[Federal Register Volume 61, Number 180 (Monday, September 16, 1996)]
[Notices]
[Pages 48683-48686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23653]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5550-7; Region 8]


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

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination on application of the State of 
South Dakota for program adequacy determination.

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SUMMARY: Section 4005(c)(1)(B) of the Resource Conservation and 
Recovery Act (RCRA), as amended by the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, requires States to develop and implement 
permit programs to ensure that municipal solid waste landfills (MSWLFs) 
which may receive hazardous household waste or conditionally exempt 
small quantity generator waste will comply with the revised Federal 
MSWLF Criteria (40 CFR Part 258). RCRA Section 4005(c)(1)(C) requires 
the Environmental Protection Agency (EPA) to determine whether States 
have adequate ``permit'' programs for MSWLFs, but does not mandate 
issuance of a rule for such determinations. EPA has drafted and is in 
the process of proposing a State/Tribal Implementation Rule (STIR) that 
will provide procedures by which EPA will approve, or partially 
approve, State/Tribal landfill permit programs. The Agency intends to 
approve adequate State/Tribal MSWLF permit programs as applications are 
submitted. Thus, these approvals are not dependent on final 
promulgation of the STIR. Prior to promulgation of the STIR, adequacy 
determinations will be made based on the statutory authorities and 
requirements. In addition, States/Tribes may use the draft STIR as an 
aid in interpreting these requirements. The Agency believes that early 
approvals have an important benefit. Approved State/Tribe permit 
programs provide for interaction between the State/Tribe and the owner/
operator regarding site-specific permit conditions. Only those owners/
operators located in States/Tribes with approved permit programs can 
use the site-specific flexibility provided by Part 258 to the extent 
the State/Tribal permit program allows such flexibility. EPA notes that 
regardless of the approval status of a State/Tribe and the permit 
status of any facility, the Federal landfill Criteria will apply to all 
permitted and unpermitted MSWLFs.
    The State of South Dakota applied for a determination of adequacy 
under Section 4005 of RCRA for jurisdiction over non-Indian lands for 
the Yankton Sioux Reservation, Lake Traverse (Sisseton-Wahpeton) 
Reservation and parts of the Rosebud Indian Reservation lying within 
Gregory, Tripp, Lyman and Mellette Counties. EPA has reviewed South 
Dakota's application and has made a final determination that the South 
Dakota application is adequate for all lands, other than Indian Country 
as defined in 18 U.S.C. Section 1151,  that were formerly within the 
1867 Lake Traverse Reservation boundaries and for all lands in Gregory, 
Tripp, Lyman and Mellette Counties that were formerly within the 1889 
Rosebud Sioux Reservation boundaries. EPA believes that the State of 
South Dakota has not sufficiently demonstrated that the Yankton Sioux 
Reservation was disestablished by Act of Congress (26 Stat. 286, 314), 
and thus, the lands within the exterior boundaries of the Yankton Sioux 
Reservation remain Indian Country.
    South Dakota's application for program adequacy determination and 
the all comments received in regard to that application are available 
for public review and comment.

EFFECTIVE DATE: September 16, 1996.

ADDRESSES: Copies of South Dakota's application for adequacy 
determination are available from 8:00 a.m. to 4:00 p.m. at the 
following addresses for inspection and copying: South Dakota Department 
of Environment and Natural Resources, Office of Waste Management, Foss 
Building, 523 East Capitol, Pierre, South Dakota, 57501; and U.S. EPA 
Region 8 Library, 999 18th Street, First Floor, Denver, Colorado, 
80202-2466, telephone (303) 312-6312.

FOR FURTHER INFORMATION CONTACT: Linda Walters, Mail Code 8P2-P2, 
Pollution Prevention Branch, U.S. EPA Region 8, 999 18th Street, 
Denver, Colorado, 80202-2466, telephone (303) 312-6385.

SUPPLEMENTARY INFORMATION:

A. Background

    On October 9, 1991, EPA promulgated revised Criteria for MSWLFs (40 
CFR Part 258). Subtitle D of RCRA, as amended by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), requires States to develop 
permitting programs to ensure that MSWLFs comply with the Federal 
Criteria under Part 258. Subtitle D also requires in Section 4005 that 
EPA determine the adequacy of State municipal solid waste landfill 
permit programs to ensure that facilities comply with the revised

[[Page 48684]]

Federal Criteria. To fulfill this requirement, the Agency has drafted 
and is in the process of proposing a State/Tribal Implementation Rule 
(STIR). The rule will specify the requirements which State/Tribal 
programs must satisfy to be determined adequate.
    EPA intends to approve State/Tribal MSWLF permit programs prior to 
the promulgation of the STIR. EPA interprets the requirements for 
States or Tribes to develop ``adequate'' programs for permits or other 
forms of prior approval to impose several minimum requirements. First, 
each State/Tribe must have enforceable standards for new and existing 
MSWLFs that are technically comparable to EPA's revised MSWLF criteria. 
Next, the State/Tribe must have the authority to issue a permit or 
other notice of prior approval to all new and existing MSWLFs in its 
jurisdiction. The State/Tribe also must provide for public 
participation in permit issuance and enforcement as required in Section 
7004(b) of RCRA. Finally, EPA believes that the State/Tribe must show 
that it has sufficient compliance monitoring and enforcement 
authorities to take specific action against any owner or operator that 
fails to comply with an approved MSWLF program.
    EPA Regions will determine whether a State/Tribe has submitted an 
``adequate'' program based on the interpretation outlined above. EPA 
plans to provide more specific criteria for this evaluation when it 
proposes the State/Tribal Implementation Rule. EPA expects States/
Tribes to meet all of these requirements for all elements of a MSWLF 
program before it gives full approval to a MSWLF program.

B. Procedural History of South Dakota's Application

    On April 29, 1993, South Dakota submitted an application for 
adequacy determination for the State's municipal solid waste landfill 
permit program. On October 8, 1993, (58 FR 52846), EPA determined that 
South Dakota's application for adequacy determination met all of the 
statutory and regulatory requirements established by RCRA. Accordingly, 
South Dakota was granted a determination of adequacy for all portions 
of its municipal solid waste landfill permit program. However, EPA's 
decision to approve the South Dakota MSWLF permitting program did not 
extend to Indian Country, including the following ``existing or 
former'' Indian reservations in the State of South Dakota:

1. Cheyenne River
2. Crow Creek
3. Flandreau
4. Lower Brule
5. Pine Ridge
6. Rosebud
7. Sisseton
8. Standing Rock
9. Yankton

    In the October 8, 1993, FR Notice, EPA stated that before EPA would 
be able to approve the State of South Dakota MSWLF permit program for 
any portion of Indian Country, the State would have to provide an 
appropriate analysis of the State's jurisdiction to enforce in these 
areas. Furthermore, in order for a State (or Tribe) to satisfy this 
requirement, it must demonstrate to the EPA's satisfaction that it has 
authority either pursuant to explicit Congressional authorization or 
applicable principles of Federal Indian law to enforce its laws against 
existing and potential pollution sources within any geographical area 
for which it seeks program approval.
    On October 8, 1993, the State of South Dakota submitted an 
application amendment to EPA for approval of its solid waste permit 
program ``for regulation of solid waste activities on non-Indian lands 
for the former lands of the Yankton Sioux, Sisseton and parts of the 
Rosebud Indian Reservations.'' On April 7, 1994, (59 FR 16648), EPA 
made a tentative determination that the South Dakota amended 
application was adequate under Section 4005 of RCRA for the 
disestablished areas within the former boundaries of Lake Traverse and 
Yankton Reservations and the diminished portions of Rosebud Sioux 
Reservation lying within Gregory, Tripp, Lyman, and Mellette Counties, 
excluding Indian Country presently located within these disestablished 
and diminished areas.
    EPA requested and received numerous comments from several parties 
during the following 30 day comment period and the two public hearings 
held at the Fort Randall Casino on June 1, 1994, and at Pierre, South 
Dakota on June 2, 1994. The comment period was extended beyond the 30 
day comment period and comments were accepted by EPA up through July 1, 
1994.

C. EPA's Determination

1. Lake Traverse (Sisseton-Wahpeton) Indian Reservation

    The State of South Dakota and other commenters argued that the Lake 
Traverse Reservation, created by an 1867 Treaty between the United 
States and the Sisseton and Wahpeton bands of Sioux Indians, was 
disestablished by Act of Congress in 1891 and that the lands formerly 
part of that Reservation that are now owned in fee by non-Indians do 
not qualify as Indian Country pursuant to 18 U.S.C. 1151(a). In support 
of its assertion, the State cited the U.S. Supreme Court decision in 
DeCoteau v. District County Court, 420 U.S. 425 (1975).
    Having reviewed all comments regarding the Lake Traverse 
Reservation and having consulted with the Department of Interior, EPA 
agrees with the State that the Supreme Court found in DeCoteau that the 
Lake Traverse Reservation has been disestablished. Accordingly, EPA is 
today approving the South Dakota MSWLF permitting program for all lands 
that were formerly within the 1867 Lake Traverse Reservation boundaries 
and do not otherwise qualify as Indian Country under 18 U.S.C. 1151. 
Today's approval does not extend to any trust or other lands within the 
former Lake Traverse Reservation that still qualify as Indian Country.

2. Rosebud Indian Reservation

    The State of South Dakota argued that the Rosebud Indian 
Reservation, created by an 1889 Treaty between the United States and 
the Rosebud Sioux Tribe, was diminished by Acts of Congress in 1904, 
1907, and 1910 and that the lands in Gregory, Tripp, Lyman and Mellette 
Counties formerly part of that Reservation that are now owned in fee by 
non-Indians do not qualify as Indian Country pursuant to 18 U.S.C. 
1151(a). In support of its assertion, the State cited the U.S. Supreme 
Court decision in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977).
    Having reviewed the comments regarding the Rosebud Sioux 
Reservation and having consulted with the Department of Interior, EPA 
agrees with the State that the Supreme Court found in Kneip that the 
exterior boundaries of the Rosebud Reservation has been diminished and 
no longer include Gregory, Tripp, Lyman and Mellette Counties. 
Accordingly, EPA is today approving the South Dakota MSWLF permitting 
program for all lands in Gregory, Tripp, Lyman and Mellette Counties 
that were formerly within the 1889 Rosebud Sioux Reservation boundaries 
and do not otherwise qualify as Indian Country under 18 U.S.C. 1151. 
Today's approval does not extend to any trust or other lands in 
Gregory, Tripp, Lyman and Mellette Counties that still qualify as 
Indian Country.

3. Yankton Sioux Reservation

    The State of South Dakota and other commenters argued that the 
Yankton

[[Page 48685]]

Sioux Reservation, established in the 1858 Treaty between the United 
States and the Yankton Sioux Tribe, had been disestablished by the 
United States Congress in the Act of August 15, 1884, (28 Stat. 286, 
314) and that lands formerly part of the Yankton Sioux Reservation 
which are now owned in fee by non-Indians are no longer Indian Country. 
In support of its assertion, the State cited four opinions of the South 
Dakota Supreme Court and Weddell v. Meierhenry, 636 F.2d 211 (8th Cir. 
1980). The Yankton Sioux Tribe and other commenters argued that 
Congress did not express a ``plain and unambiguous statement of 
congressional intent'' to disestablish the Yankton Sioux Reservation 
and that the State and Federal Court opinions cited by South Dakota on 
the Yankton Reservation disestablishment issue are not controlling.
    The Agency has carefully reviewed and analyzed the arguments 
presented and has consulted with the Department of Interior as to 
whether Congress has disestablished the Yankton Sioux Reservation. In 
this analysis, the Agency was mindful that the issue of 
disestablishment is a matter of interpretation of Federal laws and that 
no Federal Court had addressed the merits of the question of the 
disestablishment of the Yankton Sioux Reservation until the recent 
opinion of the U.S. District Court in Yankton Sioux Tribe v. Southern 
Missouri Waste Management District, No. 94-4217 (D.S.D. June 14, 1995). 
As the Federal District Court in South Dakota has now addressed the 
issue on the merits, the Agency will follow that Court's finding that 
Congress did not, in the Act of August 15, 1894, disestablish the 
Yankton Sioux Reservation. Thus, in the Agency's view, the lands within 
the exterior boundaries of the Reservation remain Indian Country.
    The Agency has stated previously, in its ``Final Determination of 
Partial Program Adequacy'' of South Dakota's municipal solid waste 
landfill (MSWLF) permit program, published at 58 FR 52486, 52488 (1993) 
that ``[b]efore EPA would be able to approve the State of South 
Dakota's MSWLF permit program for any portion of `Indian Country,' the 
State would have to provide an appropriate analysis of the State's 
jurisdiction to enforce in these areas. In order for a State (or Tribe) 
to satisfy this requirement, it must demonstrate to the EPA's 
satisfaction that it has authority either pursuant to explicit 
Congressional authorization or applicable principles of Federal Indian 
law to enforce its laws against existing and potential pollution 
sources within any geographical area for which it seeks program 
approval.'' As the State has failed to make such a demonstration for 
lands within the exterior boundaries of the Yankton Sioux Reservation, 
the Agency does not today approve the South Dakota MSWLF permitting 
program within the exterior boundaries of the Yankton Sioux 
Reservation.

D. Other Major Comments

    Several commenters expressly or impliedly suggested that only South 
Dakota had the technical and legal authority to provide proper 
oversight of MSWLFs and protect the environment. Section 4005(c)(1)(B) 
of RCRA, as amended, requires both States and Tribes to develop and 
implement permit programs to ensure that municipal solid waste 
landfills (MSWLFs) which may receive hazardous household waste or 
conditionally exempt small quantity generator waste will comply with 
the revised MSWLF Criteria (40 CFR part 258). EPA is tasked with 
determining whether States or Tribes have adequate permit programs for 
MSWLFs. In making its determination of adequacy, EPA reviews such 
technical and legal criteria as location, operation, design, 
groundwater monitoring, corrective action, closure, post-closure, 
financial assurance, enforcement and intervention authorities, public 
participation, and compliance monitoring to ensure enforceable 
standards comparable to EPA's revised MSWLF criteria exist in the State 
or Tribal application. The agency believes that this type of review of 
a State or Tribal application is sufficient to ensure that proper 
oversight is assured. 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). 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. Furthermore, should EPA not find 
a State or Tribal application to be adequate as described above, EPA 
may enforce 40 CFR Part 258 if an imminent and substantial endangerment 
exists.
    Another commenter expressed disappointment that EPA raised the 
issue of jurisdiction in environmental issues such as solid waste. EPA 
is required by RCRA Section 4005(C) and by 40 CFR Part 258 to authorize 
only those regulatory programs in which the applying State or Tribe can 
lawfully enforce its laws in court. The Agency believes that 
jurisdiction is thus appropriate and necessary to the effective 
enforcement and administration of regulatory programs intended to 
protect public health and the environment.
    Another commenter argued that there should be only one central 
authority possessing the expertise, capability, and jurisdiction to 
``fully and completely administer the national solid waste policy in 
the State of South Dakota.'' The commenter further suggested that, in 
this case, the central authority should be the State of South Dakota. 
The Agency, in reaching its decision to treat Indian tribes as 
politically separate and distinct from the states, is following over 
two hundred years of well-established legal and political practice. 
See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Further, 
the State of South Dakota has, as noted above, failed to make an 
adequate demonstration of jurisdiction over Indian Country.
    Another commenter, apparently accepting that the Supreme Court had 
found the Lake Traverse Reservation to be disestablished in DeCoteau 
and the Rosebud Reservation diminished in Kneip, argued that the Agency 
should specify those areas that might be Indian Country within the 
meaning of 18 U.S.C. 1151(b), which defines Indian Country as including 
``dependent Indian communities.'' No commenters have specified any 
areas that might be dependent Indian communities within the former Lake 
Traverse Reservation or the diminished portion of the Rosebud 
Reservation. Nevertheless, the Agency believes that the definition of 
Indian Country as set by Congress in 18 U.S.C. 1151 provides a useful 
and workable guideline for determining areas of state authority in this 
as in other areas of governance. Any controversy that may arise 
regarding the inclusion of specific tracts in the definition of Indian 
Country, such as in determining the exact geographical location of 
political boundaries, can be dealt with as they may arise.
    Several commenters raised objections to tribal regulation of non-
Indian operators of landfills and argued that non-members have no 
avenue for participation in tribal governments or constitutional 
safeguards in tribal courts. Another commenter responded that anyone 
can request and speak before or petition the Yankton Sioux tribal 
government, whether they are Indian or non-Indian and that tribal 
courts are open to all individuals, whether Indian or non-Indian.

[[Page 48686]]

    EPA is very aware of the concerns of non-Indians regarding fair 
treatment before tribal governments, but has no reason to believe that 
tribal governments are either more fair or less fair than other 
governments. However, the Agency is today considering only the question 
whether the State of South Dakota has regulatory authority, not whether 
the tribes have or should have such authority. The question of tribal 
regulatory authority is addressed only when a tribe applies for program 
authorization, as the State of South Dakota has done here.
    Several commenters discussed the design, permitting and siting of 
the proposed landfill at Lake Andes, making thoughtful and detailed 
comments both for and against the landfill, including health, safety 
and environmental impacts, as well as issues of environmental justice 
and racism. Today's decision, however, is limited to the question 
whether the State of South Dakota has met the requirements of Section 
4005 of RCRA and 40 CFR Part 258 regarding authorization of the State's 
Program for the Lake Traverse and Yankton Sioux Reservations and the 
diminished portion of the Rosebud Sioux Reservation. Accordingly, the 
Agency is not required to address the merits of the Lake Andes siting, 
design and permitting criteria. However, all permits issued under a 
State or Tribal program determined by EPA to be adequate must meet 
minimum Federal standards, including a permit to Roberts County for a 
new sanitary landfill.

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

    EPA has determined that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
By approving State/Tribal municipal solid waste permitting programs, 
owners and operators of municipal solid waste landfills who are also 
small entities will be eligible to use the site-specific flexibility 
provided by Part 258 to the extent the State/Tribal permit program 
allows such flexibility. However, since such small entities which own 
and/or operate municipal solid waste landfills are already subject to 
the requirements in 40 CFR Parts 258 or are exempted from certain of 
these requirements, such as the groundwater monitoring and design 
provisions, this approval does not impose any additional burdens on 
these small entities.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b), 
I hereby certify that this approval will not have a significant 
economic impact on a substantial number of small entities. It does not 
impose any new burdens on small entities; rather this approval creates 
flexibility for small entities in complying with the 40 CFR Part 258 
requirements. This rule, therefore, does not require a regulatory 
flexibility analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), P.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 Agency does not believe that approval of the State'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 additional flexibility that 
the State can exercise (which will reduce, not increase, compliance 
costs). 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 State program 
will not significantly or uniquely affect small governments other than 
the applicant, the State of South Dakota. As to the applicant, the 
State 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 of the Solid Waste Disposal Act as amended; 42 
U.S.C. 6912, 6945, and 6949(a).

    Dated: June 24, 1996.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 96-23653 Filed 9-13-96; 8:45 am]
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