[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Notices]
[Pages 21191-21210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10508]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5198-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination of Full Program Adequacy for the 
Campo Band of Mission Indians Application.

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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 of 1984, requires states to develop and implement permit 
programs to ensure that municipal solid waste landfills which may 
receive hazardous household waste or small quantity generator waste 
will comply with the revised Federal Municipal Solid Waste Landfill 
Criteria (40 CFR part 258 or Federal Criteria). RCRA section 
4005(c)(1)(C) requires the Environmental Protection Agency (EPA) to 
determine whether states have adequate ``permit'' programs for 
municipal solid waste landfills (MSWLFs). EPA believes that adequate 
authority exists under RCRA to allow tribes to seek an adequacy 
determination for purposes of sections 4005 and 4010.
    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 application and proposed a determination that the Campo 
Band's MSWLF permit program is adequate to ensure compliance with the 
revised MSWLF Criteria. After consideration of all comments received, 
EPA is today issuing a final determination that the Campo Band's 
program is adequate.

EFFECTIVE DATE: The determination of adequacy for the Campo Band shall 
be effective on May 1, 1995.

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

SUPPLEMENTARY INFORMATION:

I. 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, requires states (and, as discussed 
below, allows Indian tribes) to develop permitting programs to ensure 
that MSWLFs comply with the Federal Criteria under 40 CFR part 258. 
Section 4005 of RCRA also requires that EPA determine the adequacy of 
state MSWLF permit programs to ensure that facilities comply with the 
revised Federal Criteria. 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. As explained below, the Agency intends 
to approve adequate state/tribal MSWLF permit programs as applications 
are submitted. 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 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 permit programs is consistent with the EPA Policy for the 
Administration of Environmental Programs on Indian Reservations 
(November 8, 1984) (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 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 
directly addressed the precise question at issue or otherwise 
explicitly stated its intent in the statute or in legislative history, 
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 in Indian country, absent an explicit Congressional 
authorization. California v. Cabazon Band of Mission Indians, 480 U.S. 
202 (1987). Yet, under the current statutory scheme, EPA generally is 
precluded from enforcing the federal Criteria as well. Furthermore, 
Congress has not yet created an explicit role for tribes to implement 
the RCRA 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).
    To have its permit program deemed adequate by EPA, a tribe must 
have adequate authority over the regulated activities. Indian 
reservations may [[Page 21192]] 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. For further explanation of this issue, see EPA's tentative 
determination of the adequacy of the Campo Band's solid waste program, 
59 FR 24422, 24425-24427 (May 11, 1994). As explained in the tentative 
determination, all land within the Campo Reservation is tribal trust 
land; there is no fee land owned by non-Indians on the Campo 
Reservation. As further explained in the tentative determination, the 
Campo Band has established that it has adequate jurisdiction over the 
Campo Reservation based on general principles of tribal sovereignty, 
the Campo 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 Tribal codes and regulations.
    By today's action, EPA is continuing to follow its policy of 
approving state/tribal permit programs prior to the promulgation of 
STIR. As explained in the tentative determination, as well as in 
previous state program approvals, 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 Federal 
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 program.
    EPA further requests 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 
MSWLFs on the reservation. In addition, EPA requests tribes seeking 
program approval to demonstrate that they: (1) Are federally 
recognized; (2) have a government exercising substantial duties and 
powers; and (3) are 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 obtaining a grant or the approval to 
operate another EPA program, it need not do so again. EPA also requests 
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 to 
designate 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 under another EPA 
program, EPA requests the tribe to provide only those additional 
materials necessary to support its application for permit program 
approval. These requests incorporate the criteria used in other 
environmental statutes to assess whether tribes may receive grants or 
program approval.

II. Campo Band of Mission Indians

    On February 15, 1994, the Campo Band submitted an application for 
adequacy determination. On May 11, 1994, EPA published a tentative 
determination of adequacy for the Campo Band's program. Further 
background on the tentative determination of adequacy appears at 59 FR 
24422 (May 11, 1994).
    Along with the tentative determination, EPA announced the 
availability of the application for public comment and the date of a 
public hearing on the application. On June 30, 1994, at 7 p.m. EPA held 
a public hearing. Numerous comments were made at the hearing. EPA also 
received numerous written comments during the public comment period, 
which EPA extended until August 1, 1994. 59 FR 34812 (July 7, 1994).

III. Responses to Comments

    The following are EPA's responses to the written and oral comments 
received during the public comment period and at the public hearing.

A. EPA's Authority to Approve Tribal Programs

    Several commenters asserted that EPA does not have the authority to 
approve tribal solid waste programs under RCRA. These comments raised a 
number of legal and policy issues which are discussed below.
1. Summary of the Agency's Position
    The Campo Band applied for a determination of adequacy under 
Subtitle D of RCRA, as amended (42 U.S.C. 6941-6949a). Section 
4005(c)(1)(B) of RCRA requires states to develop and implement permit 
programs to ensure that MSWLFs which may receive hazardous household 
waste or conditionally exempt small quantity generator waste will 
comply with the revised Federal Criteria for MSWLFs, 40 CFR part 258. 
Section 4005(c)(1)(C) requires EPA to determine whether states have 
adequate ``permit'' programs.
    EPA believes that RCRA allows tribes to seek an adequacy 
determination for purposes of sections 4005 and 4010 in the same manner 
as the states.
    EPA's interpretation of RCRA is governed by the principles of 
Chevron, supra. Where Congress has not spoken directly to the precise 
question at issue or otherwise explicitly stated its intent in the 
statute or in legislative history, the administering Agency's 
interpretation of the statute is entitled to deference if it is based 
on a permissible construction of the statute. Chevron, 467 U.S. at 843. 
In step one of the Chevron test, a court looks first to whether 
Congress has specifically addressed the relevant issue.1 If not, a 
court proceeds to step two to decide whether the interpretation offered 
by the administering agency is reasonable in light of the goals and 
purposes of the statute. See, e.g., American Mining Congress v. EPA, 
965 F.2d 759 (9th Cir. 1992).

    \1\.One commenter argued that EPA has misread the Chevron test 
to allow EPA to fill a statutory gap when Congress has adopted a 
provision but failed to state its intent in doing so. See 59 FR 
24422, 24423 (May 11, 1994). According to this comment, Chevron 
applies only when Congress has failed to adopt a specific provision. 
EPA notes that the exact language is whether ``Congress has not 
directly addressed the precise question at issue.'' 467 U.S. at 843. 
This may occur either where Congress has failed to adopt a specific 
provision or where the provision adopted is not clear as to the 
specific issue. In the situation of Indian tribes and RCRA Subtitle 
D, both problems occur, as discussed below.
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    The Supreme Court stated in Chevron that the principle of deference 
to administrative interpretations of a statute ``has been consistently 
followed by this Court whenever a decision as to the meaning or reach 
of a statute has involved reconciling conflicting policies, and a full 
understanding of the force of the statutory policy in the given 
situation has depended upon more than ordinary knowledge respecting the 
matters subjected to agency regulations.'' 467 U.S. at 844. In 
interpreting the meaning and reach of Subtitle D of RCRA, the Agency 
has undertaken to reconcile RCRA with broad federal mandates, analogous 
environmental statutes, EPA's longstanding Indian Policy and relevant 
principles of federal Indian law.
    EPA's Indian Policy, formally adopted in 1984 and reaffirmed by 
each EPA Administrator since, recognizes tribes as the primary 
sovereign entities for [[Page 21193]] 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. Providing tribes with the opportunity to implement permit 
programs represents another facet of the Agency's continuing commitment 
to the implementation of this long-standing policy.
    In the case of other environmental statutes which initially did not 
have explicit provisions concerning treatment of Indian tribes in the 
same manner as states, such as 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. Congress added the provisions of the Clean Water Act 
that specifically allow tribes to be treated in the same manner as 
states in 1987. Clean Water Act section 518, 33 U.S.C. 1377.
    However, 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. EPA has 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 (July 26, 1990). EPA also filled a statutory gap in the Clean 
Air Act even before development of its Indian Policy. In 1974, EPA 
authorized Indian tribes to redesignate the level of air quality 
applicable to Indian country under the Prevention of Significant 
Deterioration (PSD) program in the same manner that states could 
redesignate for other lands. This decision was upheld in Nance v. EPA, 
645 F.2d 701 (9th Cir. 1981). EPA believes the current situation to be 
analogous to these situations.
    One commenter asserted that Nance was the only authority cited by 
EPA in support of the Agency's position that it has authority to 
approve tribal programs. This commenter listed several facts 
distinguishing the circumstances in the Nance case from the present 
determination. However, as explained more fully throughout these 
responses to comments, Nance is not EPA's sole support for today's 
action. EPA's interpretation is based on a number of authorities, 
including several cases--Chevron, supra, Cabazon, supra, State of 
Washington, Department of Ecology v. U.S. EPA, 752 F.2d 1465 (9th Cir. 
1985) (discussed below), and others-- as well as EPA's Indian Policy. 
Furthermore, EPA reiterates the fact that the Nance court held that 
under a federal statute silent as to jurisdiction in Indian country, 
EPA correctly allowed the Tribe, rather than the State, to ``exercise 
control...over the entrance of pollutants onto the reservation''. That 
is precisely what EPA's action today will do.
2. Applicability of Chevron
    EPA received several general comments which suggest that the 
Chevron test does not apply to the interpretation of RCRA at issue 
here. The Agency disagrees with these comments.
    Several facts create a gap in the implementation of RCRA. First, 
Congress did not directly speak to the issue of how a MSWLF regulatory 
program should be implemented in Indian country. In Washington, the 
Ninth Circuit upheld EPA's decision to exclude Indian country from the 
approved State hazardous waste program, stating that ``RCRA does not 
directly address the problem of how to implement a hazardous waste 
management program on Indian reservations.'' 752 F.2d at 1469. Second, 
under the current statutory scheme as implemented, EPA is generally 
precluded from enforcing federal requirements on MSWLFs. Section 
4005(c) of RCRA only allows EPA to enforce the 40 CFR part 258 Criteria 
after a finding of inadequacy of the state permit program, indicating 
Congress' preference for non-federal oversight of MSWLFs. Third, it is 
a well-settled principle of federal Indian law that states are 
precluded from exercising civil regulatory authority in Indian country 
unless Congress has expressly authorized them to do so. Cabazon, supra; 
Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 
1975), cert. denied 97 S.Ct. 731 (1977); Washington, 752 F.2d at 1469-
1470. These facts leave open the question of how MSWLFs will be 
regulated in Indian country.
    A gap in the administrative scheme of a statute indicates that 
Congress has delegated implicitly to the administrative Agency the 
authority to interpret the statute in a way that fills the gap. 
Washington, 752 F.2d at 1465. This interpretation is to be upheld if it 
is based on a permissible construction of the statute and reasonably 
promotes the goals and purposes of the statute. Chevron, 467 U.S. at 
843. The Agency's determination that RCRA Subtitle D allows Indian 
tribes to develop permitting programs to ensure that MSWLFs comply with 
the Federal Criteria under 40 CFR part 258 is not only a permissible 
interpretation of RCRA, but is the most reasonable interpretation of 
RCRA given the strong legal and policy considerations in favor of 
promoting tribal sovereignty, and Congress' preference for non-federal 
oversight of MSWLFs.
3. Existence of a ``Gap'' in MSWLF Regulation
    EPA also received comments that Chevron should not apply because 
there is no gap in the regulatory program for EPA to fill. According to 
these comments, the case of Coalition for Clean Air v. EPA, 971 F.2d 
219 (9th Cir. 1992) should govern this issue. Coalition involved 
interpreting a provision of the Clean Air Act. Under the Clean Air Act, 
states are to submit proposals for State Implementation Plans (SIPs) 
allowing for attainment of National Ambient Air Quality Standards 
(NAAQS) by the statutory deadline. If EPA disapproves the state's 
proposed SIP, EPA must establish a Federal Implementation Plan (FIP) to 
take the place of the SIP. As noted in Coalition, EPA had disapproved 
California's proposed SIP for the South Coast and was in the process of 
finalizing a FIP for the South Coast when Congress passed the Clean Air 
Act Amendments of 1990. 971 F.2d at 222-223. The Amendments changed the 
criteria and timetables for NAAQS attainment. EPA argued that the 
changes relieved EPA of the obligation to promulgate a FIP and made it 
incumbent upon California to try again and submit a new SIP proposal. 
Id.
    In Coalition, the Ninth Circuit declined to defer to EPA's 
interpretation for three reasons. First, the court found that the plain 
language of the Clean Air Act expressed Congress' intent to require EPA 
to promulgate a FIP. The court also found that legislative history did 
not support EPA's interpretation. Finally, the court held that EPA's 
interpretation was not entitled to deference because EPA had previously 
argued the opposite to Congress--that unless the statute were amended, 
EPA would be obligated to promulgate FIPs. The court pointed out that 
the change in EPA's interpretation did not reflect accumulated 
experience or respond to changing circumstances, nor was the change 
justified with reasoned analysis. Rather, the court found that EPA was 
merely asking the court to do what Congress would not.
    The factors that lead the Ninth Circuit to reject EPA's 
interpretation of the Clean Air Act in Coalition are not present here. 
As discussed in more detail below, the plain language of RCRA does not 
express Congress' intent [[Page 21194]] with respect to regulation of 
solid waste in Indian country. As discussed below, the legislative 
history supports EPA's position that Congress did not intend to 
abrogate tribal sovereignty and give states jurisdiction over solid 
waste management in Indian country. Finally, EPA's interpretation is 
consistent with the Agency's long-standing Indian Policy and previous 
statements about the regulation of solid waste.
    Finally, the commenter argued that Chevron deference is less 
appropriate when an Agency adopts a statutory interpretation that is 
inconsistent with past policy and the new interpretation is not 
triggered by a change in the law or a problem arising from the previous 
interpretation, or accompanied by a reasoned analysis of the need for a 
change. The comment cites the preamble to EPA's 1979 guidelines for 
development and implementation of state solid waste management plans, 
which provides that ``states with Indian Lands should therefore address 
solid waste management on these lands in accord with treaties and State 
policy.'' 44 FR 45078-79 (July 31, 1979). The comment also cites the 
regulation itself which provides that ``the State plan shall provide 
for coordination, where practicable, with solid waste management plans 
in neighboring States and with plans for Indian Reservations in the 
State.'' 40 CFR 256.50(m) (1979). EPA disagrees that these provisions 
render deference to the Agency's interpretation of RCRA less 
appropriate. EPA has not changed its position. The provisions cited do 
not order states to regulate Indian country, but instead recognize that 
states are generally precluded from exercising regulatory authority 
over Indian country, and support EPA's long-standing policy that tribes 
are the appropriate non federal sovereign to regulate the environment 
in Indian country. The cited provisions suggest that EPA recognized 
that solid waste management plans in Indian country are separate from 
the plans in effect for the surrounding state, just as are plans in 
other states. EPA explained in the preamble that it added 
Sec. 256.50(m) ``to encourage coordination with tribal solid waste 
management programs.'' 44 FR 45079 (July 31, 1979).
    Under the citizen suit provisions of RCRA citizens can enforce the 
40 CFR part 258 regulations. According to some of the comments, this 
means there would be no gap in enforcement of the MSWLF requirements in 
Indian country. While EPA acknowledges that the requirements of 40 CFR 
part 258 would be in effect in Indian country even if tribes could not 
obtain approval of their MSWLF permit programs, this would not achieve 
the same programmatic results. The ability to file a citizen suit under 
section 7002 of RCRA when a MSWLF fails to operate properly is not 
comparable to having a primary and complete system in place for solid 
waste management. Moreover, citizens have the right to sue regardless 
of the status of a state or tribal program. The existence of citizen 
suit enforcement of the Federal criteria is therefore irrelevant to the 
issue of how to fill the gap that exists in the permitting of MSWLFs in 
Indian country. Congress has not provided a mechanism that would be 
equivalent to recognizing tribal authority directly.
    One commenter asserted that, through the citizen suit provision 
(which would subject any owner or operator of an MSWLF--including 
tribes and non-Indian landfill owners or operators in Indian country--
to enforcement) Congress abrogated tribal sovereignty. The commenter 
implies that Congress intended for states to regulate solid waste 
management in Indian country. EPA disagrees. The fact that tribes or 
non-Indian operators in Indian country are subject to RCRA citizen 
suits does not imply Congressional intent to deprive tribes of their 
authority to regulate the environment within their jurisdiction. The 
same citizen suit provision of RCRA also subjects states and the 
federal government to citizen suits; the commenter's argument would 
imply Congressional intent to deprive states and the federal government 
of their authority to regulate as well. The purpose of the citizen suit 
provision is to provide a back-up system when the authorized government 
regulatory agency fails to enforce the relevant environmental 
standards.
    One commenter also argued that EPA could instead fill the gap in 
permitting authority by promulgating reservation-specific MSWLF 
standards for interested tribes in place of the nationwide 40 CFR part 
258 requirements. EPA acknowledges this may be a potential alternative. 
But, consistent with EPA's Indian policy and its emphasis on tribal 
self-government, the Agency believes that tribes should be given the 
opportunity to operate the program directly where the statute allows 
for such authority. The comment merely offers an alternative method of 
filling the gap, implicitly recognizing that a gap exists to be filled 
under Chevron.
    One commenter argued that EPA may not fill the statutory gap in the 
treatment of Indian tribes under RCRA unless and until it attempts to 
remove existing statutory and regulatory ``barriers'' to treating 
tribes in the same manner as states. EPA disagrees that it must take 
other actions before adopting today's interpretation. Congress has not 
amended RCRA since 1984. EPA has recommended for several years that an 
Indian tribes provision be added to the statute, and draft provisions 
have appeared in bills introduced in the 101st and 102nd Congresses. A 
comprehensive RCRA reauthorization bill was not introduced in the 103rd 
Congress. So EPA has endeavored to bring this issue before Congress, 
but Congress has not amended the statute in any form. Nonetheless, EPA 
believes that no statutory or regulatory barriers exist that would 
prevent treatment of tribes in the same manner as states under RCRA 
Subtitle D. Chevron allows EPA to specify a role under RCRA Subtitle D 
for tribes to implement MSWLF permit programs in Indian country.
4. RCRA Definition of ``Municipality''
    One commenter argued that states have authority over Indian tribes 
for the purposes of RCRA because tribes are included in the definition 
of ``municipality'' rather than in the definition of ``state''. This 
commenter asserted that the Agency goes beyond ``filling gaps'' in its 
interpretation of RCRA, and ``creates a program from whole cloth'' that 
``directly conflicts with Congress' law.'' According to the comment, 
Congress has directly addressed the precise issue of how tribal solid 
waste programs are to interrelate with state and federal programs by 
including Indian tribes in the definition of ``municipality'', rather 
than ``state''. ``State'' is defined to mean:

    (A)ny of the several States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
Samoa, and the Commonwealth of the Northern Mariana Islands.

RCRA section 1004(31).
    The only mention of tribes in the statute is in section 1004(13), a 
part of the ``definitions'' section of 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 of solid waste management, or an 
Indian tribe or authorized tribal organization or Alaska Native 
village or organization(.)

    RCRA does not explicitly define a role for tribes under sections 
4005 and 4010 and therefore reflects an ambiguity in congressional 
intent. The Agency believes that the commenter has misconstrued the 
significance of the definitions. ``Municipalities'' are 
[[Page 21195]] mentioned in sections 4003(c)(1)(C), 4008(a)(2), 
4008(a)(3)(C), 4008(g)(1) and 4009(a) of RCRA, all of which reference 
the availability of federal funds and technical assistance for solid 
waste planning and management activities by municipalities. It is 
therefore the Agency's interpretation of these provisions that Congress 
intended to provide that tribes could receive federal funding and 
assistance for solid waste planning and management activities when 
available in the same manner as municipal governments, but that 
Congress did not otherwise intend to limit the scope of tribal 
regulatory authority over solid waste management in Indian country. In 
other words, absent an indication from Congress to the contrary, EPA 
believes that inclusion of Indian tribes in the definition of 
``municipality'' was merely a definitional expedient used to avoid 
having to include the phrase ``or an Indian tribe or authorized tribal 
organization or Alaska Native village or organization'' wherever the 
term ``municipality'' appeared, not to change the sovereign status of 
tribes for RCRA purposes.
    Another comment cites Sutherland on Statutory Construction 
Sec. 46.01 (5th ed. 1992) for the principle that ``unless the 
defendants can demonstrate that the natural and customary import of the 
statute's language is either repugnant to the general purview of the 
act or for some other compelling reason should be disregarded, the 
court must give effect to the statute's plain meaning.'' First, as 
discussed above, EPA believes that the language of RCRA contains no 
``plain meaning'' with respect to jurisdiction over solid waste 
management in Indian country. Second, EPA believes that federal Indian 
law and EPA's Indian Policy provide a sufficiently ``compelling 
reason'' to overcome the inference that states have jurisdiction over 
solid waste management in Indian country that the commenter would draw 
from the statutory definition of ``State'' and ``municipality''.
    Many references are made to ``local governments'' or ``local 
authorities'' in RCRA. See, e.g., sections 4006(a); 4006(b); 
4006(c)(2). One commenter argued that the term ``municipality'' should 
be substituted for these references, and that tribes should be treated 
the same as municipalities for all purposes of RCRA Subtitle D. This 
would result in Indian tribes being brought under state control for the 
purposes of section 4006, which specifies procedures for the 
development and implementation of state solid waste plans. EPA 
believes, however, that these terms were not intended to include Indian 
tribes. The term ``municipality'' could have easily been used instead 
of these references. By contrast, the term ``municipality,'' which by 
definition includes Indian tribes, is used with reference to the 
availability of federal funds and technical assistance for solid waste 
planning and management activities. Thus, EPA believes that Congress 
did not intend to refer to Indian tribes and local governments 
interchangeably nor to affect the sovereign status of tribes in such an 
indirect way in RCRA.
    It is a reasonable interpretation of RCRA that the use of the 
explicitly defined term ``municipality'' was limited to those areas 
that Congress wanted to apply to both local governments and Indian 
tribes, while the terms ``local governments'' or ``local authorities'' 
were used for those provisions that were to apply to local governments 
and not to Indian tribes. As discussed above, however, it is a 
reasonable interpretation of RCRA that Congress did not intend, simply 
by defining ``municipality'' to include tribes, to abrogate Indian 
sovereignty and subject all solid waste management activities in Indian 
country to state regulatory authority.
    An examination of the legislative history of RCRA further supports 
EPA's position that Congress did not directly address the management of 
solid waste in Indian country. The first Solid Waste Disposal Act did 
not define ``municipality.'' Solid Waste Disposal Act (SWDA), Pub. L. 
No. 89-272, Title III Sec. 203, 79 Stat. 983, 990-991 (1965). The 
definition of municipality was added by the Resource Recovery Act of 
1970, and included ``Indian tribe''. Pub. L. No. 91-512, Title I Sec. 
102, 84 Stat. 1227, 1228 (1970). Congress then enacted the Resource 
Conservation and Recovery Act of 1976, which contains the definition of 
``municipality'' currently in the statute, adding ``or authorized 
tribal organization or Alaska Native village or organization''. Pub. L. 
No. 94-580, Title II, Sec. 1004, 90 Stat. 2795, 2800 (1976). There is 
no legislative history explaining why Congress included Indian tribes 
and other Indian organizations in the definition of ``municipality''. 
See H.R. Rep. No. 1155, 91st Cong., 2d Sess., reprinted in 1970 
U.S.C.C.A.N. 4552; S. Rep. No. 1034, 91st Cong., 2d Sess. 27, (1970); 
H.R. Conf. Rep. No. 1579, 91st Cong., 2d Sess., reprinted in 1970 
U.S.C.C.A.N. 4559; H.R. Rep. No. 1491, 94th Cong., 2d Sess., reprinted 
in 1976 U.S.C.C.A.N. 6238; S. Rep. No. 869, 94th Cong., 2d Sess. 1 
(1976); S. Rep. No. 988, 94th Cong., 2d Sess. 1 (1976).
    There is no further mention of the definitions or of the role of 
tribes in the legislative history of RCRA. There is also no indication 
in the legislative history that Congress ever attempted to conduct an 
examination of the social, legal and political ramifications that the 
submission of tribes to state regulatory authority in the area of 
hazardous waste management would occasion. The fact that Congress did 
not conduct such an examination or otherwise directly address the 
precise issue in the legislative history supports EPA's contention that 
Congress did not in fact have a specific intent with regard to 
implementation of RCRA in Indian country.
    As mentioned above, principles of federal Indian law also support 
the Agency's interpretation of RCRA under Chevron. Federal Indian law 
mandates that a statute be construed liberally in favor of Indians. See 
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766-767 (1985), 
and Washington, 752 F.2d at 1469-1470. Liberally construed in favor of 
the states, the inclusion of Indian tribes in the definition of 
``municipality'' might constitute an implicit argument for the 
limitation of Indian sovereignty, but the Agency is obligated to read 
RCRA in favor of tribal authority and to uphold the principles of 
tribal sovereignty unless Congressional directives to the contrary are 
clearly expressed.
    The commenter seeks to read into an ambiguous statute Congressional 
intent to deny tribes a significant regulatory authority. This is 
inconsistent with federal Indian law, as discussed above. EPA cannot 
assume that Congress, by including Indian tribes in the definition of 
``municipality'' in RCRA section 1004(13), intended to submit the 
sovereign authority of the various Indian tribes throughout the nation 
to that of the various states in which they reside for the purposes of 
RCRA. Neither the statutory text nor the legislative history of RCRA 
support this reading of the statute.
    One commenter supported the conclusion that, as a general rule, 
Indian tribes that are sovereign nations are not subject to state solid 
waste management requirements. This commenter stated that courts will 
permit state requirements to extend to sovereign tribal lands only if 
the state interests clearly outweigh tribal and federal interests, and 
that the U.S. Supreme Court has rarely found such interests to exist. 
This is consistent with EPA's analysis of federal Indian law, discussed 
above.
    Another commenter argued that EPA's proposal to treat Indian tribes 
in the [[Page 21196]] same manner as states for purposes of section 
4005 is inconsistent with its decision not to waive MSWLF financial 
assurance requirements for Indian tribes that operate landfills, as EPA 
had waived for state-operated landfills. (See 56 FR at 51107-08 (Oct. 
9, 1991); 40 CFR 258.70(a)). In this commenter's view, EPA's decision 
suggests that EPA considers tribes to be equivalent to municipalities 
for RCRA Subtitle D purposes. EPA disagrees. As is explained in detail 
in the preamble to the Federal Criteria rule, EPA proposed, but 
ultimately decided against, exempting Indian tribes from the financial 
assurance requirements imposed on local governments. EPA decided that 
Indian tribes, ``for reasons similar to those'' upon which the Agency 
based its decision not to exempt municipalities from the financial 
assurance requirements, ``do not have the requisite financial strength 
to ensure funding of their closure, post-closure and corrective action 
obligations''. 56 FR at 51108. EPA did not say anything to suggest a 
position that Indian tribes were subject to state regulatory control as 
are local governments or municipalities. Nor did EPA suggest that 
tribes lack the sovereign regulatory authority over MSWLF activities in 
Indian country necessary to administer an EPA-approved landfill permit 
program. Therefore, there is no inconsistency between the Agency's 
position in that rule and in today's notice.2

    \2\.The commenter also asserted that EPA used the terms ``local 
government'' and ``municipality'' interchangeably in the proposed 
and final landfill criteria rule, and that EPA implicitly asserted 
that ``Indian tribes'' should be considered local governments for 
MSWLF purposes. A close examination of the language makes clear that 
EPA thought that Indian tribes were similar to local governments, 
but quite separate from them. For instance, one section of the 
preamble to the final rule is titled ``Concerns Regarding Local 
Government and Indian Tribe Impacts''. 56 FR at 50980; the section 
discussing the financial assurance issue discusses Indian tribes 
separately from local governments. Id. at 51107.
---------------------------------------------------------------------------

5. RCRA Definition of ``State''
    One commenter asserted that Congress could easily have included 
Indian tribes in the definition of ``state,'' and that the fact that 
Congress did not do so indicates that Congress did not want to give 
tribes a sovereign role for RCRA purposes. While the scant legislative 
history allows for little comment on Congress' motives in not 
explicitly allowing Indian tribes to be treated in the same manner as 
states, EPA believes that, had Congress clearly intended to preclude 
Indian tribes from operating in the same manner as states for purposes 
of RCRA Subtitle D, it would have made that clear in the language or 
legislative history of the 1984 Amendments. This commenter also noted 
that the regulations in 40 CFR part 258 refer to actions taken by the 
``State Director'', and that no officials of the Campo Band or the 
Campo Environmental Protection Agency (CEPA) fit EPA's definition of 
that term. However, EPA believes it has the authority to interpret its 
own regulations in a manner consistent with the statutory purpose for 
which those regulations were adopted. As discussed above, Chevron gives 
EPA the authority to interpret RCRA to allow for treatment of tribes in 
the same manner as states for purposes of program approval. EPA's use 
of the term ``State Director'' in the landfill regulations may be read 
to include tribal officials serving the function of a State Director in 
order to effectuate EPA's permissible interpretation of RCRA.
6. The Relevance of Washington Dept. of Ecology v. EPA
    Several commenters challenged EPA's reference to other 
environmental statutes to support its argument concerning treatment of 
Indian tribes under RCRA. EPA's reference to other environmental 
statutes to interpret state and tribal authority in the implementation 
of solid waste permitting programs was implicitly approved by the Ninth 
Circuit in Washington:

    Implementation of hazardous waste management programs on Indian 
lands raises questions of Indian policy as well as environmental 
policy. It is appropriate for us to defer to EPA's expertise and 
experience in reconciling these policies, gained through 
administration of similar environmental statutes on Indian lands.

    One commenter stated that EPA seeks to create a ``vacuum'' in the 
implementation and enforcement of Subtitle D of RCRA by asserting that 
the states are generally precluded from regulating MSWLFs on tribal 
lands. This commenter stated that Washington supports the commenter's 
assertion that statutes are to be read in a manner that does not find a 
vacuum, and therefore EPA's interpretation of RCRA's administrative 
scheme is contrary to Washington. EPA disagrees that its position is 
inconsistent with Washington. The Ninth Circuit in Washington in fact 
upheld EPA's denial of the State's application to regulate hazardous 
waste in Indian country, because under federal Indian law states are 
generally precluded from exercising civil regulatory authority over 
Indian country. EPA denied the portion of the State of Washington's 
application that sought to regulate hazardous waste in Indian country 
because the State had failed to demonstrate adequate jurisdiction.
    This commenter further argued that the holding in Washington that 
states lack authority to regulate waste activities on Indian lands 
should be limited to Subtitle C of RCRA because ``(w)here hazardous 
waste is concerned, the state plays no role until the * * * EPA doles 
it out * * * Where solid waste is concerned, the EPA plays no role 
unless the state fails to give that aspect of the program proper 
attention.'' However, this argument does not reach the question of 
state versus tribal authority. Even if EPA does not issue permits for 
MSWLFs in Indian country as it does for certain Subtitle C facilities, 
this does not mean that Indian tribes are not allowed to implement 
MSWLF permitting programs in the same manner as the states. Approving 
tribal MSWLF permitting programs would uphold EPA's general policy of 
encouraging non-federal implementation and enforcement of the Federal 
Criteria as does states' proper implementation of MSWLF permitting 
programs on land within the state's jurisdiction.
    Further, the argument that Washington should be limited to Subtitle 
C of RCRA ignores the fact that the definitions of section 1004(13) and 
the corresponding legislative history, as discussed above, are 
applicable to all of RCRA. The legislative history was insufficient to 
express Congressional intent to extend state jurisdiction over Indian 
country with respect to Subtitle C. It is also insufficient to extend 
state jurisdiction over Indian country with respect to Subtitle D of 
RCRA.
7. EPA May Properly Allow Tribes to Submit Applications for Approval of 
Their MSWLF Permit Programs at the Tribes' Discretion
    One comment criticizes EPA for allowing Indian tribes to seek 
approval of their MSWLF permit programs in the same manner as States, 
but not requiring Indian tribes to submit a program as States are 
required under section 4005(c). As EPA explained in the proposed 
approval, Congress did not explicitly specify a role for tribal permit 
programs under Subtitle D of RCRA. EPA is therefore unwilling to 
ascribe to Congress the specific intent to require tribes to submit 
landfill permit programs as Congress clearly intended for States. 
Furthermore, even if EPA were to mandate that tribes submit such 
programs, the only effects of a failure to submit are: (1) EPA may 
determine there to be no adequate program in place and 
[[Page 21197]] thus that it has authority to enforce the 40 CFR part 
258 Criteria directly (RCRA section 4005(c)(2)), and (2) the tribe 
would not be eligible for grant funds to operate its landfill program 
(RCRA section 4007). If a State (or tribe) elects not to submit a 
program, it may lose out on federal assistance, but Congress specified 
no other penalty. In addition, unlike the situation in most States, on 
some reservations, all solid waste may be disposed off-reservation. 
Thus, EPA sees no particular benefit to imposing an explicit 
requirement on tribes to submit a program.
    Another comment argued that EPA may not require States to 
demonstrate their jurisdiction over Indian lands when seeking approval 
of a landfill permit program, since States ``must have jurisdiction in 
order to meet the statutory mandate.'' This statement merely begs the 
question of whether states do have such jurisdiction. Nonetheless, EPA 
believes this issue is more properly addressed in the context of an 
individual State application for program approval.
8. EPA May Establish Self-implementing Landfill Criteria Where an 
Approved Adequate State or Tribal Program is Not in Place
    The State of Alaska submitted comments that the Agency's tentative 
determination to approve the Campo Band permit program is invalid 
because EPA does not have the authority under RCRA Subtitle D to 
promulgate self-implementing criteria for the disposal of solid waste. 
EPA's regulations in 40 CFR part 258 are ``self-implementing'' in that 
they apply directly to owners and operators of MSWLFs, and need not be 
imposed through a permit or other agency action. Alaska argued that EPA 
can only establish guidelines for the disposal of solid waste under 
RCRA section 1008(a) and that RCRA section 4004(a) only provides the 
Agency with the authority to provide definitions for what constitutes 
``open dumping'' of solid waste. Alaska also argued that the Hazardous 
and Solid Waste Amendments of 1984, including RCRA sections 4005(c) and 
4010(c), did not broaden EPA's authority with regard to the regulation 
of solid waste or shift the control of the disposal of such waste from 
the States to the Agency.
    EPA first notes that this comment is not timely. Two Alaska State 
agencies (the Departments of Environmental Conservation and 
Transportation and Public Facilities) and the Alaska State legislature 
submitted comments on the proposed MSWLF Criteria, but none of the 
comments challenged the Agency's authority to promulgate self-
implementing regulations under RCRA. Contrary to Alaska's assertion, 
EPA did raise for public comment the issue of how the Criteria would be 
implemented in States that do not have approved permit programs. 53 FR 
33383 (Aug. 30, 1988). Many of the proposed standards were self-
implementing in that they could be implemented directly by an owner or 
operator without State oversight. 53 FR 33382 (Aug. 30, 1988). Because 
it did not comment on the ``self-implementing'' issue or file a 
petition for review of the MSWLF Criteria, Alaska may not now challenge 
EPA's authority to promulgate self-implementing regulations under RCRA 
Subtitle D. See 42 U.S.C. 6976(a)(1); Sierra Club v. EPA, 992 F.2d 337, 
342 n. 5 (D.C. Cir. 1993).
    EPA also disagrees with Alaska's substantive comment that the 
Agency does not have the authority to promulgate self-implementing 
criteria under RCRA Subtitle D. While EPA agrees with Alaska that the 
implementation and administration of solid waste disposal is mainly a 
state-lead function, RCRA Subtitle D provides the Agency with the 
statutory authority to promulgate criteria for such disposal.
    RCRA section 4004(a) authorizes EPA to promulgate regulations 
containing criteria that distinguish between those facilities 
classified as sanitary landfills and those which are open dumps. These 
regulations, found in 40 CFR part 257, are more than ``definitional'' 
as suggested by Alaska. They establish criteria, enforceable under RCRA 
section 7002(a)(1), to ensure that there is ``no reasonable probability 
of adverse effects on health or the environment'' from disposal of 
solid waste. 42 U.S.C. 6944(a). In enacting the Hazardous and Solid 
Waste Amendments of 1984, Congress made it clear that the prohibitions 
contained in the open dumping criteria promulgated pursuant to RCRA 
section 4004(a) were a ``direct Federal requirement, not dependent on 
the approval of a state plan * * *'' S. Rep. No. 248, 98th Cong., 2d 
Sess., at 50 (1984).
    In addition, RCRA section 4010(c) requires EPA to ``promulgate 
revisions'' of the open dumping criteria for certain solid waste 
disposal facilities ``to protect human health and the environment,'' 
and specifies certain minimum elements to be included in those 
criteria. 42 USC 6949a(c). By using the word ``promulgate,'' which 
Webster's defines to mean ``to put (a law) into action or force,'' 
(Webster's New Collegiate Dictionary, at 914 (1979)), EPA believes that 
Congress intended the Criteria contained in 40 CFR part 258 to have the 
force and effect of binding regulations. While states are to play a 
central role in the implementation of the Criteria by adopting permit 
programs under RCRA section 4005(c)(1)(B), Sierra Club v. EPA, 992 F.2d 
337, 339 (D.C. Cir. 1993), such state programs must meet the statutory 
standard of ensuring that each facility receiving hazardous household 
waste or conditionally exempt small quantity generator hazardous waste 
will comply with the Criteria promulgated by EPA.
    As fully explained by EPA at the time it promulgated the Criteria 
under RCRA section 4010(c), the Agency chose a self-implementing 
approach out of a concern that States may not have the resources 
available to adopt adequate permit programs within the eighteen month 
time period provided by the statute (RCRA section 4005(c)(1)(B)). 56 FR 
50978, 50991-93 (Oct. 9, 1991). A number of states had submitted 
comments outlining this concern. Id. at 50992.
    EPA was also concerned about the appropriate implementation and 
enforcement of the Criteria in those states that did not adopt an 
adequate permit program under RCRA section 4005(c)(1)(B). Id. at 50993. 
For example, EPA had proposed that new MSWLFs would need to be 
constructed in accordance with a design goal (which would have to fall 
within a risk-based performance range) established by the relevant 
state. 53 FR 33314, 33410 (Aug. 30, 1988). In response to a number of 
comments from states that argued that they did not have the resources 
to establish such design goals or to review design plans to determine 
whether they met a certain risk range performance standard, EPA decided 
to promulgate a design requirement that both (1) established a uniform 
design requirement that could be implemented by owners and operators in 
unapproved states and (2) allowed approved states to authorize an 
alternative design which met a performance standard. 56 FR 51058-60 
(Oct. 9, 1991). By establishing self-implementing performance standards 
for design and other requirements contained in the MSWLF Criteria, EPA 
could ensure that there would be protective implementation of the 
Criteria in states or in Indian country without approved programs where 
state or tribal oversight of a landfill design would not be present. 
Id.
    Contrary to Alaska's comment, EPA believes that adopting a self-
implementing approach in the Criteria is within the statutory authority 
provided by RCRA Subtitle D. Clearly, by enacting RCRA section 4010(c), 
Congress was expressing a concern [[Page 21198]] about the risks to 
human health and the environment posed by solid waste disposal 
facilities which receive hazardous waste. H.R. Conf. Rept. 2867, 98th 
Cong., 2d Sess., at 117 (1984) (``environmental and health problems 
caused by RCRA Subtitle D facilities are becoming increasingly serious 
and widespread''). While Congress mandated that the EPA revise the open 
dumping criteria, Congress did not specify the exact scope of the 
revised Federal Criteria or the manner by which they would be 
implemented in states without approved programs. Thus, it was left to 
EPA's discretion to implement section 4010(c) in a manner that would 
effectuate the statutory goals and policies reflected in the language 
of RCRA, including the Hazardous and Solid Waste Amendments (HSWA).
    One comment asserted that EPA may only determine the inadequacy of 
a state program in the context of filing its own enforcement action 
under section 4005(c)(2). The basis of this assertion is unclear, 
because section 4005(c)(1)(C) is clear that EPA is to make a 
determination of the adequacy of each state program, and that EPA may 
make such a determination in the context of approval or disapproval of 
a state solid waste plan--not necessarily in the context of an 
enforcement action. Section 4005(c)(2)(A) separately gives EPA the 
discretion to enforce the Criteria where EPA has determined that an 
adequate program is not in place. The commenter's reading would suggest 
that the adequacy of state programs will be determined only in 
enforcement actions. This reading would make any EPA determination 
under section 4005(c)(1)(C), and the section itself, superfluous.
    The commenter further asserted that any finding of inadequacy can 
only be met by EPA taking an enforcement action against the owner or 
operator under RCRA sections 3007 or 3008. The comment implies that if 
EPA determines that a state program is inadequate, the Agency cannot 
grant solid waste management jurisdiction to a tribe within the state. 
However, EPA's authority to determine the adequacy of a tribal solid 
waste program is not predicated on determining that the state 
regulatory program is inadequate. As discussed above, EPA's authority 
to approve tribal programs is predicated on established principles of 
federal Indian law, the holding in Chevron, and EPA's Indian Policy.
    It is clear that section 4005(c) of RCRA required states to develop 
permit programs and gave EPA the authority to evaluate state programs. 
Tribes are sovereign governments with civil authority over Indian 
country that is comparable to the civil regulatory authority of states 
outside of Indian country. Thus, EPA continues to believe it is a 
reasonable interpretation of this section and RCRA Subtitle D more 
generally for tribes to have the opportunity to apply for approval from 
EPA to run their own programs.
9. EPA Has the Authority To Approve Tribal MSWLF Programs on a Case-by-
Case Basis
    EPA also received comments suggesting that EPA's notice announcing 
its tentative determination to approve the Campo Band's application did 
not comply with the requirements of the Administrative Procedure Act 
(APA). One commenter argued that EPA cannot approve individual tribal 
programs until it promulgates a rule which specifies the criteria and 
procedures for approval. This commenter noted that other environmental 
statutes which provide authority for EPA to treat tribes in the same 
manner as states require EPA to promulgate regulations to implement the 
tribal program. EPA disagrees that it must promulgate regulations as a 
precondition of approving tribal programs. As with state MSWLF permit 
programs, EPA believes that Congress has provided adequate authority to 
approve tribal programs under section 4005(c) of RCRA based on the 
statutory criteria contained therein. Congress did not specifically 
require that EPA issue a rule specifying criteria and procedures for 
approval of state programs, and EPA maintains inherent authority to 
make such determinations on a case-by-case basis.
    The commenter also argued that a rule is necessary before approving 
any tribal program because otherwise there would be no standards for 
assuring the reasonableness of treating tribes in the same manner as 
states for purposes of RCRA Subtitle D, as there are under other 
environmental statutes which specify an explicit role for tribes. 
Another commenter asserted that EPA lacks standards for approval of 
tribal or state programs, and that, if Congress were to amend RCRA to 
allow for treatment of tribes in the same manner as states, it would 
likely require EPA to promulgate regulations for such treatment. EPA 
disagrees that standards are lacking. RCRA section 5004(c)(1)(B) 
requires states to adopt and implement ``a permit program or other 
system of prior approval and conditions to assure that each solid waste 
management facility will * * * comply'' with the Federal Criteria in 40 
CFR part 258. 42 U.S.C. 6945(c)(1)(B). RCRA section 7004(b)(1) states 
that ``public participation in the development, revision, 
implementation and enforcement of any regulation * * * or program shall 
be provided for, encouraged, and assisted by the Administrator and the 
States.'' 42 U.S.C. 6974(b)(1). As EPA explained in the tentative 
determination, the Agency interprets this statutory requirement to 
impose the following standards on state and tribal programs: tribes and 
states must (1) have enforceable standards for new and existing MSWLFs 
that are technically comparable to the Federal Criteria in 40 CFR part 
258; (2) have authority to issue a permit or other notice of prior 
approval to all new and existing MSWLFs within their jurisdiction; (3) 
provide for public participation in permit issuance and enforcement; 
and (4) show 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 has determined that 
the Campo Band's solid waste permitting program meets these 
requirements. 59 FR 24422, 24423 (May 11, 1994).
    In addition, as explained in the tentative determination, EPA has 
requested tribes to demonstrate that they are federally recognized, 
have a government exercising substantial governmental duties and 
powers, have the capability to operate a program, and have adequate 
civil regulatory authority to do so. These are the criteria Congress 
incorporated into the Clean Air Act, Clean Water Act, and Safe Drinking 
Water Act provisions that allow EPA to treat tribes in the same manner 
as states. EPA has determined that the Campo Band's program meets these 
requirements. 59 FR 24422, 24423 (May 11, 1994). In fact, on May 11, 
1992, EPA approved the Campo Band's application for treatment as a 
state under Clean Water Act (CWA) section 518(e) for the purposes of 
CWA section 106. On September 28, 1993, EPA approved the Campo Band's 
application for treatment as a state under Clean Water Act section 
518(e) for the purposes of CWA section 319.
    Alaska argued that EPA's tentative determination to approve the 
Campo Band program constitutes a proposed rule under the Administrative 
Procedures Act (APA) since, in Alaska's opinion, the preamble 
establishes the general standard that Alaska Native Villages are 
eligible to submit MSWLF permit programs for approval. Among other 
things, Alaska criticizes as misleading EPA's placement of such a 
substantive rule in the ``Notices'' section of the Federal Register, 
rather than the [[Page 21199]] ``Proposed Rules'' section. Alaska also 
asserted that EPA has violated the Freedom of Information Act (FOIA) 
requirement to ``separately state and currently publish * * * 
substantive rules'' by ``de facto'' promulgation of the STIR in the 
same notice in which the Agency determines the adequacy of the Campo 
Band's program. EPA disagrees with Alaska's characterization of the 
tentative determination. EPA acknowledges that the preamble to the 
tentative determination makes reference to EPA's policy that ``Alaska 
Native entities * * * may apply for permit program approval.'' 59 FR 
24422, 24426 (May 11, 1994). It is clear from the context of the 
discussion, however, that EPA was not trying to propose a rule with 
respect to Alaska Natives, but merely was observing that RCRA does not 
expressly preclude Alaska Native Villages from applying for program 
approval. EPA has not proposed to approve any Native Village program 
and, although the tentative determination may have been ambiguous on 
this point, the Agency has not determined that any village would 
necessarily satisfy the requirements for program approval. The 
determination whether any Alaska Native Village will qualify to operate 
a MSWLF permitting program will be made when such application, if any, 
is submitted. Thus, the statement in EPA's tentative determination does 
not give rights that Alaska Natives did not previously hold, nor does 
it purport to divest the State of Alaska of any authority it may have 
to regulate MSWLFs in Native Villages. The tentative determination and 
today's action are intended to affect only the Campo Band. In addition, 
EPA does not hereby purport to adopt the STIR; discussions of tribal 
jurisdiction in both the tentative determination and today's action are 
included for the purpose of explaining EPA's determination of the 
adequacy of the Campo Band's program. If and when EPA proposes the STIR 
and/or proposes to approve a Native Village program, as discussed 
above, Alaska may raise its jurisdictional and other concerns at that 
time and EPA will give them due consideration.
    One commenter stated that Congress never intended to have EPA 
delegate the authority to regulate municipal solid waste landfills to 
every or any Indian tribe in the nation, because the burden on EPA 
would be overwhelming. The same commenter suggested that EPA should 
retain authority over Indian country. Alternatively, the commenter 
suggested that EPA delegate this authority to states. EPA notes that 
EPA permitting and enforcement of solid waste management in Indian 
country could result in a far greater burden on the Agency than 
determination of the adequacy of tribal programs. More importantly, 
under Subtitle D of RCRA, EPA has no authority to enforce the Federal 
Criteria, unless it determines that the applicable program is 
inadequate, in which case EPA would have discretion to take enforcement 
actions for violations of RCRA (RCRA section 4005(c)(2)(A)). Therefore, 
EPA cannot ``delegate'' authority to states or tribes. EPA's role, as 
prescribed by Congress, is limited to determining whether the solid 
waste programs adopted by states or tribes are adequate to assure 
compliance with the federal regulations (RCRA section 4005(c)(1)(C).) 
Finally, as discussed above, under federal law EPA does not have the 
power to give states jurisdiction over Indian country.
    One commenter stated that the best interest of the people and 
environmental laws are met by consistent yet flexible regulations 
covering municipal solid waste landfills. This commenter expressed 
concern that allowing hundreds of tribes to regulate solid waste will 
result in inconsistency. As the comment itself noted, flexibility as 
well as consistency is important in protecting human health and the 
environment. Congress required EPA to set minimum standards for 
landfills, and required states to adopt and implement permit programs 
which would assure compliance with the federal standards. Both RCRA and 
the federal regulations take into account the history of local 
regulation of solid waste and the need to have solid waste requirements 
be flexible enough to accommodate local needs. EPA will not approve a 
state or tribal program unless it is adequate to ensure that all MSWLFs 
within the state's or tribe's jurisdiction will comply with the 
Criteria in 40 CFR part 258. Therefore, EPA believes that approval of 
tribal solid waste programs will not result in any inconsistency that 
would violate the requirements of 40 CFR part 258. It is possible, 
however, that owners or operators of landfills in more than one 
jurisdiction may have to meet different requirements in different 
jurisdictions. This was the case prior to the federal requirements, 
which merely set new national minimum standards for landfills.
    One commenter questioned EPA's motives and its purpose in providing 
a program adequacy ruling. RCRA itself establishes EPA's role. Section 
4005(c)(1)(C) provides that ``[t]he Administrator shall determine 
whether each state has developed an adequate program''. Congress 
mandated that EPA determine the adequacy of state programs. EPA's 
motive and purpose in providing a program adequacy determination for 
tribal solid waste programs are the same as for providing such a 
determination for state programs: to ensure that the appropriate 
government entity is ensuring the proper management of solid waste 
within its jurisdiction. As discussed above, EPA's approval of tribal 
solid waste programs is consistent with federal Indian law and EPA's 
Indian Policy.
    One commenter stated that non-tribal regulation of the land on 
which a proposed landfill would be situated is critical because 
contaminated groundwater could migrate off the Reservation. In support 
of this position, the commenter quoted from the Federal Register notice 
in which EPA published its tentative approval of the Campo Band's 
program. In the tentative determination, EPA stated that where 
groundwater can migrate, ``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''. 59 FR 24422, 
24425-26 (May 11, 1994). The quoted statement supports tribes' 
assertions of jurisdiction to regulate solid waste management on non-
Indian fee land within a reservation. As discussed above, EPA does not 
have authority to grant states jurisdiction over Indian country; in 
fact, federal law limits the jurisdiction of states over Indian 
country. The Campo Reservation is entirely tribal trust land.
    One commenter stated that none of the statutory sections cited by 
EPA in the tentative determination provides authority for EPA's action 
of approving the Campo Band's program. The comment questioned the 
appropriate forum for judicial challenges to EPA's action. The 
statutory sections--RCRA sections 2002, 4005 and 4010--authorize 
promulgation of regulations and provision of technical assistance and 
provide for review and approval of state programs. Although all three 
of these statutory sections support EPA's action today, EPA has the 
authority to approve tribal programs under RCRA section 4005 using its 
discretion to fill gaps pursuant to Chevron. The appropriate forum for 
such judicial challenges is ultimately a decision for a court. However, 
EPA currently believes that the appropriate forum may be the U.S. Court 
of Appeals for the District of Columbia Circuit, pursuant to RCRA 
section 7006(a), 42 U.S.C. 6976(a). [[Page 21200]] 

B. Treating the Campo Band as a State

    One commenter suggested that ``soliciting a waste stream from 
several hundred thousand non-tribal members can hardly be viewed as 
self-government * * *.''. EPA agrees that importation of waste does not 
equate to self-government. However, the Campo Band does not rely on the 
fact that it will receive waste from off-Reservation to establish that 
it is self-governing. The Campo Band's application amply demonstrates 
that the tribe has a government exercising substantial governmental 
duties and powers. Nothing in RCRA, the Federal Criteria, or the draft 
STIR would preclude a state or tribe from implementing a municipal 
solid waste permitting program which includes imported waste, as long 
as the state or tribal program ensures that the MSWLFs within its 
jurisdiction will comply with the Federal Criteria in 40 CFR part 258.
    One commenter asked whether the Campo Band has state status, what 
gives them the right to form their own EPA, and whether they are no 
longer California residents if they don't have to follow California 
law. The Campo Band is a federally recognized Indian tribe--a sovereign 
entity within the United States. Federal courts have affirmed the 
sovereign status of Indian tribes in numerous judicial decisions which 
have uniformly held that tribal governments retain many sovereign 
powers, despite the fact that Indian tribes and tribal territories have 
been incorporated into the United States. See Worcester v. Georgia, 31 
U.S. (6 Pet.) 515 (1832); and United States v. Mazurie, 419 U.S. 544 
(1975). As such, tribes may form their own governmental entities to 
regulate their members and activities on land within their 
jurisdiction. This includes the authority to form and administer their 
own environmental regulatory programs. Activities in Indian country are 
generally not subject to state law (see discussion under Category A 
above). Nonetheless, under the Indian Citizenship Act of 1924, 8 U.S.C. 
1401(a)(2), and the 14th Amendment to the U.S. Constitution, any member 
of a tribe born in the United States is a citizen of the United States 
and of the state where he or she resides.
    Two commenters asked whether the Campo Band had the constitutional 
authority to be treated as a state. Both the U.S. Constitution and the 
Campo Band's Constitution provide authority for today's decision. Under 
the U.S. Constitution, tribes are sovereign entities with power over 
their lands and members, and the U.S. Congress is delegated the power 
to regulate commerce with the tribes. U.S. Constitution, Article I, 
section 8, paragraph 3. Congress has exercised this authority by 
determining that EPA may treat tribes in the same manner as states for 
certain purposes under several environmental statutes, including, for 
example, the Clean Water Act section 518, 33 U.S.C. 1377. It is 
important to note that today's action does not make the Campo Band a 
state, or grant any rights to members of the Campo Band that they did 
not otherwise possess, or divest the State of California of any rights 
it might have with respect to the Campo Band. Today's action simply 
states that EPA has determined that, for purposes of RCRA Subtitle D, 
the Agency treated the Campo Band's application for solid waste program 
approval in the same manner as it would treat such an application from 
a state, and found it to be adequate.
    One commenter supported EPA's position, stating that ``the Federal 
Constitution strongly supports the conclusion that, as a general rule, 
Indian tribes that constitute sovereign governments are not subject to 
state solid waste management requirements'', and that the Supreme Court 
``has repeatedly held that tribes are sovereign entities that `retain 
attributes of sovereignty akin to those possessed by other governmental 
bodies; that is, power over people and territory'''.
    The Campo Band's Constitution establishes the Campo General Council 
and empowers it to govern the affairs of the Tribe. Constitution of the 
Campo Band of Mission Indians, Article IV. Pursuant to this power, the 
General Council passed several Resolutions establishing the Campo 
Environmental Protection Agency (Resolution 88-005), enacting the Campo 
Band of Mission Indians Environmental Policy Act of 1990 and the Solid 
Waste Management Code of 1990 (Resolution 90-0019).

C. Off-Reservation Voice in Tribal Politics, Fair Hearings

    Commenters expressed concern that, despite the possibility of 
negative environmental impacts to them, the Campo Band's neighbors have 
no voice in tribal politics, cannot vote tribal officials out of 
office, and may not receive a fair hearing in the Campo Band's 
Environmental Court when actions against the landfill would negatively 
affect tribal income.
    EPA agrees that citizens should have a voice in the regulation of 
the environment. Neighbors of the Campo Reservation have several 
avenues for voicing their concerns regarding solid waste practices on 
the Reservation. The Campo Band has adopted laws requiring that CEPA 
take specific actions in response to complaints from any person, and 
allowing any person adversely affected by CEPA's actions to challenge 
CEPA in the Campo Environmental Court. See V Campo Tribal Regulations 
(C.T.R.) 590.02, 590.10, and I C.T.R. 150.02.
    The fact that off-Reservation neighbors cannot vote in tribal 
elections is analogous to California residents who live near a landfill 
in another state in which they cannot vote. EPA cannot require as a 
prerequisite for program approval that a state or tribe allow non-
residents to vote in that state's or tribe's elections. EPA believes 
that the procedures adopted by the Campo Band ensure that the Tribe 
will consider and respond to concerns of off-Reservation neighbors. In 
addition, the citizen suit provision of RCRA, which authorizes lawsuits 
in federal District Court, is still available after EPA has approved a 
state or tribal program.
    One commenter stated that a common requirement of state program 
approval includes administrative or judicial review procedures, and the 
commenter alleges that the Campo Band expressly disclaimed any ability 
by nontribal members to seek judicial review of Campo Band actions. The 
commenter doesn't indicate where the Campo Band made such a disclaimer. 
However, as discussed above, the Campo Band's program does allow 
nontribal members to seek judicial review of Campo Band actions. The 
Campo Band has explicitly waived sovereign immunity for purposes of 
such challenges to CEPA actions in section 302 of the Campo 
Environmental Policy Act.

D. Sole Source Aquifer

    A number of commenters noted that the Campo/Cottonwood Creek 
aquifer is the sole source of drinking water available to local 
communities in the United States and Mexico, alternative water sources 
would be expensive or unavailable, and EPA has designated the Campo/
Cottonwood Creek aquifer a sole source aquifer under section 1424(e) of 
the Safe Drinking Water Act (SDWA). Commenters suggested that because a 
proposed landfill will be located near a sole source aquifer, EPA 
should disapprove the Campo Band's regulatory program.
    EPA agrees that protection of groundwater resources and sole source 
aquifers is of utmost importance. However, EPA cannot disapprove a 
state or tribal regulatory program because a sole source aquifer exists 
within its jurisdiction. Under provisions of section 1424(e) of the 
SDWA, 42 U.S.C. 300h-3(e), the EPA Regional Administrator 
[[Page 21201]] granted a petition for designation of a Campo/Cottonwood 
Creek Sole Source Aquifer (SSA) on May 5, 1993. Notice of the 
designation was published in the Federal Register on May 28, 1993 (58 
FR 31024). The petition was submitted for a 400-square mile area along 
the U.S./Mexico border in the vicinity of Campo, California.
    Under section 1424(e) of the SDWA, once an area has been designated 
a SSA:

    No commitment for Federal financial assistance (through a grant, 
contract, loan guarantee, or otherwise) may be entered into for any 
project which the Administrator determines may contaminate such 
aquifer through a recharge zone so as to create a significant hazard 
to public health* * *

    ``Federal financial assistance'' is defined in 40 CFR 149.101(g). 
Examples of projects include sewage treatment plants, funded in part by 
federal grant monies, and housing projects receiving federal loans. 
Neither EPA's approval of the Campo Band's solid waste program nor the 
proposed landfill meet the definition of a federal financially assisted 
project. Thus, the SDWA would not prohibit either the proposed landfill 
or program approval.
    In reviewing state and tribal regulatory programs, EPA determines 
whether the programs will ensure compliance with EPA's landfill 
regulations in 40 CFR part 258. EPA believes that the Campo Band's 
landfill regulations, including its groundwater monitoring and 
corrective action regulations, will ensure compliance with the exacting 
groundwater monitoring and corrective action requirements contained in 
EPA's 40 CFR part 258 regulations. EPA also believes that the Campo 
Band's regulations will ensure compliance with 40 CFR 258.3 which 
requires owners and operators to comply with all other applicable 
federal rules, laws, regulations, or other requirements.
    One commenter was concerned that there is no proposed mitigation if 
the groundwater supply is contaminated. Mitigation measures for 
individual landfills within the jurisdiction of a state or tribal 
program are not required or used as a basis for program decisions by 
EPA. However, EPA's 40 CFR part 258 requirements and the Campo Band's 
regulations contain strict standards for groundwater monitoring, 
corrective action and financial assurance. EPA believes protection of 
groundwater resources is of utmost importance. It is the responsibility 
of the Campo Band to ensure that landfills on the Reservation comply 
with its regulations and permits.
    One commenter asked if the Campo Band takes over operations of the 
proposed landfill, will they qualify for federal funding and will the 
landfill then fall under the definition of a federal financially 
assisted project. This comment would require EPA to speculate without 
any information about the legal or factual circumstances under which 
the Campo Band might apply for federal financial assistance. EPA cannot 
at this time make a determination as to whether the Campo Band would 
seek or qualify for financial assistance, whether the landfill would be 
a federal financially assisted project, or about the applicability of 
section 1424(e) of the SDWA to such potential future financial 
assistance.

E. United States-Mexico Border Issues

    A number of commenters expressed concern about the potential 
environmental and economic impacts of the proposed landfill on the 
people and communities in Mexico. Commenters stated that the proposed 
landfill poses risks to the rights of the Mexican border communities to 
be free from threats to their health and natural resources. 
Specifically, commenters raised siting concerns related to EPA's 
responsibilities under Executive Order 12114 (E.O. 12114), entitled 
``Environmental Effects Abroad Of Major Federal Actions'', and the 
Agreement Between the United States of America and the United Mexican 
States on Cooperation for the Protection and Improvement of the 
Environment in the Border Area (La Paz Agreement).
    E.O. 12114 calls for environmental assessment of major federal 
actions having significant effects on the environment outside the 
borders of the United States. EPA does not believe that approval of the 
Campo Band's regulatory program is a major action which will have 
significant environmental effects outside of the United States. As 
noted above, EPA's decision regarding the adequacy of the Campo Band's 
regulatory program is not a ruling on any landfill which might be 
proposed under their regulatory program. EPA notes that approval of 
state and tribal regulatory programs is not among the activities to 
which environmental review requirements apply under EPA's rules for 
implementing the Executive Order. 40 CFR 6.1002.
    40 CFR 6.1002 states that review requirements apply to major 
permitting or licensing by EPA of facilities which affect the global 
commons or the environment of a foreign nation, including permitting 
under the Clean Air Act. 40 CFR 6.1004(c) provides that the information 
required to be submitted by the permit applicant satisfies the 
requirements of E.O. 12114. EPA agrees that assessment and 
consideration of the transboundary impacts of sites in the border zone 
are extremely important. EPA has maintained open communications with 
Mexico regarding the proposed landfill and the regulatory program 
approval process. In June 1992, the Hazardous Waste Work Group, 
established under the La Paz Agreement, formally adopted a 
``Consultative Mechanism for Exchange of Information Between the United 
States and Mexico on Facility Siting.'' This consultative mechanism, 
although it is not legally binding, sets forth the intent of the United 
States and Mexican governments to notify each other of waste sites 
proposed for construction in the border area of their respective 
countries. The consultative mechanism was approved by the National 
Coordinators of the La Paz Agreement in 1992, and forms the basis upon 
which EPA has continued to inform counterpart officials in Mexico of 
developments regarding the proposed Campo municipal solid waste 
landfill. EPA has made every effort to provide Mexican officials with 
information on the proposed site and take their concerns about this 
matter into consideration.
    The Binational Hazardous Waste Work Group, as established under the 
1983 La Paz Agreement, is the forum through which the United States 
continues to notify and inform the government of Mexico of waste 
disposal sites proposed to be constructed within the border area of the 
United States which are subject to U.S. environmental regulatory 
review, and which might have a transboundary impact in the Mexico 
border zone. The Work Group is also the main forum for bilateral 
discussions of such proposed sites. These notifications, the provision 
of information by the United States to Mexico, and the nature of the 
discussions that take place at the Work Group meetings are reported to 
both governments at annual meetings of the National Coordinators, as 
specified in the La Paz Agreement. Moreover, the government of Mexico 
and its citizens were encouraged to participate in the public hearing 
as part of EPA's review process for approval of the Campo Band's 
regulatory program. EPA has sent Mexico extensive information on the 
proposed landfill and on EPA's actions related to the proposed 
landfill.
    In the interest of furthering our efforts to communicate fully with 
Mexico on this site, EPA coordinated a meeting between U.S., Mexican 
and Campo Band government agencies on July 1, 1994. The purpose of that 
meeting was to share information on the roles and 
[[Page 21202]] authorities of the different agencies involved in 
regulating and permitting the proposed landfill. EPA will keep the 
appropriate Mexican officials fully informed on EPA's actions 
concerning the Campo Band's program and the proposed landfill.
    In addition, CEPA has maintained open communications with the 
Government of Mexico with regard to the proposed landfill. EPA has 
encouraged CEPA to continue to respond to the Mexican government's 
concerns directly in the spirit of open communication.
    In sum, EPA believes that the appropriate forums for raising 
concerns regarding the siting of the proposed landfill are the 
Binational Hazardous Waste Work Group, the National Environmental 
Policy Act (NEPA) process and CEPA's permitting process. With respect 
to potential environmental and economic impacts to Mexico and the U.S., 
comments have been responded to in Category K below.

F. Capability of the Campo Band

    A number of commenters suggested that the Campo Band and the Campo 
Environmental Protection Agency lack regulatory and enforcement history 
and ability and, in some cases, selectively enforce regulations. 
Commenters suggested that CEPA does not have the ability or willingness 
to enforce its regulations. Some commenters suggested that EPA should 
deny the Campo Band's program, reconsider the Campo Band's application 
for approval of its regulatory program after a track record has been 
established, and supervise the Campo Band. One commenter stated that 
the Campo Band has no education or experience in the solid waste arena. 
One commenter stated that it would be wrong to approve the program of 
such a small organization. EPA also received comments stating that CEPA 
and the Campo people are independent, capable, and concerned about 
protecting their environment and water. Commenters stated that the 
Campo Band's regulatory program is second to none.
    EPA believes that the Campo Band's program meets or exceeds federal 
standards and that the Campo Band is capable of managing its regulatory 
program. The Campo Band has shown that it has jurisdiction and its 
staff resources are adequate to manage its solid waste permitting 
program. The Campo Band's application shows that CEPA devotes over 
three full-time positions to landfill permitting, monitoring and 
enforcement. The Campo Band also has contracts with firms providing 
personnel with legal and technical expertise.
    In addition to demonstrating that its staff resources are adequate, 
the Campo Band's application demonstrates that it has management and 
technical skills. CEPA employs individuals with years of environmental 
regulatory experience and degrees in engineering and geology. The Campo 
Band application also demonstrates that the Campo Band has entities 
that exercise executive (Executive Committee), legislative (General 
Council) and judicial (Campo Environmental Court) functions. The Campo 
Band has also demonstrated experience in implementing public health and 
environmental programs. The Campo Band has adopted codes, ordinances or 
regulations governing land use planning, housing, gaming and solid 
waste. CEPA has monitored development of the proposed landfill on the 
Reservation and has worked closely with the State of California to 
ensure that solid waste activities on the Reservation will comply with 
California law. Finally, the Campo Band has demonstrated independence 
between tribal regulatory entities and regulated entities.
    EPA notes that prior solid waste regulatory history is not a 
requirement for EPA approval of a solid waste permitting program. The 
fact that Congress gave states 180 days after adoption of federal 
landfill standards to adopt and implement programs ensuring compliance 
with those standards indicates that Congress anticipated that states 
(and tribes) may not have had such programs in place before the federal 
standards were promulgated. EPA believes that tribes are fundamentally 
able to regulate the environment in the same manner as states, and 
notes that states have a variety of levels of experience in 
environmental regulation. The ability to adopt and implement 
environmental laws varies widely from state to state and tribe to 
tribe. EPA evaluates each state and tribe individually to determine 
whether it has adopted, and is capable of enforcing, a solid waste 
program that is adequate to assure compliance with the federal 
regulations. Some states have not demonstrated a history of adopting or 
enforcing solid waste requirements prior to applying to EPA for program 
approval under RCRA Subtitle D. EPA is taking today's action because 
the Agency has determined that the Campo Band's program is adequate to 
assure compliance with the federal regulations. The Tribe not only has 
permitting authority, technical standards, public participation 
procedures and enforcement authority that meet or exceed the federal 
standards, but also the staff, resources and technical expertise 
available to implement and enforce the program.
    Some commenters specifically stated that CEPA has not enforced its 
regulations in cases of auto crushing, septic systems, tire burial and 
litter control. EPA wishes to clarify that review and approval of the 
Campo Band's program is related solely to the Campo Band's landfill 
permitting and enforcement program. Regulation of car crushing, septic 
systems, tire burial and litter are not covered by this action and are 
not legal grounds for denial of a solid waste regulatory program. EPA 
suggests that commenters concerned about these activities raise their 
concerns with CEPA and/or other appropriate tribal or federal agencies. 
Further information regarding hazardous waste concerns involving car 
crushing is provided below.
    One commenter expressed concern that no matter how good regulations 
are, they can't prevent pollution, it is difficult to enforce them--
that most people don't have the time, energy and money to bring citizen 
suits--and that it is difficult to clean up contaminated groundwater.
    EPA understands that regulations are only as good as the ability to 
enforce them. EPA's regulations are designed to minimize environmental 
and health impacts from landfills. Congress did not give EPA authority 
to oversee directly the operations of landfills. Therefore, approving 
adequate state and tribal programs to regulate landfills is the best 
way to ensure that the regulations are enforced. EPA believes that the 
Campo Band's program meets or exceeds federal standards and that the 
Tribe has demonstrated interest in appropriately regulating facilities 
under its jurisdiction.
    Finally, if CEPA is unable, for whatever reason, to enforce the 
program requirements, and the proposed landfill fails to comply with 
the Federal Criteria, RCRA section 7002 allows any person to sue the 
owner or operator of the landfill. In addition, withdrawal of program 
approval may be initiated where it appears that a state or tribal 
permit program may no longer be adequate to ensure compliance with the 
RCRA Subtitle D Federal Criteria. Section 239.13 of the draft STIR 
specifies conditions and procedures which would be used by EPA as 
guidance for withdrawal of adequacy determinations.

G. Conflicts of Interest

    Several commenters raised concerns that the Campo Band may have 
potential conflicts of interest in [[Page 21203]] regulating a proposed 
landfill that will provide income for the Tribe. These issues are 
discussed below.
    First, however, it is important to explain that nothing in Subtitle 
D of RCRA requires that EPA consider conflict of interest in 
determining the adequacy of a state or tribal solid waste permitting 
program. There is language in the preamble to the draft STIR that 
addresses conflicts of interest, but it merely encourages states and 
tribes to work with local agencies and provide oversight to prevent 
problems such as local conflicts of interest. The preamble also 
incorporates the criteria used in other environmental statutes to 
evaluate whether to treat tribes in the same manner as states. These 
requirements are that a tribe: (1) Be federally recognized, (2) have a 
government exercising substantial powers, (3) have jurisdiction over 
the parties and the subject matter to be regulated, and (4) be 
reasonably expected to be capable of managing the program. The 
capability requirement is not defined or discussed in the draft STIR. 
However, where EPA has adopted regulations addressing this 
``capability'' requirement in other statutes, the Agency has considered 
whether the tribe has demonstrated ``sufficient independence'' of the 
regulated and regulatory entities of the tribe ``to assure effective 
and fair administration of the program.'' 40 CFR 123.31, 58 FR 67981 
(December 22, 1993). EPA believes that the Campo Band has met these 
standards.
    The proposed Campo landfill will not be operated and regulated by 
the same tribal entity. The operator of the proposed landfill will not 
be CEPA, but a private, non-tribal company. Muht-Hei, Inc., the tribal 
business entity, is a separate tribal entity from CEPA. The Campo 
Band's regulations define Muht-Hei, Inc. as the operator of any solid 
waste facility on the Reservation. This situation is analogous to a 
privately operated landfill owned by one state agency and regulated by 
another.
    One commenter stated that the Campo Band should have conflict of 
interest codes for tribal office holders and board members, similar to 
those in California's Government Code sections 87300, 87302 and Public 
Resources Code (PRC) sections 43207, 40402 and 40709.5. The comment 
asserted that the Campo Band could not meet the standards set by these 
provisions.
    Although not required by RCRA, the Federal Criteria in 40 CFR Part 
258 or the draft STIR, the Campo Band has adopted regulations governing 
conflicts of interest.3 For example, the Campo Band has adopted a 
regulation governing conflicts of interest on the part of the CEPA 
Board of Commissioners. This regulation provides that:

    \3\Other federal statutes contain statutory provisions 
establishing conflict of interest requirements for state programs. 
See Clean Water Act section 304(i)(2)(D), 33 U.S.C. 1314(i)(2)(D); 
Clean Air Act section 110(a)(2)(E)(ii), 42 U.S.C. 7410(a)(2)(E)(ii). 
For example, under Clean Water Act section 304(i), state programs 
must have a conflict provision similar to California PRC section 
40402 to obtain EPA authorization. Nothing in RCRA, the Federal 
Criteria in 40 CFR part 258, or the draft STIR requires such a 
provision. Therefore, EPA has not required that any state or tribe 
establish conflict of interest codes in order to demonstrate that a 
solid waste program is adequate to assure compliance with the 
Federal Criteria.

    A member of the Board may not participate in decisions relating 
to the governance and management of CEPA if the member has a direct 
financial interest in the person or activity being regulated. Tribal 
membership does not preclude participation in decisions involving 
---------------------------------------------------------------------------
activities on or relating to property owned by the Band.

I C.T.R. 110.10. A similar provision for judges on the Campo 
Environmental Court is set forth in I C.T.R. 150.09(e). Campo law also 
prohibits bribery, threats, or other efforts ``to obstruct or impede 
the activities of CEPA or the Board'', or to ``commit fraud * * * with 
the intent to evade or defeat Tribal environmental codes or 
regulations,'' III Campo Environmental Policy Act 303(a).
    EPA believes that the Campo Band has taken steps to prevent 
conflict of interest through adoption of I C.T.R. 110.10, 150.09(e), 
and III Campo Environmental Policy Act 303(a), quoted above. EPA also 
believes that the Tribe is not ``regulating itself'', because the 
actual operator of the landfill, Mid-American Waste Systems, Inc., is 
not a tribal entity, and CEPA and Muht-Hei are ``sufficiently 
independent to assure effective and fair administration of the 
program.'' 40 CFR 123.31, 58 FR 67981 (December 22, 1993). The Tribe 
has also adopted provisions allowing anyone (including non-members) to 
challenge CEPA in the Campo Environmental Court. See III Campo 
Environmental Policy Act 302, I C.T.R. 150.02.
    Several commenters expressed concern that the Campo Band has a 
conflict of interest because it has received and will continue to 
receive revenues from the operator of the landfill, and would therefore 
not enforce costly requirements that could reduce tribal income. One 
commenter suggested that this conflict is particularly acute because 
adverse impacts of the proposed landfill may be more serious outside 
the Reservation. Commenters felt CEPA did not have the incentive, 
objectivity or willingness to enforce the solid waste requirements. One 
commenter asked what incentive there is for tribal authorities not to 
accept gifts that can influence decisions. Another commenter suggested 
that approving the Campo Band's program would be like ``the fox 
guarding the chicken house'', whereas states have demonstrated ability 
to enforce environmental regulation over many decades. One commenter 
suggested that the Tribal Chairman had prematurely approved the 
landfill permit to operate by stating that the landfill will open in 
June 1995. In contrast, one commenter stated that it is not true that 
the economic opportunity of a landfill is more important to tribal 
members than environmental protection of the land.
    EPA disagrees that the Campo Band does not have the incentive, 
objectivity or willingness to enforce the solid waste requirements. The 
Campo Band has adopted landfill liner design and release detection 
regulations which are more stringent--and more costly to implement--
than the federal or California requirements, and which are beyond those 
needed to obtain EPA approval. This indicates that the Campo Band is 
willing to take steps to protect human health and the environment 
despite the fact that such steps will cost money and potentially reduce 
revenues from the proposed landfill. In addition, CEPA makes decisions 
on applications for landfill permits in accordance with its 
regulations, after notice and an opportunity for public comment, 
regardless of statements by the Tribal Chairman.

H. Adequacy of the Campo Band's Resources

    A number of commenters expressed concern that ``there is a shortage 
of funds in the backcountry which would not provide the adequate 
supervision this would need'' and CEPA has inadequate resources to 
implement or enforce a regulatory program. Commenters asserted that 
Mid-American Waste Systems, Inc., the proposed landfill operator, is 
having financial problems and asked where the Campo Band will get 
resources to fund its program if Mid-American Waste Systems, Inc. fails 
to provide adequate resources.
    The Campo Band addressed resources in its narrative description of 
the application for program approval. EPA found the Campo Band's 
narrative description, including its staff resource description, 
adequate. EPA does not require specific resource and staffing 
requirements because each state or tribe [[Page 21204]] has different 
resource requirements and strategies for ensuring compliance. EPA asks 
that states and tribes list the total number of regulated facilities 
within the state or tribe's jurisdiction in its application. This 
information is useful in assessing whether available resources are 
adequate to ensure compliance. The Campo Band's ratio of resources to 
the number of regulated facilities is higher than some state regulatory 
programs.
    In determining whether a state or tribe's program will ensure 
compliance with the federal landfill regulations, EPA does not require 
that states and tribes provide financial information on where funding 
for programs is generated or on how secure that funding is. As 
discussed above, the Campo Band and other approved states and tribes 
are expected to sustain the regulatory program presented in their 
applications. Withdrawal of program approval may be initiated where it 
appears that the state or tribal permit program may no longer be 
adequate to ensure compliance with the RCRA Subtitle D Federal 
Criteria.

I. CEPA's Authority to Stop Harm to Off-Reservation

    One commenter requested that section 205 of the Tribal 
Environmental Policy Act of 1990 (Act), which provides authority to 
issue restraining orders and injunctions, be amended to include 
protection of off-Reservation residents and environments.
    Section 205(a)(2)(C) of the Act, as it read on the date EPA 
published its tentative determination, provided that emergency 
restraining orders could not be issued without notice to the adverse 
party unless immediate and irreparable injury, loss or damage would 
result to the Reservation residents or environment before notice could 
be served. Section 205(b)(2)(C) did not clearly provide for preliminary 
or permanent injunctions against acts that threatened the public health 
or safety or the environment off-Reservation. EPA discussed the concern 
raised by this comment with the Campo Band. In response, on December 
11, 1994, the Campo Band General Council amended section 205 of the 
Act. That section now clearly provides for issuance of emergency 
restraining orders and injunctions against acts that threaten human 
health, safety or welfare or the environment, without distinguishing 
between on-Reservation and off-Reservation threats. A copy of the 
amended Act is available at EPA's office in San Francisco, at the Campo 
Environmental Protection Agency's office and at the public library in 
the town of Campo.

J. Campo Band Leadership and Membership

    A number of commenters expressed concern regarding alleged 
corruption in the Campo Band. One commenter asserted that tribal 
officials are on their best behavior to obtain approval from regulatory 
agencies, but have not always acted responsibly. Commenters also 
asserted that tribal members intimidate off-reservation opponents to 
the landfill and that the Chairman of the Campo Band had illegally 
received payments from landfill project proponents. One commenter also 
stated that non-tribal members had voted on tribal issues at tribal 
meetings.
    EPA does not believe these allegations should be considerations in 
EPA's final determination regarding the adequacy of the Campo Band's 
regulatory program. For the reasons described above, EPA believes that 
the Campo Band's solid waste regulatory program will ensure compliance 
with the federal regulatory requirements. The Campo Band created CEPA 
to regulate solid waste on the Reservation. CEPA has regulatory 
authorities that are separate from the authority of the Chairman of the 
Campo Band and from the authorities of the tribal council. EPA has been 
informed that appropriate federal agencies have been apprised of these 
allegations.

K. Landfill-Specific Issues

    Many commenters expressed concern regarding the potential 
environmental impacts of the proposed landfill and the ability of the 
landfill owner/operator to comply with applicable regulations. These 
landfill-specific concerns included potential for contamination to 
groundwater which flows across the United States-Mexico border, ability 
to monitor and clean up or mitigate groundwater in a fractured bedrock 
setting, location of a landfill in a seismic impact zone, compliance 
with financial assurance requirements, strong winds, traffic problems; 
and general risks to the ecosystem, economy and property values of off-
reservation residents, and to Mexican communities and citizens. A 
number of commenters noted that groundwater monitoring in the fractured 
bedrock setting has not been adequately addressed. One commenter 
expressed concern that the landfill site should be characterized before 
construction of the landfill, not during or after. Commenters expressed 
concern regarding importation of waste to a groundwater dependent area 
and asked about sources and types of waste to be sent to the landfill, 
life expectancy of the landfill, and recycling efforts. Commenters 
requested that EPA oppose the proposed facility and deny program 
approval because of landfill-specific concerns. Other commenters 
suggested that the landfill will be one of the safest landfills in the 
country, will provide economic support and jobs for the Tribe and will 
benefit other communities. Another commenter stated that the plan for 
the Muht-Hei facility is very detailed and well thought out.
    EPA understands that there is tremendous controversy surrounding 
the proposed landfill. However, EPA does not make solid waste 
permitting decisions about individual landfills under the RCRA program. 
EPA's action today approves the Campo Band's solid waste regulatory 
program. This program approval means that EPA has reviewed the Campo 
Band's regulatory program, and has determined that it will ensure 
compliance with the Federal Criteria.
    Concerns regarding the proposed landfill or the ability of the 
landfill to comply with applicable regulations should be raised with 
the agency responsible for ensuring compliance with those regulations. 
CEPA, the U.S. EPA, the Bureau of Indian Affairs (BIA) and the 
California Environmental Protection Agency (Cal EPA) all have roles 
with respect to the proposed landfill. It should be noted, however, 
that the U.S. EPA's permitting role is limited to permitting under the 
Clean Air Act.
    One commenter stated that it will be adversely impacted by flaring, 
dust generation, truck haul activities, training, and water and light 
pollution from the landfill. Potential air pollution from flaring, dust 
generation and truck haul activities are issues that are being 
addressed through U.S. EPA's permitting under the Clean Air Act. With 
respect to the remaining concerns, EPA's action today is a 
determination that the Campo Band's solid waste permitting program is 
adequate to assure compliance with the federal regulations at 40 CFR 
part 258. A landfill may be constructed and operated without EPA 
approval of the state or tribal program in which the landfill is 
located, as long as it meets these federal requirements. EPA's 
regulations were designed to minimize negative environmental impacts 
from the management of municipal solid waste. However, Congress gave 
EPA no authority to enforce these requirements unless it finds that the 
landfill is in a state or within the jurisdiction of a tribe without an 
adequate permitting program. Because EPA has determined that the Campo 
Band's program is adequate, the appropriate agency to which concerns 
about the actual construction and operation of the 
[[Page 21205]] proposed landfill should be raised is the Campo 
Environmental Protection Agency.
    One commenter stated that it is unacceptable for the Campo Band to 
pursue the landfill venture to the detriment of the neighboring 
communities. Another commenter stated that the majority of air quality 
and groundwater impacts from the proposed landfill will be off-
Reservation, that the proposed landfill will be run by a non-Indian 
corporation with main offices over 1000 miles from the Reservation, and 
that the proposed landfill will be dependent on off-Reservation 
facilities such as materials recovery facilities (MRFs). At the same 
time, this commenter stated that the proposed project appears to be an 
example of ``the poisoning of Indian country''.
    These issues do not directly affect the Agency's determination of 
the adequacy of the Campo Band's solid waste permitting program. Any 
landfill is likely to have positive and negative environmental and 
economic impacts on both the community in which the landfill is located 
and the surrounding communities. EPA's regulations were designed to 
minimize negative environmental impacts from landfills, and all 
landfills must comply with these regulations. However, landfills may be 
sited in Indian country regardless of whether EPA approves tribal solid 
waste programs. EPA's decision today is based upon the Campo Band's 
ability to ensure compliance with the 40 CFR part 258 regulations. EPA 
has determined that the Campo Band has a solid waste permitting program 
that is adequate to assure compliance with those regulations.
    One commenter noted that U.S. EPA's comments on the environmental 
impact statement (EIS) for the proposed landfill identified serious 
concerns about ability to monitor adequately for groundwater 
contamination and stated that projects of this kind should not be sited 
over potable groundwater basins within fractured bedrock. Another 
commenter asked that EPA deny the lease for the proposed landfill.
    BIA is required to approve any lease for land held in trust by the 
United States for the benefit of a tribe. BIA lease approval is subject 
to NEPA and BIA has determined that the Campo lease approval is a major 
federal action which requires the preparation of an EIS. Both the EIS 
and the lease for the proposed landfill were prepared and approved by 
the BIA. EPA's comments on the EIS reflected concerns regarding 
groundwater monitoring and corrective action in the fractured bedrock 
setting. The Secretary of the Interior signed a Record of Decision 
finalizing the EIS and approving the lease after consideration of 
comments. As stated above, the decision before EPA is the Campo Band's 
program adequacy; states and tribes are the lead entities responsible 
for landfill permitting and enforcement. The Campo Band has developed 
its own landfill permitting program and CEPA is the appropriate agency 
to consider issues relating to a particular landfill on the Campo 
Reservation.
    One commenter asked who will be monitoring what goes on at the 
proposed landfill and whether Campo would have to answer to the same 
regulations as the landfills that the City of San Diego must meet. The 
landfill on the Campo Reservation will be monitored by the facility 
operator, with oversight by CEPA. Any landfill on the Campo Reservation 
must comply with the Campo Band's laws. In addition, if EPA issues a 
permit under the Clean Air Act, EPA will monitor compliance with that 
permit. A landfill on the Reservation generally would not be required 
to comply with any requirements imposed by the State of California or a 
county or city. The Campo Band has, however, worked with Cal EPA to 
ensure that the Campo Band's requirements are functionally equivalent 
to California's requirements.

L. Liability for Groundwater Contamination

    Several commenters were concerned about who would be liable for any 
groundwater contamination caused by the proposed landfill. Both the 
federal regulations and the Campo Band's regulations require 
groundwater monitoring; the Campo Band's regulations go beyond the 
federal standards to require monitoring of the vadose zone (soil above 
the water table). If pollutants exceed specified concentrations, the 
owner or operator must implement a cleanup program, and provide the 
funds to pay for the cleanup. Campo Band regulations also require the 
operator to provide minimum financial assurance of $1 million per 
occurrence to reimburse third parties for bodily injury and property 
damage.
    One commenter expressed concern about the vagueness of the Campo 
Band's regulation requiring that the landfill operator maintain minimum 
financial assurance of $1 million per occurrence to compensate third 
parties for bodily injury or property damage. The commenter expressed 
concern that the amount may be inadequate, alleging that the cost of 
cleaning up the Torres-Martinez facility is high, and that the operator 
of that facility has declared bankruptcy.
    The regulation cited by the commenter provides for $1 million to 
reimburse third parties for injuries or damage, not for performing 
corrective actions. Federal regulations do not require financial 
assurance to compensate third parties. Therefore, the Campo Band's 
regulation is in excess of federal requirements. The federal 
regulations do require that landfill owners and operators establish 
financial assurance for corrective action after a release has occurred 
(40 CFR 258.73). This requirement is intended to minimize the 
possibility that the operator will fail to provide sufficient funds to 
clean up contamination. The Campo Band's regulations (V.C.T.R. 530.41, 
530.93), like the federal regulations, require financial assurance in 
the full amount of the estimated cost of the corrective action in 
addition to the provision for reimbursing third parties noted above. 
Moreover, the Campo Band's regulations go beyond the federal 
regulation. The Campo Band's regulations require that operators provide 
financial assurance for ``known or reasonably foreseeable'' corrective 
action--before any release has occurred.

M. Purpose and Effect of Program Approval

    One commenter recommended that EPA deny the Campo Band's program 
because the primary intent of approval is to facilitate the operation 
of the proposed landfill. The primary intent of EPA's approval of state 
and tribal programs under Subtitle D of RCRA is to ensure that solid 
waste permitting programs are in place which will ensure compliance 
with the federal regulations. EPA believes that the Campo Band's 
program will ensure compliance of the Federal Criteria. The fact that 
the federal regulations provide some flexibility to landfills in 
approved states and tribes and that EPA's approval of a state or tribal 
program may facilitate operation of some landfills is not an adequate 
reason to disapprove a state or tribal program. In fact, most states 
and several tribes are pursuing program approval in part because some 
of the flexibility provisions will facilitate construction and 
operation of landfills within their jurisdiction. EPA designed the 
Federal Criteria with flexibility so that state and tribal regulatory 
agencies could implement the Criteria taking into account local 
conditions, while specifically setting criteria which are protective of 
human health and the environment.
[[Page 21206]]

    One commenter suggested that EPA's ultimate responsibility is to 
protect the environment. This commenter also stated that the CEPA 
regulations will not eliminate or mitigate risks such as the risks to 
the Sole Source Aquifer at the proposed project site. EPA disagrees 
with the commenter's statement that CEPA regulations will not eliminate 
or mitigate the risks at the proposed project site. Prior to 
promulgation of the Federal Criteria in 1991, a landfill could have 
been constructed and operated on the Campo Reservation with fewer 
restrictions than those contained in the 40 CFR part 258 Criteria. The 
federal regulations were adopted to minimize environmental and public 
health risks from landfills. These regulations impose strict standards 
for design, construction, operation, monitoring, corrective action, 
closure, post-closure care and financial assurance. The Campo Band's 
regulations set forth stringent standards that meet or exceed the 
federal standards. CEPA is responsible for ensuring that these 
standards are met. Although regulations can never completely eliminate 
risks from a project, the Campo Band has adopted a set of standards in 
addition to the federal minimum requirements which should result in the 
mitigation of risks associated with the proposed landfill.
    One commenter gave three reasons why owners and operators complying 
with approved state/tribal programs should not be considered to be 
complying with the federal regulations. First, only certain elements of 
approved programs may be modified in approved programs. Second, the 
Campo Band is not a ``state'', and therefore cannot modify the 
requirements in 40 CFR part 258. Third, the statement in the tentative 
determination shows that a purpose of EPA's action is to restrict 
citizen suits and create defenses for entities violating the federal 
regulations.
    EPA disagrees with all three points. First, EPA approval of a state 
or tribal program does not allow the approved state or tribe to modify 
or waive entirely the requirements in 40 CFR part 258. The regulations 
in 40 CFR part 258 allow alternatives to the prescribed federal 
requirements only when certain criteria are met. These alternatives are 
allowed in the federal regulations because EPA believes that when the 
Federal Criteria are met, the alternatives will protect human health 
and the environment as well as the prescribed requirements. EPA's 
determination that the Campo Band's program is adequate to ensure 
compliance with the Federal Criteria is based on the fact that any 
alternatives allowed by the Campo Band's laws meet the criteria 
required by the federal regulations. Second, as explained above, EPA 
has authority to treat tribes in the same manner as states for purposes 
of implementing RCRA Subtitle D solid waste programs. Third, EPA's 
action is not intended to restrict citizen suits or provide defenses 
for landfill owners or operators who violate the federal regulations. 
If a landfill owner or operator violates the Federal Criteria, it may 
be subject to citizen suits. EPA's statement in the tentative 
determination simply expressed the Agency's opinion that, where EPA has 
found a state or tribal requirement equivalent to the federal 
requirement, a court is likely to find compliance with the state or 
tribal requirement equivalent to compliance with the federal 
requirement.
    One commenter raised concerns about possible increases in permitted 
capacity of the landfill without public review and comment. The 
commenter also asked if, with program approval, the Campo Band will be 
able to designate the Class III (solid waste) landfill a Class II 
(hazardous waste) landfill, bypassing public participation and claiming 
that enough environmental studies of the area have been done.
    The Campo Band's program complies with the public participation 
requirements of RCRA section 7004(b)(1). In addition, EPA's draft STIR 
sets forth general standards for public involvement in permit 
determinations. EPA reviewed the Campo Band's public involvement 
requirements and found that they are adequate.
    In general, issues regarding permitted capacity are not within the 
scope of program approval and should be addressed to CEPA. The proposed 
landfill is not authorized to accept hazardous waste. Class II and 
Class III are California State and Campo Band classification categories 
for waste disposal facilities. Program approval will not affect the 
Campo Band's ability to designate a facility Class II or III. Nor will 
program approval affect the Campo Band's public participation 
requirements or requirements that environmental studies be done. 
Program approval simply indicates that the Campo Band's municipal solid 
waste landfill permitting and enforcement program will ensure 
compliance with the Federal Criteria. EPA and Campo Band regulations 
prohibit disposal of regulated hazardous waste in landfills receiving 
municipal solid waste unless the landfill is permitted to receive 
hazardous waste by the U.S. EPA or an authorized state or tribe. EPA 
has not issued a hazardous waste permit for a facility on the Campo 
Reservation, and the Campo Band is not currently authorized for the 
RCRA hazardous waste program and, therefore, cannot issue a RCRA 
hazardous waste permit. For more discussion of hazardous waste issues, 
see the responses to comments under Category P below.
    Several commenters raised the concern that the Campo Band would be 
able to modify and waive federal requirements. EPA does not agree with 
this characterization of the flexibility allowed in the federal 
regulations. The federal regulations contain detailed criteria that 
landfill owners and operators must meet. In limited cases, the 
regulations provide that the director of an EPA-approved program may 
allow alternatives if the owner or operator demonstrates that the 
landfill meets certain criteria. For example, 40 CFR 258.21 specifies 
that solid waste must be covered with six inches of earthen material at 
the end of each operating day. That same section provides that in an 
approved program the Director may approve alternative materials of 
alternative thickness if the owner or operator can demonstrate that 
such alternatives control disease vectors, fires, odors, blowing litter 
and scavenging without presenting a threat to human health and the 
environment. The Director may not approve alternative cover that can't 
meet the demonstration. The Director also may not decrease the 
frequency of applying cover. The Director may only waive daily cover 
requirements temporarily when the owner or operator demonstrates that 
extreme climatic conditions make meeting the requirements impractical. 
EPA has carefully reviewed the Campo Band solid waste program and 
determined that it does not provide for any modifications or waivers 
which would not be allowed under the federal regulations.
    One commenter was concerned about the ability to assess ``non-
specified, future'' alternatives to the Federal Criteria which would be 
allowed under an approved program. The comment essentially questions 
EPA's allowance of alternatives in the federal regulations. EPA 
explained its rationale for providing such discretion when it 
promulgated the federal regulations, 56 FR 50977, 50984-88 and 50992-94 
(October 9, 1991). Any challenge to these regulations must have been 
brought within ninety days of the promulgation of these regulations, 
pursuant to RCRA section 7006. EPA's approval of the Campo Band's 
program is based on EPA's conclusion that the Campo Band's laws contain 
all the criteria set forth in the federal regulations for allowing 
alternatives to [[Page 21207]] the self-implementing federal 
requirements.
    Several commenters stated that the Campo Band would be able to set 
up defensive barriers to citizen enforcement actions to correct 
problems at the landfill. EPA does not agree. The owners and operators 
of all landfills will be subject to citizen suits under section 7002 of 
RCRA. That section allows any ``person'' to sue any ``person'' who is 
violating any permit, standard, regulation, condition, requirement, 
prohibition, or order under RCRA, or who has contributed to the 
handling of solid waste which may present an imminent and substantial 
endangerment to health or the environment. Under this provision, 
citizens may sue landfill owners or operators for any violation of RCRA 
or the federal regulations. The citizen suit provision will remain in 
effect--and be equally available to citizens--whether EPA approves the 
Campo Band's solid waste permitting program or not. In addition, the 
Campo Band has expressly waived its sovereign immunity to allow any 
affected person to challenge CEPA actions in the Campo Environmental 
Court. See III Campo Environmental Policy Act 302. EPA's approval will 
not enable the Campo Band, CEPA or Mid-American Waste Systems, Inc. to 
establish any defensive barriers to citizen enforcement actions.
    One commenter stated that program approval is a dangerous 
precedent-setting move because the proposed landfill is the largest 
proposed solid waste facility in the nation on an Indian reservation. 
EPA does not believe that approval of regulatory programs will 
necessarily set a landfill siting precedent for Indian country. 
Landfills may be sited in states or in Indian country without EPA 
approval of the state or tribe's regulatory program. All such landfills 
must meet the Federal Criteria in 40 CFR part 258. In addition, EPA 
encourages states and tribes to establish local regulatory structures 
to ensure that municipal solid waste is managed in an environmentally 
protective manner. The Campo Band has set standards which are more 
stringent than federal standards, making the proposed landfill more 
protective of human health and the environment--and making compliance 
potentially more costly--than if there were no tribal regulatory 
program in place. EPA recognizes that some of the 40 CFR part 258 
flexibility which may be provided to municipal solid waste landfills by 
approved states and tribes may be important to the proposed landfill. 
However, EPA believes that tribes should have the same opportunities as 
states to establish systems of landfill permitting and enforcement. As 
discussed above, states generally may not regulate solid waste 
management in Indian country, and EPA does not generally have 
permitting or enforcement authority under RCRA Subtitle D. Therefore, 
allowing tribes to establish solid waste regulatory programs ensures 
oversight of solid waste practices in Indian country.
    One commenter suggested that EPA should deny approval of the Campo 
Band program because landfills deprive present and future generations 
of valuable resources and encourage waste production instead of 
pollution prevention and waste reduction. EPA agrees that waste 
reduction and pollution prevention are preferable methods of managing 
municipal solid waste to landfilling, to the extent possible. In 
response to the growing national concern about solid waste management, 
EPA developed a national strategy for addressing municipal solid waste 
management problems. This strategy is set out in a document entitled, 
``The Solid Waste Dilemma: An Agenda for Action,'' which EPA issued in 
February 1989. The cornerstone of the strategy is ``integrated waste 
management,'' in which the following solid waste reduction and 
management options work together to form an effective system: source 
reduction, recycling, and combustion and landfilling. EPA encourages 
waste reduction and recycling of municipal solid waste. However, EPA 
also recognizes the need for landfills. Congress required EPA to adopt 
federal regulations establishing minimum national standards for 
landfills. However, Congress emphasized, and EPA believes that it is 
preferable, for local, state and tribal governments to adopt their own 
solid waste permitting and enforcement programs so that landfills are 
regulated in a manner that is as environmentally responsible as 
possible. Therefore, EPA supports pollution prevention as the preferred 
waste management alternative while continuing to approve state and 
tribal regulatory programs.
    One commenter suggested that the need to site a landfill on an 
Indian reservation is a problem that has been caused by the government 
of the United States. Other commenters expressed concern that they are 
paying the price for what happened to Indians years ago. One commenter 
noted that no one is protesting other problematic landfills in San 
Diego County that are not on Indian land. This commenter also noted 
that ``Mexico is a disaster, but I have the Mexican people come and 
complaining here.''
    EPA acknowledges that there is a great deal of controversy 
surrounding the proposed landfill. The proposal to site the landfill on 
the Campo Reservation for the purpose of economic development has 
raised a great deal of interest and concern among various parties. EPA 
encourages open communication among these groups and will work to 
facilitate communication where possible.
    However, EPA strongly believes that Indian tribes should have the 
same opportunities to regulate the environment available to them as are 
available to states. This is consistent with EPA's Indian Policy and 
with federal Indian law and environmental law, including RCRA. EPA does 
not believe that a state or tribal application should be evaluated in a 
different manner because of controversy surrounding a proposed 
landfill. Neighbors of proposed landfills in California, for example, 
have raised concerns about such landfills. These concerns do not 
diminish the adequacy of the state's program. Likewise, concerns 
regarding the proposed landfill are most appropriately handled by CEPA.
    A number of commenters were concerned that the proposed landfill is 
being sited on an Indian reservation because the landfill and its 
operator, Mid-American Waste Systems, Inc., will not have to comply 
with Federal, State and municipal laws and cannot be monitored by the 
Government. As stated above, landfills in Indian country must comply 
with Federal regulations, including EPA's 40 CFR part 258 landfill 
requirements. Generally, State and local civil regulatory laws do not 
apply in Indian country. Cabazon, supra. However, the Campo Band has 
established a regulatory system which is as stringent as State and 
Federal regulatory systems. The Campo Band is not required to establish 
a landfill permitting and enforcement system, but has elected to do so. 
Therefore, the proposed landfill will have to comply with the Campo 
Band's standards. In addition, CEPA and the California Environmental 
Protection Agency (Cal EPA) have established a cooperative agreement 
concerning permitting and enforcement at the proposed landfill.
    One commenter expressed concern that landfill proponents rather 
than the Campo Band launched a signature campaign in support of the 
proposed landfill. Although EPA recognizes that the proposed landfill 
itself is highly controversial, EPA's decision regarding the Campo 
Band's regulatory program is [[Page 21208]] not an approval or 
disapproval of the proposed landfill. Moreover, EPA's decision did not 
take into account the sources of support for or opposition to the 
landfill. Nor is EPA's decision based on the number of comments 
supporting or opposing program approval. EPA considered and responded 
to all comments on their merits.

N. EPA Public Participation Procedures

    A number of commenters expressed concern regarding public 
involvement activities related to EPA's tentative program approval of 
the Campo Band program. Specifically, commenters felt that the question 
and answer session and the public hearing were held too far away from 
the proposed landfill site in a community that is not potentially 
affected and does not rely on groundwater, and that EPA should have 
held these events at the Mountain Empire High School. One commenter 
also suggested that EPA hold additional hearings closer to the sources 
of potential impacts. One commenter expressed thanks to EPA for 
conducting the hearing in the city of Alpine.
    EPA considered a number of possible hearing locations in the area 
and found that the Alpine Elementary School was the most appropriate 
location taking into account the size of rooms available, the potential 
attendance at the hearing, and distance from local communities. The 
Alpine Elementary School auditorium was the only available room EPA 
identified which was large enough to hold the number of people EPA 
expected to attend the hearing. A large number of people attended the 
hearing and provided comments. It was unfortunate that the location was 
not closer to the Campo Reservation. However, EPA also provided an 
extended public comment period, from May 11 to August 1, 1994 for 
submittal of written comments.
    One commenter felt that the Federal Register notice should have 
been mailed to people and organizations who submitted previous written 
comment or made statements at previous U.S. EPA public hearings on the 
proposed landfill. First, EPA would like to clarify that extensive 
efforts were made to make all relevant materials available to all 
interested parties. EPA had not held previous hearings on the proposed 
landfill. (EPA has a direct permitting role for the proposed landfill 
under the Clean Air Act. However, the Clean Air Act draft permit 
hearing was held after the hearing on tentative program approval. Both 
hearings were held in the same location.)
    Second, in accordance with RCRA section 7004(b)(1), EPA published 
the tentative determinations in the Federal Register and provided an 
opportunity for public comment. A public hearing may be held at the 
discretion of the EPA Regional Administrator, in which case EPA must 
provide public notice of the hearing. EPA conducted a public hearing 
after receiving public interest in holding a hearing. EPA sent the 
entire Federal Register notice out to persons who requested the notice. 
EPA also published notice of the tentative decision and the hearing in 
local newspapers. In addition, EPA developed a fact sheet on the 
tentative decision which was sent to approximately 150 people prior to 
the public hearing. Persons receiving the fact sheet were encouraged to 
contact EPA to discuss questions and request more information such as 
the Federal Register notice. EPA also placed extensive information on 
the tentative decision, including the Campo Band's application for 
program approval, in two local repositories (the CEPA office and the 
public library in the town of Campo) and at the EPA Region 9 office in 
San Francisco. Information about the locations of the application and 
other material was noted in the fact sheet that was distributed.
    One commenter also suggested that EPA's announcement failed to 
indicate which portions of the Campo Band's program were ``as 
stringent'' as the Federal regulations and which portions were not. The 
underlying premise of EPA's tentative determination of adequacy was 
that all portions of the Campo Band's program were as stringent as the 
Federal regulations. This was indicated in the fact sheets. A detailed 
analysis of how the Campo Band's program compared with the Federal 
requirements was available in the Federal Register notice and the 
information in the repositories.
    One commenter was concerned that many people in Mexico could not be 
at the hearing and could not speak up. EPA made extensive efforts to 
encourage participation from Mexico. Several speakers from Mexico were 
present at the hearing and made comments. In order to facilitate their 
participation, EPA provided simultaneous translation, so that hearing 
participants could understand the comments made in either Spanish or 
English, and so that the court reporter, who recorded all comments at 
the hearing, could record those made in Spanish for EPA's response.

O. The Campo Band's Application for Program Approval

    Two commenters raised concerns about the completeness of the Campo 
Band's solid waste permitting program application. This concern is 
related to two issues discussed in the tentative determination, 59 FR 
24422, 24426-27 (May 11, 1994).
    First, as EPA explained in the tentative determination, specified 
portions of the Campo Band's then-existing codes and regulations were 
not adequate to assure compliance with the federal regulations. 
However, at the time of the tentative determination, the Campo Band had 
submitted draft revisions to those portions of its codes and 
regulations. Those draft revisions--Addendum I to the application--were 
included in the information made available to the public during the 
public comment period. EPA explained in the tentative determination 
that it had reviewed these draft revisions and that they were adequate 
to assure compliance with the federal regulations. EPA went on to 
explain that, if the draft revisions were fully adopted before EPA's 
final determination, the Agency would approve the Campo Band's entire 
solid waste permitting program--including the revised portions. This 
gave the public an opportunity to comment on whether EPA should approve 
the program if the draft revisions replaced the then-existing 
provisions. On June 13, 1994 the Campo Band submitted the final, fully 
adopted regulations as Addendum II to its application. These final 
regulations were also made available to the public during the public 
comment period. The final regulations are identical to the regulations 
as modified by the draft revisions.
    Second, several of the Campo Band's solid waste regulations in 
effect at the time the Campo Band submitted its application had been 
adopted as emergency regulations--without public participation--and 
would, pursuant to Campo law, expire unless affirmed as final 
regulations. In its tentative determination, EPA explained that these 
regulations must be affirmed, unaltered, prior to EPA's final 
determination in order for EPA to approve those portions of the Campo 
Band's solid waste permitting program. The Campo Band submitted the 
affirmed, permanent regulations to EPA on June 13, 1994. These final 
regulations were made available to the public during the public comment 
period. The final regulations are identical to the emergency 
regulations.
    Therefore, EPA's final determination is based on provisions of the 
Campo Band's laws and regulations which were made available to the 
public during the public comment period. [[Page 21209]] 
    One commenter suggested that EPA's comments on the Campo Band's 
draft application revealed a number of serious inadequacies in the 
Campo Band's regulations. EPA did make a number of substantial comments 
on the Campo Band's draft application. However, in response to EPA's 
comments, the Campo Band either made necessary changes to its program 
or the application, or explained to EPA's satisfaction how the existing 
program met the federal standards. EPA worked very closely with CEPA 
for many months in reviewing and revising its regulations. The review 
of regulatory programs is a lengthy and detailed process. The process 
is particularly complicated when EPA reviews an existing and complex 
regulatory program like the Campo Band's. EPA's comments on the Campo 
Band's draft application were the first in a series of comments on the 
Campo Band's program and requested clarifications of many aspects of 
the Campo Band's program.

P. Hazardous Waste Issues

    A number of commenters expressed concern over who will ensure that 
hazardous wastes are not taken at the proposed landfill because the 
state has no enforcement power on an Indian reservation. One commenter 
stated that there would not be a hazardous waste problem at the 
landfill because people know what they can and cannot put in their 
trash and loads are checked for hazardous waste.
    Federal requirements under 40 CFR 258.20 prohibit receipt of 
hazardous waste at municipal solid waste landfills. Owners and 
operators of landfills must comply with these requirements. The Campo 
Band's regulations require procedures which are as stringent as the 
federal standards. CEPA is responsible for ensuring that landfills 
comply with these standards.
    Several commenters asked what has been done about allegations of 
possible illegal disposal of hazardous waste at a car crushing 
operation on the Campo Reservation. Under the RCRA hazardous waste 
program, EPA has direct permitting and enforcement authority. Because 
there was a possible hazardous waste violation, EPA inspected the site. 
EPA representatives visited the site on March 1, 1994. A site 
investigation report was completed in August, 1994. The investigation 
found no hazardous waste at the site and no evidence of past disposal 
of hazardous waste.

Q. EPA's Program Review Procedures

    The San Diego Astronomy Association (SDAA) submitted comments 
concerning the potential impacts of the proposed landfill on the SDAA's 
observatory, which the SDAA stated is located approximately 1 mile 
downwind from the proposed landfill. The SDAA asserted that its 
concerns should be given special consideration, over that of 
residential and agricultural interests, because it is a pre-existing, 
government-recognized, public, educational and scientific organization. 
As stated earlier, today's decision is on program approval for the 
Campo Band, not on permitting the proposed landfill. Therefore, the 
specific comments on the potential impacts from the proposed landfill 
are not relevant to this determination.
    The SDAA also asserted that EPA has stated no precedents for 
granting program approval under similar circumstances, and that 
therefore it would be ``irresponsible, unprecedented, litigious, and a 
failure of the public trust'' to approve the Campo Band's program. EPA 
understands the term ``similar circumstances'' in the comment to mean 
approval of a program under which a landfill could be operated within 1 
mile of a facility for observing astronomical phenomena and educating 
the public. However, EPA is aware of no law preventing the siting or 
operation of a landfill near such facilities. Therefore, a landfill may 
be constructed and operated within 1 mile of SDAA's observatory 
regardless of whether EPA approves the Campo Band's solid waste 
permitting program.
    If the term ``similar circumstances'' in the comment was intended 
to mean the physical location of the landfill which has been proposed 
for the Campo Reservation, EPA's responses to concerns about the 
landfill itself are addressed under Category K above. If the intent was 
to refer to approval of tribal solid waste programs, EPA's authority to 
approve tribal solid waste programs is discussed above under Category 
A. EPA therefore believes that the precedential effect of approving the 
Campo Band's program will be to ensure that solid waste management in 
Indian country is properly regulated to protect human health and the 
environment.
    One commenter expressed concern that EPA's decision-making 
procedure was not sufficiently conservative in placing the burden of 
substantiation on the permitting requester. Congress established the 
standard to be met by state and tribal solid waste programs in RCRA 
section 4005(c)(1)(B)--they must demonstrate that landfills within 
their jurisdictions will comply with the Federal Criteria in 40 CFR 
part 258. As EPA explained in its tentative approval of the Campo 
Band's program, EPA interprets this standard to require, at a minimum, 
demonstrating that the state or tribal program's technical requirements 
are as stringent as the federal regulations, that the state or tribe 
will issue permits to all new and existing landfills, that the 
requirements and permits are enforceable, and that public participation 
in permitting and enforcement actions is provided. EPA believes that 
the Campo Band's program meets these standards.
    EPA's procedure in reviewing applications for approval of solid 
waste permitting programs is very lengthy and detailed. The state or 
tribe seeking a program approval determination must submit an 
application that consists of a letter from the program director 
requesting program approval, a description of the program, copies of 
all applicable statutes, regulations and guidance, and a legal 
certification that the laws are fully effective and enforceable. The 
burden of demonstrating the adequacy of the program is on the 
applicant. In the case of the Campo Band's application, EPA worked 
closely with CEPA, carefully evaluating each provision of the Tribe's 
program and in many cases requiring substantial changes to the program 
before making the tentative determination that the program assures 
compliance with the federal regulations.
    The SDAA requested that EPA provide the professional qualifications 
of the EPA staff and management involved in making the determination, 
in order that the SDAA can assess their professional maturity and 
wisdom and determine what level of astronomy background should be 
provided to defend the SDAA opposition to the determination. EPA 
believes that the question of whether the Agency has properly approved 
a state or tribal solid waste program should be addressed through 
discussion of the standards and procedures the Agency has applied. The 
standard and the procedures employed by EPA in evaluating the Campo 
Band's solid waste program, and the basis for EPA's determination that 
the Campo Band's program is adequate, have been fully set forth in the 
tentative determination, published at 59 FR 24422 (May 11, 1994), and 
in this response to comments and final determination.

IV. Decision

    In the tentative determination, EPA proposed to approve specified 
parts of the Campo Band's program for which existing tribal law was 
adequate to ensure compliance with the Federal Criteria. At that time 
EPA also proposed [[Page 21210]] to approve all of the Campo Band's 
program if draft regulatory requirements submitted to EPA with its 
April 18, 1994 application addendum were adopted before EPA's final 
determination. In addition, EPA noted that before EPA could grant 
partial or full program approval, the Campo Band had to reaffirm the 
February 13, 1994 promulgation of emergency regulations submitted with 
its final application. On June 13, 1994, EPA received the final, 
adopted revisions to the Campo Band's MSWLF permit program. In 
addition, as explained under Category I above, EPA received amendments 
to the Tribal Environmental Policy Act of 1990 made in response to 
comments received by EPA during the public comment period.
    After reviewing these revisions, and after thorough consideration 
of the public comments, I conclude that the Campo Band's application 
for adequacy determination meets all of the statutory and regulatory 
requirements established by RCRA. Accordingly, the Campo Band is 
granted a determination of adequacy for all portions of its municipal 
solid waste permit program.
    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).
    Today's action takes effect on the date of publication. EPA has 
good cause under section 553(d) of the Administrative Procedure Act, 5 
U.S.C. 553(d), to put this action into effect less than 30 days after 
publication in the Federal Register. All of the requirements and 
obligations in the Tribe's program are already in effect as a matter of 
tribal law. Today's action is a determination that these requirements 
ensure compliance with the Federal Criteria in 40 CFR part 258 and does 
not impose any new requirements with which the regulated community must 
begin to comply, nor do the Campo Band's requirements become 
enforceable by EPA as federal law. Consequently, it is not necessary to 
give notice prior to making its approval effective.

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.

Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA 
generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the Act EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the Act a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    The Act generally excludes from the definition of a ``Federal 
intergovernmental mandate'' (in sections 202, 203, and 205) duties that 
arise from participation in a voluntary Federal program. The Campo 
Band's request for approval of a MSWLF program is voluntary and imposes 
no Federal intergovernmental mandate within the meaning of the Act. 
Rather, by having its MSWLF program approved, the Tribe will be able to 
implement the RCRA Subtitle D program over landfills within its 
jurisdiction, and to exercise the flexibility allowed in the rules to 
conform landfill requirements to site-specific conditions.
    In any event, the Agency does not believe that approval of the 
Tribe's program would result in estimated costs of $100 million or more 
to State, local, and tribal governments in the aggregate, or to the 
private sector, in any one year; this is due to the small size of the 
Tribe's program, and the additional flexibility that the Tribe can 
exercise. Thus, today's notice is not subject to the written statement 
requirements in sections 202 and 205 of the Act.
    As to section 203 of the Act, the approval of the Tribal program 
will not significantly or uniquely affect small governments other than 
the applicant, the Campo Band. As to the applicant, the Tribe has 
received notice of the requirements of an approved program, has had 
meaningful and timely input into the development of the program 
requirements, and is fully informed as to compliance with the approved 
program. Thus, any applicable requirements of section 203 of the Act 
have been satisfied.

    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 12, 1995.
Felicia Marcus
Regional Administrator.
[FR Doc. 95-10508 Filed 4-28-95; 8:45 am]
BILLING CODE 6560-50-P