[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Notices]
[Pages 66402-66403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21822]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7992-9]


Safe Drinking Water Act Determination; Underground Injection 
Control Program, Determination of Indian Country Status for Purposes of 
Underground Injection Control Program Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of prospective determination.

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SUMMARY: EPA must determine whether any of the approximately 160 acres 
of land located in the southeast portion of Section 8, Township 16N, 
Range 16W, in the State of New Mexico, is part of a dependent Indian 
community under 18 U.S.C. 1151(b) and, thus, considered to be ``Indian 
country.'' This determination is necessary in order to establish 
whether EPA or the New Mexico Environment Department is the appropriate 
agency to issue a particular underground injection control permit under 
the Safe Drinking Water Act. EPA is seeking comments and information 
from the public and all interested parties regarding the possible 
Indian country status of this land and is

[[Page 66403]]

considering whether to hold a public hearing on the matter.

DATES: Comments and information on this matter, and any request that a 
public hearing be held, must be received by January 3, 2006. EPA will 
consider all timely comments and information that pertain to the Indian 
country status of the land in question.

ADDRESSES: Written comments should be submitted to David Albright, 
Ground Water Office Manager, at U.S. Environmental Protection Agency, 
Region 9, 75 Hawthorne Street, Mail Code: WTR-9, San Francisco, CA 
94105. You may also submit comments by fax at 415.947.3549 or by e-mail 
at [email protected].

FOR FURTHER INFORMATION CONTACT: David Albright, at 
[email protected], or 415.972.3971.

SUPPLEMENTARY INFORMATION: Hydro Resources, Inc. (HRI) proposes to 
operate a uranium in-situ leach mine on an approximately 160-acre 
parcel of land located in the southeast portion of Section 8, Township 
16N, Range 16W in the State of New Mexico (``Section 8 land''). HRI 
must apply for and receive an underground injection control (UIC) 
permit under the Safe Drinking Water Act (SDWA) to conduct its mining 
activities. The State of New Mexico has been authorized by EPA to 
administer the SDWA UIC program in the State, but that authorization 
does not extend to Indian country. Due to the State's lack of 
authorization in Indian country and as a result of a court decision 
discussed below, EPA must determine whether or not the Section 8 land 
is Indian country as defined by 18 U.S.C. 1151. EPA is seeking comments 
and information from the public and all interested parties regarding 
the Indian country status of the land HRI intends to use for its mining 
activities. Additionally, recognizing the U.S. Department of the 
Interior's expertise in these matters, EPA is soliciting the views of 
and working with the Department.
    In the late 1980s, HRI sought an UIC permit for its property 
located within Section 8. The land is located in an area commonly 
referred to as the ``Eastern Agency of the Navajo Nation'' and the 
Navajo Nation has historically asserted that the land in question is a 
dependent Indian community. After considering materials submitted by 
the Navajo Nation and the New Mexico Environment Department (NMED), EPA 
determined that the Indian country status of the Section 8 land was in 
dispute and, thus, that EPA would be the appropriate agency to issue 
the SDWA UIC permit. The State of New Mexico and HRI challenged EPA's 
determination with respect to the Indian country status of the land in 
question. In 2000, in HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000), the 
United States Court of Appeals for the Tenth Circuit upheld EPA's 
decision to implement the UIC program throughout HRI's Section 8 land 
because the Indian country status of that land was in dispute. The 
Court remanded the matter to EPA to make a final administrative 
decision on the Indian country status of the disputed land.
    Recently NMED received a request from HRI for an UIC permit to 
operate a uranium in-situ leach mine in Section 8. As a result, NMED 
has formally requested that EPA make a decision on the Indian country 
status of the Section 8 land. EPA's decision whether the land at issue 
is Indian country will determine whether EPA or NMED is the appropriate 
agency to consider the permit request from HRI.
    The United States Supreme Court in Alaska v. Native Village of 
Venetie Tribal Government, 522 U.S. 520 (1998), identified two 
requirements for determining whether land constitutes a dependent 
Indian community under 18 U.S.C. 1151(b): (1) Whether land has been 
validly set aside by the Federal government for the use of Indians and 
(2) whether that land is subject to federal supervision. Additionally, 
the court in HRI v. EPA noted that, prior to Venetie, the Tenth Circuit 
Court of Appeals required a community of reference determination as the 
first step in determining a dependent Indian community. It also 
concluded that, because the Supreme Court in Venetie was not presented 
with the question of the proper community of reference and did not 
speak directly to the propriety of a community of reference analysis, 
Tenth Circuit precedent continues to require a community of reference 
analysis.
    To ensure EPA has all possible relevant information for making its 
determination on the Section 8 land status, EPA requests that the 
public submit information on the following items: the nature of the 
area in question; Indian and non-Indian land uses; relevant aquifer 
uses; land ownership patterns; use of area infrastructure and services 
by Indians and non-Indians; the relationship of inhabitants in the area 
to Indian tribes and to the Federal government; activities of 
government agencies toward the area; elements of cohesiveness 
manifested either by economic pursuits in the area, common interests, 
or needs of inhabitants supplied by the locality; whether any lands 
have been set apart for the use, occupancy, and protection of dependent 
Indian peoples; whether that land is subject to Federal supervision; 
and any other relevant information that might assist EPA in making its 
determination.
    EPA welcomes written comments and information from the public and 
interested parties on whether the Section 8 land constitutes a 
dependent Indian community in whole or in part. At this time, EPA is 
limiting its analysis to the question of whether the Section 8 land is 
a dependent Indian community and, thus, Indian country and will not 
consider any issues, information, or comments regarding the permitting 
of mine operations on the Section 8 land. As part of the determination 
process, EPA is also consulting with the Navajo Nation.
    If there is sufficient public interest and a request is made, EPA 
may consider holding a public hearing to elicit further input from the 
public on this matter. Such a hearing would not constitute a formal 
adjudication, but rather would provide an informal opportunity for the 
public and interested parties to provide additional comments and 
information.

    Dated: October 24, 2005.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 05-21822 Filed 11-1-05; 8:45 am]
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