natural Resources, Office of Waste Management, Foss 
Building, 523 East Capitol, Pierre, South Dakota, 57501; and USEPA 
Region 8 Library, 999 18th Street, First Floor, Denver, Colorado, 
80202-2466, telephone (303) 293-1444. Written comments should be sent 
to Ms. Judith Wong, Mail Code 8HWM-WM, USEPA Region 8, 999 18th Street, 
suite 500, Denver, Colorado, 80202-2466.

FOR FURTHER INFORMATION CONTACT: Judith Wong, Mail Code 8HWM-WM, Waste 
Management Branch, USEPA Region 8, 999 18th Street, Denver, Colorado, 
80202-2466, telephone (303) 293-1667.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that MSWLFs comply with the Federal 
Criteria under part 258. Subtitle D also requires in section 4005 that 
EPA determine the adequacy of State municipal solid waste landfill 
permit programs to ensure that facilities comply with the revised 
Federal Criteria. To fulfill this requirement, the Agency has drafted 
and is in the process of proposing a State/Tribal Implementation Rule 
(STIR). The rule will specify the requirements which State/Tribal 
programs must satisfy to be determined adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of the STIR. EPA interprets the requirements for 
States or Tribes to develop ``adequate'' programs for permits or other 
forms of prior approval to impose several minimum requirements. First, 
each State/Tribe must have enforceable standards for new and existing 
MSWLFs that are technically comparable to EPA's revised MSWLF criteria. 
Next, the State/Tribe must have the authority to issue a permit or 
other notice of prior approval to all new and existing MSWLFs in its 
jurisdiction. The State/Tribe also must provide for public 
participation in permit issuance and enforcement as required in section 
7004(b) of RCRA. Finally, EPA believes that the State/Tribe must show 
that it has sufficient compliance monitoring and enforcement 
authorities to take specific action against any owner or operator that 
fails to comply with an approved MSWLF program.
    EPA Regions will determine whether a State/Tribe has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
plans to provide more specific criteria for this evaluation when it 
proposes the State/Tribal Implementation Rule. EPA expects States/
Tribes to meet all of these requirements for all elements of a MSWLF 
program before it gives full approval to a MSWLF program.
    On April 29, 1993, South Dakota submitted an application for 
adequacy determination for the State's municipal solid waste landfill 
permit program. On October 8, 1993 (58 FR 52486), EPA determined that 
South Dakota's application for adequacy determination met all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
South Dakota was granted a determination of adequacy for all portions 
of its municipal solid waste landfill permit program. However, EPA's 
decision to approve the South Dakota MSWLF permitting program did not 
extend to ``Indian Country,'' as defined in 18 U.S.C. 1151, including 
the following ``existing or former'' Indian reservations in the State 
of South Dakota:

    1. Cheyenne River;
    2. Crow Creek;
    3. Flandreau;
    4. Lower Brule;
    5. Pine Ridge;
    6. Rosebud;
    7. Sisseton;
    8. Standing Rock; and
    9. Yankton.
    Before EPA would be able to approve the State of South Dakota MSWLF 
permit program for any portion of ``Indian Country,'' the State would 
have to provide an appropriate analysis of the State's jurisdiction to 
enforce in these areas. In order for a State (or Tribe) to satisfy this 
requirement, it must demonstrate to the EPA's satisfaction that it has 
authority either pursuant to explicit Congressional authorization or 
applicable principles of Federal Indian law to enforce its laws against 
existing and potential pollution sources within any geographical area 
for which it seeks program approval. EPA had reason to believe that 
disagreement exists with regard to the State's jurisdiction over 
``Indian Country,'' and EPA was not satisfied that South Dakota had, at 
that time, made the requisite showing of its authority with respect to 
such lands.

B. State of South Dakota's Application Concerning Former Lands of 
the Yankton Sioux, Sisseton-Wahpeton and Parts of the Rosebud 
Indian Reservations

    On October 8, 1993, the State of South Dakota submitted an 
application amendment to EPA for approval of its solid waste permit 
program ``for regulation of solid waste activities on non-Indian lands 
for the former lands of the Yankton Sioux, Sisseton and parts of the 
Rosebud Indian Reservations.'' During a 30 day period, starting 
November 29, 1993, EPA requested comment on the State's application 
from certain affected parties. Cheyenne River Sioux, Sisseton-Wahpeton 
Sioux, Yankton Sioux and Rosebud Sioux Tribes submitted written 
comments on the State's assertion of jurisdiction.
    The Sisseton-Wahpeton Dakota Nation responded to the application of 
the State of South Dakota, expressing concern regarding issuance of a 
permit to Roberts County (South Dakota) for a new sanitary landfill and 
gave notice of the Tribe's intent to develop its capacity to manage its 
natural resources and enforce its codes within the original 1867 
boundaries of the Lake Traverse Reservation. All permits issued under a 
program determined by EPA to be adequate must meet minimum Federal 
standards, including a permit to Roberts County for a new sanitary 
landfill. The Tribe's intentions with regard to activities within the 
original boundaries of the Lake Traverse Reservation are duly noted, 
but the Tribe's authority to take such actions is not before EPA for 
decision at this time.
    On review of the arguments presented and following consultation 
with the Department of the Interior, EPA believes that the State of 
South Dakota has sufficiently demonstrated that the former Lake 
Traverse reservation was disestablished by Act of Congress (26 Stat. 
1039), as decided by the U.S. Supreme Court in DeCoteau v. District 
County Court, 420 U.S. 425 (1975).
    The Yankton Sioux Tribe argued that the Act of August 15, 1894 (28 
Stat. 286, 314) did not expressly disestablish the Yankton Sioux 
Reservation and that the Federal Court opinions relating to the issue 
are not controlling. On review of the arguments and consultation with 
the Department of the Interior, EPA believes that the State of South 
Dakota has sufficiently demonstrated that the Yankton Sioux Reservation 
was disestablished by the Act of 1894. See Weddellv. Meierhenry, 636 
F.2d 211 (8th Cir. 1980).
    The Rosebud Sioux Tribe argued that the Tribal Constitution asserts 
jurisdiction over all ``territory within the original confines of the 
Rosebud Indian Reservation'' and that Rosebud Sioux Tribe v. Kneip, 430 
U.S. 584 (1977) upheld tribal regulatory jurisdiction over all lands 
within Todd Country and on trust lands outside. The Agency does not 
today comment on the potential extent of tribal jurisdiction, but is 
only concerned with the extent of jurisdiction of the State of South 
Dakota. On review of the arguments and consultation with the Department 
of the Interior, EPA believes that the State of South Dakota has 
sufficiently demonstrated that the Rosebud Sioux Reservation was 
diminished by three Acts of Congress (33 Stat. 254; 34 Stat. 1230; and 
36 Stat. 448) to exclude from the Reservation all lands other than 
Indian Country lying within Gregory, Tripp, Lyman and Mellette 
Counties. See Rosebud Sioux Tribe v. Kneip.
    Accordingly, the Agency is making a tentative determination that 
the South Dakota program is adequate under section 4005 of RCRA for the 
disestablished areas within the former boundaries of the Lake Traverse 
and Yankton Reservations and the diminished portions of the Rosebud 
Sioux Reservation lying within Gregory, Tripp, Lyman and Mellette 
Counties. This tentative determination of adequacy does not extend to 
Indian Country presently located within these disestablished and 
diminished areas.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF program, the Region 
has tentatively scheduled a public hearing on this determination. If a 
sufficient number of people express interest in participating in a 
hearing by writing the Region or calling the contact within 30 days of 
the publication of this notice, the Region will hold a hearing on June 
2, 1994, 1 p.m. to 3 p.m. at the South Dakota Department of Environment 
and Natural Resources, 523 East Capitol, Floyd Matthews Training 
Center, Pierre, South Dakota, 57501.
    EPA will consider all public comments on its tentative 
determination received during the public comment period and during any 
public hearing held. Issues raised by those comments may be the basis 
for a determination of inadequacy for State of South Dakota's program. 
EPA will make a final decision on whether or not to approve South 
Dakota's program and give notice of it in the Federal Register. The 
notice will include a summary of the reasons for the final 
determination and a response to all major comments.
    Section 4005(a) of RCRA provides that citizens may use the citizen 
suit provisions of section 7002 of RCRA to enforce the Federal MSWLF 
criteria in 40 CFR part 258 independent of any State/Tribal enforcement 
program. As EPA explained in the preamble to the final MSWLF criteria, 
EPA expects that any owner or operator complying with provisions in a 
State/Tribal program approved by EPA should be considered to be in 
compliance with the Federal Criteria. See 56 FR 50978, 50995 (October 
9, 1991).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this notice from 
the requirements of section 6 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify 
that this approval will not have a significant economic impact on a 
substantial number of small entities. It does not impose any new 
burdens on small entities. This notice, therefore, does not require a 
regulatory flexibility analysis.
    Authority: This notice is issued under the authority of sections 
2002, 4005 and 4010 of the Solid Waste Disposal Act as amended; 42 
U.S.C. 6912, 6945 and 6949(a).

    Dated: March 31, 1994.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 94-8354 Filed 4-6-94; 8:45 am]
BILLING CODE 6560-50-F