[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: 94-8358]


[[Page Unknown]]

[Federal Register: April 7, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-4860-8]

 

Cheyenne River Sioux Tribe; Tentative Adequacy Determination of 
Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency (Region 8).

ACTION: Notice of tentative determination on application of Cheyenne 
River Sioux Tribe for full 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. EPA believes that 
adequate authority exists under RCRA to allow Tribes to seek an 
adequacy determination for purposes of sections 4005 and 4010.
    Cheyenne River Sioux Tribe applied for a determination of adequacy 
under section 4005 of RCRA. EPA reviewed Cheyenne River Sioux Tribe's 
MSWLF application and made a tentative determination that all portions 
of Cheyenne River Sioux Tribe's MSWLF permit program are adequate to 
ensure compliance with the revised MSWLF Criteria. Cheyenne River Sioux 
Tribe's application for program adequacy determination is available for 
public review and comment.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any Tribe's MSWLF program, the Region has 
tentatively scheduled a public hearing on this determination. If 
sufficient 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 Cheyenne River Sioux Tribe's application for a 
determination of adequacy must be received by June 1, 1994. The public 
hearing is tentatively scheduled for 7 p.m. to 9 p.m., June 1, 1994, at 
the Elderly Nutrition Center, Eagle Butte, South Dakota, 57625. 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 at the 
hearing on June 1, 1994. The hearing may adjourn earlier than 9 p.m. if 
all of the speakers deliver their comments before that hour. 
Representatives of the Cheyenne River Sioux Tribe will participate in 
the public hearing held by EPA on this subject.

ADDRESSES: Copies of Cheyenne River Sioux Tribe's application for 
adequacy determination are available from 8 a.m. to 4 p.m. at the 
following addresses for inspection and copying: Cheyenne River Sioux 
Tribe, Environmental Protection Department, Eagle Butte, South Dakota, 
57625, telephone (605) 964-6559; USEPA Region 8 Library, 999 18th 
Street, 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 19th Street, suite 500, Denver, Colorado, 80202-2466.

FOR FURTHER INFORMATION CONTACT: Ms. Judith Wong, Mail Code 8HWM-WM, 
Waste Management Branch, USEPA Region 8, 999 19th Street, suite 500, 
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 (and, as 
discussed below, allows Indian Tribes,) 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, 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. 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.
    EPA is extending to Tribes the same opportunity to apply for permit 
program approval as is available to States. Providing Tribes with the 
opportunity to apply for adequacy for purposes of adopting and 
implementing MSWLF permit programs is consistent with EPA's Indian 
Policy. This Policy, formally adopted in 1984, recognizes Tribes as the 
primary sovereign entities for regulating the reservation environment 
and commits the Agency to working with Tribes on a ``government-to-
government'' basis to effectuate that recognition. A major goal of 
EPA's Indian Policy is to eliminate all statutory and regulatory 
barriers to Tribal assumption of Federal environmental programs. 
Today's tentative determination to approve a tribal MSWLF permit 
program represents another facet of the Agency's continuing commitment 
to the implementation of this long-standing policy.
    EPA's interpretation of RCRA is governed by the principles of 
Chevron, USA v. NRDC, 467 U.S. 837 (1984). Where Congress has not 
explicitly stated its intent in adopting a statutory provision, the 
Agency charged with implementing that statute may adopt any 
interpretation which, in the Agency's expert judgment, is reasonable in 
light of the goals and purposes of the statute as a whole. Id. at 844. 
Interpreting RCRA to allow Tribes to apply for an adequacy 
determination satisfies the Chevron test.
    States generally are precluded from enforcing their civil 
regulatory programs on Tribal lands, absent an explicit Congressional 
authorization or State-Tribal agreement to do so. California v. Cabazon 
Band of Mission Indians, 480 U.S. 202, 216 and n.18 (1987). Yet, under 
the current statutory scheme, EPA generally is precluded from enforcing 
the MSWLF Criteria as well. Furthermore, Congress has not yet created 
an explicit role for Tribes to implement the subtitle D program, as it 
has done under most other major environmental statutes amended since 
1986 (Safe Drinking Water Act, CERCLA, Clean Water Act, Clean Air Act).
    RCRA does not explicitly define a role for Tribes under sections 
4005 and 4010 and reflects an undeniable ambiguity in Congressional 
intent. Indeed, the only mention of Tribes anywhere in RCRA is in 
section 1004(13), a part of the ``Definitions'' of key terms in RCRA. 
Section 1004(13) defines the term ``municipality'' to mean:

    A city, town, borough, county, parish, district or other public 
body created by or pursuant to State law, with responsibility for 
the planning or administration or solid waste management, or any 
Indian tribe or authorized tribal organization or Alaska Native 
village or organization[.]

Id. (emphasis added). The term ``municipality'', in turn, is used in 
sections 4008(a)(2) and 4009(a) of RCRA with reference to the 
availability of certain Federal funds and technical assistance for 
solid waste planning and management activities by municipalities. Thus, 
Congress apparently intended to make explicit that Tribes could receive 
funds and assistance when available in the same manner as municipal 
governments. However, Congress did not explicitly recognize any other 
role for Tribes under other provisions. There is no accompanying 
legislative history which explains why Tribes were included in section 
1004(13) and nowhere else.
    EPA does not believe that Congress, by including Tribes in section 
1004(13), intended to prohibit EPA from allowing Tribes to apply for an 
adequacy determination under subtitle D. First of all, it is clear that 
Tribes are not ``municipalities'' in the traditional sense. Tribes are 
not ``public bodies created by or pursuant to State law.'' Indeed, 
Tribes are not subject to State law except in very limited 
circumstances. Cabazon, supra. Indian Tribes are sovereign governments 
whose authority is subject only to Congressional approval. Worcester v. 
Georgia, 31 U.S. (10 Pet.) 515 (1832). There is no indication in the 
legislative history that Congress intended to abrogate any sovereign 
Tribal authority by defining them as ``municipalities'' under RCRA, 
i.e., that Congress intended section 1004(13) to subject Tribes to 
State law for RCRA purposes. Moreover, it is a well-established 
principle of statutory construction that Federal statutes which might 
arguably abridge Tribal powers of self-government must be construed 
narrowly in favor of retaining Tribal rights. F. Cohen, Handbook of 
Federal Indian Law, 224 (1981); See, e.g. Ramah Navajo School Board v. 
Bureau of Revenue, 458 U.S. 832, 846 (1982).
    EPA believes that inclusion of Indian Tribes in section 1004(13) 
was a definitional expedient, to avoid having to include the phrase 
``and Indian tribes or tribal organizations or Alaska Native villages 
or organizations'' wherever the term ``municipality'' appeared, not to 
change the sovereign status of Tribes for RCRA purposes. Second, given 
the limited number of times the term ``municipality'' appears in RCRA, 
it does not appear that Congress intended to define an all-inclusive 
role for Tribes for all potential statutory purposes.
    The ambiguity in RCRA regarding Indian Tribes also is evident from 
the structure of the 1984 Amendments. As mentioned earlier, Congress 
expressed a strong preference for a State lead in ensuring compliance 
with 40 CFR part 258, in that section 4005(c) allows EPA to enforce the 
Criteria only after a finding of inadequacy of the State permit 
program. Yet, the legislative history of the 1984 Amendments does not 
suggest that Congress intended to authorize States to implement such 
programs on Tribal lands or that Congress intended to override the 
general legal principle that States generally are precluded from such 
implementation. Cf. Washington Dept. of Ecology v. EPA, 752 F.2d 1465 
(9th Cir. 1985) (RCRA Subtitle C does not constitute an explicit 
delegation of authority to States to implement hazardous waste programs 
on Indian lands); accord, Nance v. EPA1, 645 F.2d 701 (9th Cir. 
1981). Thus, Congress has otherwise put States in a primary role for 
the MSWLF program, yet on Indian lands has failed to define how Tribes 
participate where States lack authority. EPA believes it necessary to 
harmonize the conflicts and resolve the ambiguities created by these 
provisions.
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    \1\By today's action EPA does not intend to prohibit a State 
from applying for approval of its MSWLF program extending to Indian 
lands. However, the State would either have to enter into an 
agreement with a Tribe or show the existence of specific 
Congressional authorization or independent civil regulatory 
authority to regulate these landfills. See, e.g., 53 FR 43080 (1988) 
(Washington application to regulate UIC wells on Indian lands).
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    EPA concludes that interpreting sections 4005, 4008, and 4010 to 
allow Indian Tribes to seek an adequacy determination is reasonable. 
Several factors enter into this determination. First, as discussed in 
the previous paragraph, this approach is consistent with subtitle D 
because it preserves Congressional intent to limit the Federal 
government's role in MSWLF programs. Absent the opportunity to seek a 
determination of adequacy, there would be few or no adequate permit 
programs in place on Indian lands (because the State lacked the 
authority and the Tribe could not apply for program approval), 
requiring the Federal government to assume a substantial role in MSWLF 
programs by having EPA enforce 40 CFR part 258 directly.
    In addition to expanding the Federal role, failure to approve 
Tribal programs would deny Tribes the option available to approved 
States of granting their MSWLF owners and operators flexibility in 
meeting the requirements of 40 CFR part 258. The revised Federal 
Criteria (40 CFR part 258) would be implemented without benefit of an 
EPA approved permit process and EPA would take enforcement actions as 
appropriate. All MSWLFs on Indian Lands, whether Tribal or private, 
would be in a disadvantaged position relative to other MSWLFs, being 
unable to take advantage of the flexibility that Congress built into 
Sections 4005 and 4010 and that EPA has incorporated into 40 CFR part 
258. By approving Tribal permit programs, however, MSWLFs on Indian 
Lands would be under the jurisdiction of the closest sovereign with 
sufficient permitting authority, i.e. the Tribe, rather than the 
Federal government.
    In the case of other environmental statutes (e.g., the Clean Water 
Act), EPA, in accord with its Indian Policy, has worked to ensure that 
Congress revises them at the earliest opportunity to define explicitly 
the role for Tribes under these programs. Yet, EPA also has stepped in 
on at least two occasions to allow Tribes to seek program approval 
despite the lack of an explicit Congressional mandate. Most recently, 
EPA recognized Indian Tribes as the appropriate authority under the 
Emergency Planning and Community Right-to-Know Act (EPCRA), despite 
silence on the Tribal role under EPCRA. 55 FR 30632 (1990). EPA 
reasoned that since EPCRA has no Federal role to backup State planning 
activities, failure to recognize Tribes as the authority under EPCRA 
would leave gaps in emergency planning on Indian lands. 54 FR 13000-
13001 (1989).
    EPA filled such a statutory gap much earlier as well, even before 
development of its formal Indian Policy. In 1974, EPA promulgated 
regulations which authorized Indian Tribes to redesignate the level of 
air quality applicable to Indian lands under the Prevention of 
Significant Deterioration (PSD) program of the Clean Air Act in the 
same manner that States could redesignate for other lands. See Nance v. 
EPA, 645 F.2d 701 (9th Cir. 1981) (upholding regulations). EPA 
promulgated this regulation despite the fact that the Clean Air Act at 
that time made no reference whatsoever to Indian Tribes or their status 
under the Act.2
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    \2\Congress ratified EPA's regulation in 1977 by explicitly 
authorizing Tribes to make PSD redesignations; the 1990 Amendments 
to the Act authorize EPA to allow Tribes to apply for approval to 
implement any programs EPA deems appropriate.
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    One Court already has recognized the reasonableness of EPA's 
actions in filling such regulatory gaps on Indian lands. In Nance, 
supra, the U.S. Court of Appeals for the Ninth Circuit affirmed EPA's 
PSD redesignation regulations described in the previous paragraph. The 
Court found that EPA could reasonably interpret the Clean Air Act to 
allow for Tribal redesignation, rather than allowing the States to 
exercise that authority or exempting Indian lands from the 
redesignation process. Id. at 713. The Court noted that EPA's rule was 
reasonable in light of the general existence of Tribal sovereignty over 
activities on Indian lands. Id. at 714.
    Today's tentative determination to approve the Cheyenne River Sioux 
Tribe's MSWLF permit program is analogous to the rule upheld in Nance. 
EPA is proposing to fill a gap in jurisdiction on Indian lands. As with 
the redesignation program, without recognition of Tribal MSWLF 
programs, there would be no acceptable way to implement at the Federal 
level a key statutory provision, i.e., the MSWLF permitting process. 
Furthermore, the case law supporting EPA's interpretation is even 
stronger today than at the time of the Nance decision. First, the 
Supreme Court reaffirmed EPA's authority to develop reasonable 
controlling interpretations of environmental statutes. Chevron, supra. 
Second, the Supreme Court emphasized since Nance that Indian Tribes may 
regulate activities on reservations, including those of non-Indians, 
where the conduct directly threatens the health and safety of the Tribe 
or its members. Montana v. United States, 450 U.S. 544, 565 (1981).
    In the case of MSWLFs, EPA believes that improperly maintained 
MSWLFs would not be protective of human health (including that of 
Tribal members) and the environment (including Indian lands). Tribes 
are likely to be able to assert regulatory authority over landfills on 
tribal lands to protect these interests. Allowing Tribes to seek 
adequacy would reflect general principles of Federal Indian law. Thus, 
as in Nance, EPA believes that allowing Tribes to apply for program 
approval reflects the sovereign authority of Tribes under Federal law.
    To have its MSWLF permit program deemed adequate by EPA, a tribe 
must have adequate authority over the regulated activities. Indian 
reservations include lands owned in fee by non-Indians. The extent of 
Tribal authority to regulate activities by non-Indians on such land has 
been the subject of considerable recent discussion. The test for civil 
regulatory authority over nonmember lands within Indian reservations 
was stated in Montana v. U.S., 450 U.S. 544, 565-66 (1981) (citations 
omitted):

    To be sure, Indian tribes retain inherent sovereign power to 
exercise some forms of civil jurisdiction over non-Indians on their 
reservations, even on non-Indian fee lands. A tribe may regulate * * 
* the activities of non-members who enter consensual relationships 
with the tribe or its members, through commercial dealing, 
contracts, leases, or other arrangements. * * * A tribe may also 
retain inherent power to exercise civil authority over the conduct 
of non-Indians on fee lands within its reservation when that conduct 
threatens or has some direct effect on the political integrity, the 
economic security, or the health or welfare of the tribe.

    In Brendale v. Confederated Tribes and Bands of the Yakima Indian 
Nation, 492 U.S. 408 (1989), the Court applied this test. Both the 
State of Washington and the Yakima Nation asserted authority to zone 
non-Indian real estate developments on two parcels within the Yakima 
reservation, one in an area that was primarily Tribal, the other in an 
area where much of the land was owned in fee by nonmembers. Although 
the Court analyzed the issues and the appropriate interpretation of 
Montana at considerable length, the nine members split 4:2:3 in 
reaching the decision that the Tribe should have exclusive zoning 
authority over property in the Tribal area and the State should have 
exclusive zoning authority over non-Indian owned property in the fee 
area.
    Specifically, the Court recognized Tribal authority over activities 
that would threaten the health and welfare of the Tribe, 492 U.S. at 
443-444 (Stevens, J., writing for the Court); id. at 449-450 (Blackmun, 
J. concurring). Conversely, the Court found no Tribal jurisdiction 
where the proposed activities ``would not threaten the Tribe's * * * 
health and welfare.'' Id. at 432 (White, J., writing for the Court). 
Given the lack of a majority rationale, the primary significance of 
Brendale is in its result, which was fully consistent with Montana v. 
United States.
    In evaluating whether a Tribe has authority to regulate a 
particular activity on land owned in fee by nonmembers but located 
within a reservation, EPA will examine the Tribe's authority in light 
of the evolving case law as reflected in Montana and Brendale and 
applicable Federal law. The extent of such Tribal authority depends on 
the effect of that activity on the Tribe. As discussed above, in the 
absence of a contrary statutory policy, a Tribe may regulate the 
activities of non-Indians on fee lands within its reservation when 
those activities threaten or have a direct effect on the political 
integrity, the economic security, or the health or welfare of the 
Tribe. Montana, 450 U.S. at 565-66. For further discussion of this 
issue see 56 FR 64876.
    However, in Brendale several justices argued that for a Tribe to 
have ``a protectable interest'' in an activity, the activity's effect 
should be ``demonstrably serious . * * *'' Brendale, 492 U.S. at 431 
(White, J.). In addition, in a more recent case involving Tribal 
criminal jurisdiction, a majority of the Court indicated in dicta that 
a Tribe may exercise civil authority ``where the exercise of tribal 
authority is vital to the maintenance of tribal integrity and self-
determination.'' Duro v. Reina, 110 S.Ct. 2053, 2061 (1990). See also 
Brendale, 492 U.S. at 450 (Blackmun, J.) (test for inherent Tribal 
authority whether activities ``implicate a significant tribal 
interest''); id. at 462 (Blackmun, J.) (test for inherent Tribal 
authority whether exercise of authority is ``fundamental to the 
political and economic security of the tribe * * *'').
    As discussed above, the Supreme Court, in recent cases, has 
explored several options to assure that the impacts upon Tribes of the 
activities of non-Indians on fee land, under the Montana test, are more 
than de minimis, although to date the Court has not agreed, in a case 
on point, on any one reformulation of the test. In response to this 
uncertainty, the Agency will apply, as an interim operating principle, 
a formulation of the standard that will require a showing that the 
potential impacts of regulated activities of non-members on the Tribe 
are serious and substantial.
    The choice of an Agency operating principle containing this 
standard is taken solely as a matter of prudence in light of judicial 
uncertainty and does not reflect an Agency endorsement of this standard 
per se. Moreover, as discussed below, the Agency believes that the 
activities regulated under the various environmental statutes generally 
have serious and substantial impacts on human health and welfare. As a 
result, the Agency believes that Tribes usually will be able to meet 
the Agency's operating principle, and that use of such a test by the 
Agency should not create an improper burden of proof on Tribes or 
create the administratively undesirable result of checkerboarding 
reservations.
    Whether a Tribe has jurisdiction over activities by nonmembers will 
be determined case-by-case, based on factual findings. The 
determination as to whether the required effect is present in a 
particular case depends on the circumstances. Nonetheless, the Agency 
also may take into account the provisions of environmental statutes and 
any legislative findings that the effects of the activity are serious 
in making a generalized finding that Tribes are likely to possess 
sufficient inherent authority to control reservation environmental 
quality. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 
U.S. 470, 476-77 and nn.6, 7 (1987). As a result, in making the 
required factual findings as to the impact of a solid waste activity on 
a particular Tribe, it may not be necessary to develop an extensive and 
detailed record in each case. The Agency also may rely on its special 
expertise and practical experience regarding the importance of solid 
waste management.
    The Agency believes that Congressional enactment of RCRA 
establishes a strong Federal interest in effective management of solid 
waste. EPA also notes that, where solid waste affects ground water 
which has pathways that allow it to migrate readily, it would be 
practically very difficult to separate out the effects of solid waste 
disposal on non-Indian fee land within a reservation from those on 
Tribal portions. In other words, any environmental impairment that 
occurs on, or as a result of, activities on non-Indian fee lands is 
very likely to impair Tribal lands. This also suggests that the serious 
and substantial effects of solid waste within the non-Indian portions 
of a reservation are very likely to affect Tribal health and welfare. 
EPA believes that a ``checkerboard'' system of regulation, whereby the 
Tribe and State split up regulation of solid waste on the Indian Lands, 
would exacerbate the difficulties of assuring compliance with RCRA 
requirements.
    The Agency also believes that the effects on Tribal health and 
welfare necessary to support Tribal regulation of non-Indian activities 
on Indian Lands may be easier to establish in the context of 
environmental regulation than with regard to zoning, which was at issue 
in Brendale. There is a significant distinction between land use 
planning and environmental regulation of solid waste under RCRA. The 
Supreme Court has explicitly recognized such a distinction: ``Land use 
planning in essence chooses particular uses for the land; environmental 
regulation does not mandate particular uses of the land but requires 
only that, however the land is used, damage to the environment is kept 
within prescribed limits.'' California Coastal Comm'n v. Granite Rock 
Co., 480 U.S. 572, 587 (1987). The Court has relied on this distinction 
to support a finding that States retain authority to carry out 
environmental regulation even in cases where their ability to carry out 
general land use regulation is preempted by Federal law. Id. at 587-89.
    Further, management of solid waste serves the purpose of protecting 
public health and safety, which is a core governmental function, whose 
exercise is critical to self-government. The special status of 
governmental actions to protect public health and safety is well 
established.3 By contrast, the power to zone can be exercised to 
achieve purposes which have little or no direct nexus to public health 
and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White, J.) 
(listing broad range of consequences of state zoning decision). 
Moreover, solid waste may affect ground water, which is mobile, freely 
migrating from one local jurisdiction to another, sometimes over large 
distances. By contrast, zoning regulates the uses of particular 
properties with impacts that are much more likely to be contained 
within a given local jurisdiction.
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    \3\ This special status has been reaffirmed by all nine justices 
in the context of Fifth Amendment takings law. See Keystone 
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n. 20 
(1987); id. at 512 (Rehnquist, C.J., dissenting).
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    Operationally, EPA's generalized findings regarding the 
relationship of solid waste management to Tribal health and welfare 
will affect the legal analysis of a Tribal submission by, in effect, 
supplementing the factual showing a Tribe makes in applying for program 
approval. Thus, a Tribal submission regarding jurisdiction will need to 
make a relatively simple showing of facts that there is or may be solid 
waste within the meaning of Subtitle D on the reservation and that the 
Tribe or Tribal members could be subject to exposure to that waste. The 
Tribe also must explicitly assert that activities of non-Indians 
regarding that waste would have a serious and substantial effect on the 
health and welfare of the Tribe. Once the Tribe meets this initial 
burden, EPA will, in light of the facts presented by the Tribe and the 
generalized statutory and factual findings regarding the importance of 
solid waste discussed above, presume that there has been an adequate 
showing of Tribal jurisdiction on fee lands, unless an appropriate 
governmental entity (e.g., an adjacent Tribe or State) demonstrates a 
lack of jurisdiction on the part of the Tribe.
    The Agency recognizes that jurisdictional disputes between Tribes 
and States can be complex and difficult and that it will, in some 
circumstances, be forced to address such disputes by attempting to work 
with the parties in a mediative fashion. However, EPA's ultimate 
responsibility is protection of the environment. In view of the 
mobility of environmental problems, and the interdependence of various 
jurisdictions, it is imperative that all affected sovereigns work 
cooperatively for environmental protection, rather than engage in 
confrontations over jurisdiction.
    For purposes of this determination, Tribe is defined to mean any 
Indian tribe, band, nation, or other organized group or community which 
is recognized by the Secretary of the Interior or Congress and which 
exercises substantial governmental duties and powers over any area. 
While the definition of Tribes in today's determination does not 
explicitly include Alaska Native Villages, EPA has not determined that 
such entities are ineligible to apply for permit program approval. 
Alaska Native entities (e.g., villages) may apply for permit program 
approval. Alaska Native Villages that demonstrate that their permit 
programs meet the requirements of today's proposal will be deemed 
adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of 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 must also 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 is further requesting Tribes to provide a statement of legal 
authority from the Tribal Attorney General or its equivalent 
demonstrating that the Tribe has adequate jurisdiction to regulate the 
MSWLFs on the reservation. In addition, EPA is requesting Tribes 
seeking program approval to demonstrate that it:
    (1) Is Federally recognized;
    (2) Has a government exercising substantial duties and powers; and
    (3) Is capable of administering a permit program. If the Tribe has 
already demonstrated to EPA that it meets the first two of these 
Criteria in the context of the approval to operate another EPA program, 
it need not do so again. EPA is also requesting Tribes to provide an 
explanation of the jurisdiction and responsibilities of all Tribal 
program implementing agencies (including any State agency acting 
pursuant to an agreement with the Tribe) and designation of a lead 
agency to facilitate communications between EPA and the Tribe. If a 
Tribe has already provided information and/or a legal statement on the 
Tribe's jurisdiction and capability to operate another EPA program, EPA 
requests the Tribe to provide only those additional materials necessary 
to support its application for MSWLF permit program approval. These 
requests incorporate the Criteria used in other environmental statutes 
to assess whether Tribes may apply for program approval.
    EPA Regions will determine whether a 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.

B. Cheyenne River Sioux Tribe

    On August 31, 1993, the Cheyenne River Sioux Tribe submitted an 
application for adequacy determination. EPA reviewed the Cheyenne River 
Sioux Tribe's application and tentatively determined that all portions 
of the Tribe's MSWLF permit program will ensure compliance with the 
revised Federal Criteria.
    The Cheyenne River Sioux Tribe is a Federally recognized Tribe (53 
FR 52830). The Tribe has a tri-partite system of government. The Tribal 
Council is the governing legislative body, comprised of fifteen elected 
representatives. The Tribe's Chairman is its chief executive officer. 
The Chairman and Executive Committee oversee day-to-day operations of 
the Tribal government departments subject to supervision and oversight 
by the Tribal Council. The judicial branch consists of criminal, civil, 
juvenile and appeals courts and operates independently of the Tribal 
Council and Executive branch. The Tribe's Environmental Protection 
Department administers the solid waste permit program.
    In making today's tentative determination that the Cheyenne River 
Sioux Tribe's MSWLF permit program is adequate, the Agency has 
tentatively determined that the Tribe has adequate authority over the 
activities regulated by such a program. This includes adequate 
authority to regulate the activities of non-Indians on fee lands within 
the Cheyenne River Sioux Reservation. The Agency believes that the 
Tribe has satisfactorily demonstrated that there is or may be solid 
waste within the meaning of Subtitle D on the Reservation and that the 
Tribe or Tribal members could be subject to exposure to that waste. The 
Tribe has also explicitly asserted that the threat to tribal health is 
serious and substantial. In light of the legal argument and facts 
presented by the Tribe and the generalized statutory and factual 
findings regarding the importance of solid waste discussed above, the 
Agency believes, after consultation with the Department of the 
Interior, that the Cheyenne River Sioux Tribe has adequate authority 
over the activities to be regulated by the Tribe's MSWLF permit 
program, including the activities of non-Indians.
    In its application, the Tribe has also demonstrated that it has 
adequate resources to manage a MSWLF permit program and adequate 
authority to issue permits, ensure compliance monitoring and 
enforcement, and to provide for intervention in civil enforcement 
proceedings.
    During a 30 day period starting November, 29, 1993, EPA requested 
comment on the Tribe's application from certain affected parties. The 
State of South Dakota submitted written comments.
    Following review of South Dakota's comments and consultation with 
the Department of Interior, the Agency believes that the Cheyenne River 
Sioux Tribe has demonstrated adequate jurisdiction to justify the 
Agency in making its tentative determination that the Tribe's MSWLF 
permit program is adequate. In reaching this conclusion, the Agency has 
considered whether the risk of potential impacts on tribal health and 
welfare from existing or future MSWLFs on fee lands is sufficient to 
justify tribal regulation of MSWLFs at this time. However, as today's 
Agency determination is only tentative and as public comments are 
solicited and will be considered before any final Agency decision, the 
Agency will welcome any available information from public or private 
sources that pertain to the potential impacts of MSWLFs on tribal 
health or welfare.
    In its comments, the State of South Dakota presented three main 
arguments:
    (1) That the Supreme Court opinion in Brendale v. Confederated 
Yakima Nation precludes an assertion of tribal jurisdiction in this 
case,
    (2) That the Supreme Court opinion in South Dakota v. Bourland 
reaffirms and extends the ``Montana-Brendale rule,'' as interpreted by 
the State of South Dakota, and
    (3) That Congress has not ``expressly delegated'' to any Indian 
tribe the power to regulate non-Indians on fee lands for purposes of 
the RCRA.
    The Agency has analyzed the significance of Brendale in detail and 
has summarized its conclusions in the Background section above. After 
considering the arguments provided by the State of South Dakota and 
after consultation with the Department of Interior on those arguments, 
the Agency has concluded that its analysis of tribal jurisdiction, 
summarized above, is sound. Further, the Agency believes that its 
analysis is not changed by the Supreme Court's opinion in Bourland. 
Lastly, with regard to Congressional delegation of regulatory power to 
Indian Tribes, the Agency's does not believe that a finding of such 
delegation is necessary to today's tentative determination.
    The Cheyenne River Sioux Tribe's MSWLF permit program, and the 
Agency's tentative determination of adequacy, extend to all Indian 
Country, defined in 18 U.S.C. section 1151, under the Tribe's control. 
This includes all lands within the exterior boundaries of the Cheyenne 
River Sioux Reservation and trust lands located outside the Reservation 
boundaries.
    The public may submit written comments on EPA's tentative 
determination until June 1, 1994. Copies of the Cheyenne River Sioux 
Tribe's application are available for inspection and copying at the 
locations indicated in the ``Addresses'' section of this notice.
    Although RCRA does not require EPA to hold a public hearing on a 
determination to approve any State/Tribe's MSWLF permit 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 1, 1994, at the Elderly Nutrition Center, Eagle 
Butte, South Dakota, 57625.
    EPA will consider all public comments on its tentative 
determination received during the public comment period or any public 
hearing held. Issues raised by those comments may be the basis for a 
determination of inadequacy for the Cheyenne River Sioux Tribe's 
program. EPA will make a final determination on whether or not to 
approve the Cheyenne River Sioux Tribe's program and will 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 approval of the Tribal MSWLF permit program 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, 6949a.

    Dated: March 31, 1994.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 94-8358 Filed 4-6-94; 8:45 am]
BILLING CODE 6560-50-P