[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]
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