[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11085]


[[Page Unknown]]

[Federal Register: May 11, 1994]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4883-3]

 

Campo Band of Mission Indians; Tentative Adequacy Determination 
of Tribal Municipal Solid Waste Permit Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of tentative determination on application of the Campo 
Band of Mission Indians for full program adequacy determination, public 
hearing and public comment period.

-----------------------------------------------------------------------

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.
    Under separate authority of the Clean Air Act, EPA is reviewing an 
application for a non-attainment area permit to construct a proposed 
MSWLF on the Campo Reservation. There will be a separate public comment 
period and decision on that application.
    The Campo Band of Mission Indians (``Campo Band'') applied for a 
determination of adequacy under section 4005 of RCRA. EPA reviewed the 
Campo Band's MSWLF application and has made a tentative determination 
of adequacy for those portions of the Campo Band's MSWLF permit program 
that are adequate to assure compliance with the revised MSWLF Criteria. 
These portions are described later in this notice. The Campo Band has 
drafted revisions to the remainder of its permit program to assure 
complete compliance with the revised MSWLF Criteria and gain full 
approval. EPA has determined that the Campo Band's revised requirements 
and emergency regulations, if fully adopted and affirmed before EPA 
makes a final determination, would be adequate to ensure compliance 
with the Federal Criteria.
    Although RCRA does not require EPA to hold a public hearing on any 
determination to approve a Tribe's MSWLF program, the Region has 
scheduled a public hearing on this tentative determination. Details 
appear below in the DATES section. The Campo Band's application for 
program adequacy determination is available for public review and 
comment.

DATES: All comments on the Campo Band's application for a determination 
of adequacy must be received by the close of business on July 14, 1994. 
A public hearing is scheduled for 7 p.m. to 9 p.m. June 30, 1994 in 
Alpine, California. An open house is scheduled for 3 p.m. to 6 p.m. on 
June 30, 1994 in Alpine to give the public an opportunity to discuss 
the tentative approval before the hearing. At the hearing, 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 30, 1994. The 
hearing may adjourn earlier than 9 p.m. if all of the speakers deliver 
their comments before that hour. Representatives of the Campo Band of 
Mission Indians will be present at the open house and the public 
hearing held by EPA on this subject.

ADDRESSES: Written comments should be sent to Ms. Christiane Camp, Mail 
Code H-3-1, US EPA Region 9, 75 Hawthorne Street, San Francisco, 
California 94105.
    The public hearing will be held at the Alpine Elementary School 
Auditorium, 1850 Alpine Blvd., Alpine, California 91901. The open house 
will be held at the Alpine Elementary School Auditorium. Copies of the 
Campo Band's application for adequacy determination are available at 
the following addresses for inspection and copying: Campo Environmental 
Protection Agency, Campo Tribal Hall, BIA Route 10, Highway 94, Campo, 
California, 91906, telephone (619) 478-9369, from 9 a.m. to 4 p.m. 
Mondays through Fridays; Campo Public Library, 31466 Highway 94, Campo, 
California, 91906, telephone (619) 478-5945, from 9 a.m. to 1 p.m. and 
1:30 to 4 Wednesdays, and 9 a.m. to 1 p.m. Fridays and Saturdays; US 
EPA Region 9 Library, 75 Hawthorne Street, 13th Floor, San Francisco, 
California, 94105, telephone (415) 744-1510, from 9 a.m. to 5 p.m. 
Mondays through Fridays.

FOR FURTHER INFORMATION CONTACT: US EPA Region 9, 75 Hawthorne Street, 
San Francisco, California 94105, Attn: Ms. Christiane Camp, Mail Code 
H-3-1, telephone (415) 744-2097.

SUPPLEMENTARY INFORMATION:

A. Background

1. Solid Waste Permit Program Criteria
    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), 42 U.S.C. 6941-6949(a), 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 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 MSWLF facilities.
    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)(1) 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 a Tribe 
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. These requests reflect the 
criteria used in other environmental statutes to assess whether Tribes 
may apply for program approval. 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 material necessary to support its 
application for MSWLF permit program approval.
    EPA Regions will determine whether a Tribe has submitted an 
adequate program based on the interpretation outlined above. 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. EPA plans to provide more specific criteria for this 
evaluation when it proposes the State/Tribal Implementation Rule.
2. Tribal Programs
    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, Comprehensive Environmental Response 
Compensation and Liability Act, 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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), 
potentially resulting in the Federal government assuming 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. 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.
    EPA, in accordance with its Indian Policy, has worked to ensure 
that Congress revises other environmental statutes (e.g., the Clean 
Water Act), 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-
130001 (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
---------------------------------------------------------------------------

    \2\ Congress ratified EPA's regulation in 1977 by explicitly 
authorizing Tribes to make PSD redesignations; the 1990 Amendments 
to the Clean Air Act authorize EPA to allow Tribes to apply for 
approval to implement any programs EPA deems appropriate.
---------------------------------------------------------------------------

    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 a tribal 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 has emphasized since Nance that Indian Tribes 
may regulate activities on land belonging to the Tribe or held by the 
United States in trust for the Tribe. Montana v. United States, 450 
U.S. 544, 557 (1981). All land within the Campo Reservation is tribal 
trust land.
    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 ``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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 on fee lands 
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. 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.
    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.

B. Campo Band of Mission Indians

    On February 15, 1994, the Campo Band submitted an application for 
adequacy determination. EPA reviewed the Campo Band's application and 
tentatively determined that the following portions of the Tribe's 
Subtitle D program will ensure compliance with the revised Federal 
Criteria:
    1. General criteria governing scope and applicability, definitions, 
and consideration of other federal laws (40 CFR 258.1, 258.2, 258.3);
    2. Location restrictions for airport safety, floodplains, wetlands, 
fault areas, seismic impact zones, unstable areas, and closure of 
existing units (40 CFR 258.10, 258.11, 258.12, 258.13, 258.14, 258.15, 
and 258.16);
    3. Operating criteria for exclusion of hazardous waste, cover 
material requirements, disease vector control, explosive gases control, 
air criteria, access requirements, run-on/run-off control systems, 
surface water requirements, liquids restrictions, and recordkeeping 
requirements (40 CFR 258.20, 258.21, 258.22, 258.23, 258.24, 258.25, 
258.26, 258.27, 258.28, and 258.29);
    4. Design criteria (40 CFR 258.40);
    5. Groundwater monitoring and corrective action criteria governing 
applicability (40 CFR 258.50);
    6. Closure and post-closure care requirements (40 CFR 258.60 and 
258.61);
    7. Financial assurance criteria governing applicability and 
effective date, and allowable mechanisms (40 CFR 258.70 and 258.74).
    Not all States/Tribes will have existing permit programs through 
which they can ensure compliance with all provisions of the revised 
Federal Criteria. Were EPA to restrict a State/Tribe from submitting 
its application until it could ensure compliance with the entirety of 
40 CFR part 258, many States/Tribes would need to postpone obtaining 
approval of their permit programs for a significant amount of time. 
This delay in determining the adequacy of the State/Tribal permit 
program while the State/Tribe revises its statutes, codes or 
regulations could impose a substantial burden on owners and operators 
of landfills because the State/Tribes would be unable to exercise the 
flexibility available to States/Tribes with permit programs which have 
been approved as adequate.
    The Campo Band needs to revise aspects of its permit program to 
ensure compliance with the following provisions of the Federal 
Criteria:
    1. Groundwater monitoring and corrective action criteria for 
groundwater monitoring systems, sampling and analysis requirements, 
detection monitoring program, assessment monitoring program, and 
corrective action implementation (40 CFR 258.51, 258.53, 258.54, 
258.55, and 258.58). Although existing CEPA regulations ensure 
compliance with the federal assessment of corrective measures and 
selection of remedy requirements (40 CFR 258.56 and 258.57) in and of 
themselves, it would be impossible to separate compliance with these 
portions of CEPA's regulations from the rest of CEPA's groundwater 
monitoring program. Therefore, if CEPA does not fully adopt draft 
regulatory changes to the groundwater monitoring systems, sampling and 
analysis requirements, detection monitoring program, assessment 
monitoring program, and corrective action implementation requirements, 
EPA cannot approve CEPA for the assessment of corrective measures and 
selection of remedy portions of its program.
    2. Financial assurance criteria for closure, post-closure and 
corrective action (40 CFR 258.71, 258.72, and 258.73).
    The Campo Band submitted an amendment to its application for 
program adequacy determination on April 18, 1994. The Campo Band's 
amendment included draft revised requirements for those parts of the 
Campo Band's existing program that are not adequate to ensure 
compliance with the federal criteria. EPA Region 9 reviewed the Campo 
Band's amendment to its application and determined that these draft 
regulatory requirements would be adequate to ensure compliance with the 
Federal Criteria.
    If the draft regulatory requirements submitted to EPA on April 18, 
1994 are fully adopted before EPA makes a final determination, then EPA 
proposes to fully approve the Campo Band's MSWLF program. If all the 
necessary draft regulatory requirements are not adopted with the 
relevant effective dates or are adopted with altered language that 
would not clearly assure compliance with the Federal Criteria, then EPA 
proposes to partially approve the Campo Band's program. Partial 
approval would only be for those portions of the Campo Band program 
that assure compliance with the Federal Criteria.
    In addition, before EPA grants partial or full program approval, 
the Campo Band must reaffirm the February 13, 1994 promulgation of the 
emergency regulations submitted with the Campo Band's February 15, 1994 
final application. Although the Campo Band's emergency regulations are 
currently in effect, they remain in effect only 180 days after February 
13, 1994 unless the original promulgation is affirmed. The emergency 
regulations must be affirmed without altered language that would not 
clearly assure compliance with the Federal Criteria in order for EPA to 
approve those portions of the Campo Band program governed by the 
emergency regulations.
    The Campo Band has demonstrated that the Campo Band of Mission 
Indians is a Federally recognized Tribe. See 53 FR 52830 (December 29, 
1988). The Constitution (the ``Constitution'') of the Campo Band of 
Mission Indians establishes a General Council that serves as the Campo 
Band's governing body and enumerates the Council's powers and 
responsibilities. Among the enumerated powers, the Constitution 
authorizes the General Council to establish subordinate entities for 
the Band and, by appropriate ordinances and resolutions, to delegate to 
such subordinate entities any of the powers and duties of the General 
Council. Pursuant to this power under the Constitution and by 
Resolution No. 88-005, the General Council established the Campo 
Environmental Protection Agency (CEPA) for the purpose of protecting 
public health and safety and the environment. CEPA is charged with the 
administration and enforcement of the solid waste management permitting 
and regulatory compliance programs.
    All land within the Campo Reservation is tribal trust land. The 
Campo Band has established that the Campo Band of Mission Indians has 
adequate jurisdiction over the land of the Campo Reservation based on 
general principles of Tribal sovereignty, the Band's status as a 
``federally recognized Indian Tribe,'' the Tribal Constitution, a map 
and narrative description which established the boundaries of the 
Reservation and copies of Tribal codes and regulations.
    In making today's tentative determination that the Campo Band'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. In its application, the Campo Band 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.
    Region 9 will hold a public hearing on this determination from 7 
p.m. to 9 p.m. June 30, 1994 at the Alpine Elementary School 
Auditorium, 1850 Alpine Blvd., Alpine, California, 91901. An open house 
is scheduled for 3 p.m. to 6 p.m. on June 30, 1994 at the Alpine 
Elementary School Auditorium to give the public an opportunity to 
discuss the tentative approval before the hearing. The public may 
submit written comments on EPA's tentative determination until the 
close of the public comment period July 14, 1994. Copies of the Campo 
Band's application and supporting documents are available for 
inspection and copying at the locations indicated in the ``Addresses'' 
section of this notice.
    EPA will consider all public comments on its tentative 
determination received during the public comment period and public 
hearing. Issues raised by those comments may be the basis for a 
determination of adequacy or inadequacy for the Campo Band's program. 
EPA will make a final determination on whether or not to approve the 
Campo Band'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(c) of the Solid Waste Disposal Act as amended; 42 U.S.C. 6912, 
6945, 6949a(c).

    Dated: April 29, 1994.
Felicia Marcus,
Regional Administrator.
[FR Doc. 94-11085 Filed 5-10-94; 8:45 am]
BILLING CODE 6560-50-P